1836433 (Refugee)

1836433 (Refugee) [2024] AATA 921 (14 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1836433

COUNTRY OF REFERENCE: China
MEMBER:R Guemy
DATE:14 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 February 2024 at 10:08am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Catholic – underground church – threats of detention – physical assault – family violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, [an age]-year old female and citizen of China born in Fujian province, applied for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant entered Australia [in] September 2017. She applied for a protection visa on 3 November 2017.
The delegate refused to grant the visa on the basis that the applicant’s written claims and evidence did not provide a sufficient basis to be satisfied that she was a victim of persecution for her religious beliefs or that she would face harm of any kind for such reasons on return to China. The delegate found that the applicant’s employment history meant that she had a means to subsist if she returned to China and that her ability to leave China in September 2017 indicated that she was not of interest to Chinese authorities because country information indicated that if she was then she would have had difficulties doing so.
CLAIMS AND EVIDENCE
Evidence given to the Department
The applicant provided a copy of her passport issued by the People’s Republic of China in Shaanxi.
In her protection visa application the applicant claimed that:
i.she was persecuted by the Chinese government because she believed in underground Christianity
ii.when she was a child her mother was an underground Christian and told her that the lord could help them and this led the applicant to believe in underground Christianity, which helped improve her body’s conditions;
iii.police came to her home to force the applicant and her mother to give up their belief and beat them because they refused to do so;
iv.she wouldn’t be able to relocate to another area in China because the situation was the same in all of China;
v.state protection wasn’t available from authorities because the government in China was corrupt and the police there colluded with government officials;
vi.the applicant’s mother sent the applicant abroad because she was worried about the applicant’s safety;
vii.the applicant’s friend told her that police often went to the applicant’s home to harass and monitor the applicant’s family;
viii.her mother wrote a public letter speaking the truth of underground Christianity;
ix.the police went to the applicant’s home to threaten her mother to disclose the applicant’s whereabouts;
x.if she returned to China she will be persecuted by the police, she would go to prison where she would suffer mental and physical harm and would die.
On 16 November 2018, the delegate invited the applicant to attend an interview scheduled for 3 December 2018. The applicant failed to attend the scheduled interview.
Evidence given to the Tribunal – hearings on 18 December 2023 and 23 January 2024
On 1 December 2023 the Tribunal invited the applicant to appear before to give evidence and present arguments on 18 December 2023. The Tribunal resumed its hearing with the applicant on 23 January 2024. The applicant appeared before the Tribunal on both scheduled dates. The hearings were conducted with the assistance of an interpreter in the English and Mandarin languages.
At the beginning of the hearing on 18 December 2023 the applicant indicated that she had recently undergone IVF treatment and, as a consequence of this, was suffering from irritability, anxiety and memory loss. She also claimed to have been suffering from undiagnosed depression which she said might affect her memory and recall of details. The Tribunal has taken this into account in considering the applicant’s oral evidence given at hearing.
The applicant gave evidence that she paid an alleged lawyer named [Lawyer A] approximately $2000 to help her lodge her protection visa application, however the legal practice this person was connected with was closed down after the lawyer was investigated and arrested. The applicant said that the lawyer in question was known for being irresponsible and that was the reason why the applicant wasn’t aware of her department interview and failed to attend it. She also said that she was not sure whether what she told her lawyer was reflected in her protection visa application or whether the application reflects her circumstances.
The applicant gave evidence that when she was [age] years old she began a relationship with a [Nationality 1] man, became pregnant and gave birth to a son who is now [age] years old and currently resides in Australia. She does not have a close relationship with her son who was primarily raised by the applicant’s mother while the applicant worked in various parts of China.
Harm from siblings
The applicant gave extensive evidence about her family structure which was not set out in her written protection visa application. The applicant’s mother gave birth to [specified children] and also adopted a daughter with her first husband. Her mother’s first husband who is now deceased. The applicant’s mother then gave birth to the applicant with a second husband, the applicant’s father, who is also now deceased.
The applicant described a negative and traumatic relationship with her siblings, claiming that they bullied and hit her all the time when she was living in China. She claimed that they did this because they did not have a good relationship with the applicant’s father; that they were envious that her father was, at the time, still alive; and because they looked down on her father for marrying into her mother’s family, meaning that the children (including the applicant) would take the mother’s surname rather than her father’s surname, as is the usual custom in China. The applicant further claimed that her older [sibling] hit her, spat in her food, verbally abused her and took her money. She pointed to scars on her face and body that she alleged were the result of her siblings beating her and burning her with cigarettes when she was in China. She went to hospital for her injuries but had no reports or records because of the passage of time since those events happened.
The applicant claimed that her siblings may have been responsible for her father’s death when she was [age] years old. He had died after drinking and she suspects that her half-brother may have poisoned him. There was no investigation after he passed away or observation by the family of traditional Chinese mourning customs. She fears that she will be her sibling’s next target and that they may beat her to death. The Tribunal indicated to the applicant that this appeared to be entirely speculative and asked whether she had any evidence as to the cause of her father’s death such as a post-mortem, coroner or toxicology report. The applicant told the Tribunal that she had no such evidence and could only say that she suspected that her siblings were involved in her father’s death, though she agreed that this was speculation on her part.
The applicant gave evidence that the last time she had contact with her half-brother was approximately 9 years ago, around the time he had been released from prison. She claimed that this was in [a named] City and that on that occasion he tried to open her bag and then slammed her. The applicant claimed that her half-brother had served [a] criminal detention sentence, although she didn’t know what he had done. The applicant said that the last time she saw her [other siblings] was around 7 to 8 years ago. Since coming to Australia the applicant has not had any contact with her siblings and supposed that [they] were married with children and living in adjacent villages to the one that her mother lived in, and that [the] half-brother was married with [children] and was living in Fuqing City.
The applicant gave evidence that immediately before leaving China to come to Australia she had been living and working in Fuqing City for a year. She claimed that her mother sent she and her son abroad to protect them from the applicant’s siblings. The applicant claimed that she survived because her mum did her best to protect her. Without her, the applicant wasn’t sure what would have happened.
The applicant claimed that if she returned to China she would be harmed by her siblings and that her half-brother may beat her to death because of personal conflict that he had with the applicant’s biological father. She also claimed that her half-brother’s presence would worsen her depression, that her siblings would demand money from her because she had been living in Australia and would consider that she is now wealthy and that she would have no social status because she is the daughter of her siblings’ stepfather.
The applicant told the Tribunal that she doesn’t think that the police in China could protect her because they would consider problems between siblings or family members to be a domestic issue and would not intervene. She also could not go to another city or another part of China because her siblings would threaten their mother, having previously hit her, and that they would eventually find out about the applicant’s return to China through friends and relatives and would find the applicant and harm her. In addition to this, the applicant would eventually have to visit her mother in her hometown and her half-brother would find out and then harm the applicant.
Underground Christian practice
The Tribunal asked the applicant at hearing whether she followed any religion, to which she responded “Christianity”. The Tribunal asked her which denomination of Christianity she identified with and she indicated that she was Catholic. The applicant claimed that her mother was also an underground Christian but the applicant was unable to identify which denomination
She gave evidence that she had been a Catholic for 10 years starting in China. A colleague named “[name]” introduced her to the religion while the applicant was working in a [shop] in Fuqing City. She attended church meetings with friends once a week from 2013 until leaving China. Church meetings took place on Sundays from 7 to 9PM at the homes of various church members to avoid police searches and generally consisted of about 10-20 people. The Tribunal asked the applicant the name of the church that she attended and she said that because it was an underground church it did not have a name.
She described how she was baptised and that this took place one or two weeks after she first started attending church meetings but couldn’t recall which year this took place even though she had indicated that she began practicing Christianity in 2013.
The applicant also described what happened during the church meetings that she attended, namely that church members would take turns at praying, reading the Bible and studying a few pages of the Bible each week. Bible study was led by a teacher and the session would finish by saying “Amen”. There were 2-3 different church leaders who were referred to as “Father”. The applicant gave evidence that those who she had attended church meetings with had told her that the priests who led the underground church were arrested. The applicant indicated that in addition to attending underground church meetings, she prayed daily and read the Bible every day.
The Tribunal asked the applicant about her written claims to have been arrested and assaulted along with her mother because of her underground church practice. The applicant told the Tribunal that neither she nor her mother had ever been arrested or detained in China, however the underground church meetings she attended in Fujian Province were raided by local police on several occasions. The applicant claimed that on each occasion she was either able to run away or hide, so was never arrested or detained or had her personal details taken by Chinese authorities. The applicant nevertheless claimed that police made enquiries with her mother about the applicant’s whereabouts following these events. The applicant said that these events occurred approximately 7 to 8 years ago. The applicant also said that she suspected that her half-brother told local police about the underground church meetings that she attended and this led to the raids. The applicant did not have any corroborative evidence to support this claim.
The Tribunal also asked the applicant about her written claim in her protection visa application form that her mother wrote a public letter to state the truth of underground Christianity and that this led to Chinese authorities harassing her mother and demanding to know the applicant’s whereabouts. The applicant told the Tribunal she did not know anything about this, was unaware of any letters that her mother may have written and appeared confused about the inclusion of this claim in her protection visa application.
The applicant told the Tribunal that she had not attended church services in Australia because no one had led her to a church, she had been busy, she had no friends to attend services with, she had undergone surgery for IVF purposes and she had purportedly been suffering from depression (although she provided no corroborative evidence of any professional medical diagnosis of such).
The applicant explained to the Tribunal how Christianity has impacted her and how it has guided her in life. She indicated that she asks God and Jesus Christ to help her overcome the unhappy and dark things in life and that she is able to call upon Jesus to listen to her. She also recounted calling the Lord’s name while she was lying on the surgery bed receiving treatment for [a medical condition] and indicated that she believed that the Lord saved her and brought her to Australia. Her mood has improved since being in Australia and she thanks the Lord for this and prays to him every day and night.
In spite of this, when the Tribunal asked the applicant to identify and explain any particular parts of the Bible that had personal significance to her, she was only able to vaguely indicate that her favourite story was about Jesus Christ and Satan and that Jesus sacrificed himself on the cross, lots of blood flowed from his body and that was set off by Adam. The Tribunal also asked the applicant about significant religious holidays that she celebrated, and she was unable to remember the dates for either Christmas or Easter, principal holidays in the Catholic calendar. In addition to this, she was unable to name the current Pope and was unaware of the Pope’s role as the worldwide head of the Catholic Church. The Tribunal expressed its concern that her knowledge of Catholic doctrine, holidays and important figures in the Catholic church was very vague and that this might lead the Tribunal to find that she was not a genuine committed Catholic, and that if she returned to China she would not practice Christianity there and therefore would not experience any problems or harm. The applicant told the Tribunal that her memories are poor and that her knowledge of Catholicism was underdeveloped but that the Lord is always with her in her heart.
The applicant claimed that if she returned to China she would experience problems with Chinese police due to her unfavourable record from having attended underground church meetings and that they would not allow her to practice Christianity.
The Tribunal asked the applicant whether she would continue to practice Christianity if she had to return to China and she told the Tribunal that she would. When the Tribunal asked the applicant how she would practice her faith she told the Tribunal that she would go to church once a week on Sundays. When the Tribunal asked her to confirm whether she would be open to attending a state-sanctioned church in China, the applicant expressed surprise at their existence and indicated that if they indeed exist, then she would be happy to attend church services there. She indicated that her principal fear was harm from her siblings rather than her religious practice.
Post-hearing evidence
Following the resumed Tribunal hearing, on 29 January 2024 the Tribunal received through the applicant’s authorised recipient original and translated copies of the following documents:
i.statement of [Doctor A] of [a named] Health Center, [in Town 1], Fuqing City, prepared by [Manager A] dated [in] January 2024 attesting to the applicant’s alleged attendance for medical treatment on several occasions for cracked upper lip, deep wound on forehead and lip, and bruises on hands and feet; and
ii.certificate from [Church 1] dated 1 January 2024 attesting to the applicant’s membership of the church since 2005 and her participation in church affairs and activities.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the copy of the applicant’s passport and her evidence given at hearing on 18 December 2023 and 23 January 2024 and finds that she is a Chinese national. The Tribunal finds that China is the applicant’s country of nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act.
The Tribunal has considered the applicant’s written claims, oral evidence given at hearings on 18 December 2023 and 23 January 2024, and the statements she provided after the resumed hearing.
The Tribunal accepts the applicant’s account that an alleged lawyer named [Lawyer A] prepared and lodged a protection visa application on her behalf and included claims and evidence in it that were unknown to the applicant. The Tribunal explored these written claims with the applicant during the course of the hearings on 18 December 2023 and 23 January 2023. While the applicant’s oral evidence was broadly consistent with certain aspects of these written claims, such as problems she claimed to have experienced in China from attending underground church meetings, the applicant also told the Tribunal that other past events set out in her written claims such as her mother writing a public letter speaking the truth about underground Christianity, and the applicant being arrested and detained with her mother by Chinese authorities did not occur. The Tribunal finds that neither the applicant nor her mother were ever arrested and detained in China and that her mother never wrote a public letter about underground Christianity.
Harm from siblings
The Tribunal found the applicant’s oral evidence at hearing about her family history to be credible and accepts that she was subjected to occasional abuse by her siblings while she was growing up and living in China. The Tribunal finds that this was due to conflict between her biological father and her siblings, particularly her half-brother who occasionally physically clashed with the applicant’s father. Although the Tribunal accepts that the relationship between her father and her half-brother was fraught, it does not accept that the applicant’s half-brother or any of her other siblings conspired to kill the applicant’s father or otherwise caused his death. The applicant provided no corroborative medical evidence of her father’s cause of death to allow the Tribunal to assess this claim. The Tribunal finds her claim in this respect to be entirely speculative, something that the applicant conceded was the case during the resumed hearing on 23 January 2024.
The Tribunal has had regard to the written statement of [Doctor A] of [a named] Health Center, [in Town 1], Fuqing City, prepared by [Manager A] and dated [in] January 2024. Although the Tribunal has concerns about the provenance of the written statement and its reliability given that it is dated some 34 years after the events that it refers to took place, the Tribunal is nevertheless prepared to accept that it supports the applicant’s claims to have been occasionally abused by her siblings when she was a child.
Although the Tribunal accepts that the applicant experienced occasional physical abuse from her siblings in the past and that this appears to have caused an ongoing subjective fear on her part that the same will happen again in the future, the Tribunal must assess whether there is a real chance that she will suffer harm if she returned to China and, if so, whether such harm amounts to serious harm for the purposes of s 5J(4)(b).
The Tribunal finds that the applicant is no longer in contact with her siblings and that the last time she had contact and experienced problems or harm from her half-brother was approximately 9 years ago when he attempted to take money from her and slammed her in the process. The Tribunal finds that the last time she saw her sisters was approximately 7 to 8 years ago. The Tribunal bases this finding on the applicant’s oral evidence given at the resumed Tribunal hearing on 23 January 2024. The applicant told the Tribunal during the hearings on 18 December 2023 and 23 January 2024 that she lived and worked without any problems in Fuqing City for a year immediately before leaving China to come to Australia even though her half-brother was also living in Fuqing City with his wife and three [children]. In light of the passage of time since the applicant last experienced problems or harm from her half-brother and the fact that she lived in the same city as him for a year and didn’t experience any harm or problems from him, the Tribunal finds that there is no real chance that she will suffer harm from her half-brother or her other siblings if she returned to China. The Tribunal finds that the applicant’s subjective fear has caused her to exaggerate and embellish the risk posed by her siblings when giving evidence to the Tribunal.
The applicant provided no corroborative medical evidence to support her claim to be suffering depression, however the Tribunal is prepared to accept that she may experience some degree of anxiety about her half-brother if she returned to China in the future due to her past experiences with him, however the Tribunal finds that this in and of itself does not amount to systematic and discriminatory conduct for the purposes of s 5J(4)(c).[1] In addition to this, the Tribunal finds that any mental health conditions the applicant may experience upon return to China would not result from the actions of others and so would not fall within the scope of significant harm for the purposes of s 36(2A).[2] The Tribunal makes these findings in light of its earlier finding that there is no real chance or real risk that the applicant will suffer harm from her half-brother or her other siblings if she returned to China.
Underground church attendance
[1] CSV15 v MIBP [2018] FCA 699 at [30]-[31].
[2] CHB16 v MIBP [2019] FCA 1089 at [65]–[68].
The Tribunal found the applicant’s oral evidence given at the hearings on 18 December 2023 and 23 January 2024 about her underground church attendance in China and the problems she claimed to have experienced with Chinese authorities because of it to be generally credible and unembellished.
The Tribunal has considered the certificate from [Church 1] dated 1 January 2024 attesting to the applicant’s membership of the church since 2005 and her participation in church affairs and activities. The Tribunal has concerns about this document, namely that:
i.it pre-dates the resumed Tribunal hearing on 23 January 2024, which was when the Tribunal first raised its concern about the lack of any corroborative evidence of the applicant’s church attendance in China – it would be reasonably expected that any support letter prepared in response to this concern would post-date the resumed hearing date;
ii.it indicates that the applicant has been a member of the church since 2005, which is inconsistent with her evidence given to the Tribunal that she first started attending church meetings in approximately 2013; and
iii.it sets out the name of the church, which differs to the applicant’s evidence given at the first Tribunal hearing on 18 December 2023 that the church she attended did not have a name because it was an underground church.
In spite of these issues, the Tribunal is prepared to accept that the applicant attended some underground church services in China when her personal and professional circumstances allowed, that Chinese authorities raided a number of different underground church meetings she attended but that she was able to elude arrest and detention by running and hiding each time. The Tribunal finds that neither the applicant nor her mother was ever arrested or detained in connection with their religious practice in China. The Tribunal bases these findings on the applicant’s oral evidence given at the Tribunal hearings on 18 December 2023 and 23 January 2024.
The Tribunal does not accept that the applicant’s claim that her half-brother alerted authorities about the underground church meetings that the applicant attended and that this led to them being raided. Similar to her claims about her half-brother potentially being responsible for her father’s death, the Tribunal finds this to be speculative on her part and based merely on her past negative experiences with him.
The applicant identified as a Catholic, however she was unable to demonstrate any knowledge about key Catholic holidays such as Christmas and Easter nor was she able to identify or explain the role of important figures in the global Catholic Church such as the Pope. Despite claiming to read the Bible every day, she was unable to identify any Bible passages that had personal significance to her aside from vaguely referring to a story about Jesus and Satan and the crucifixion of Jesus Christ. When the Tribunal raised its concerns that this may suggest that she is not a committed Catholic or Christian and that it may mean that she would not attend underground church meetings if she returned to China the applicant admitted that her knowledge of Christianity was underdeveloped and also indicated that her memory was affected because of her purported depression, anxiety and side-effects from IVF treatment.
In spite of the various concerns it has about the applicant’s knowledge of Catholicism and her religious commitment, the Tribunal is prepared to accept that the applicant currently engages in basic Christian practice in the form of private prayer but that she does not have any meaningful understanding or appreciation of Catholic doctrine such that she could be considered a committed Catholic. The Tribunal finds that the applicant has not attended any church while living in Australia. While the Tribunal understands and accepts that this is due to a range of personal factors affecting her such as social anxiety and complications arising from IVF treatment, the Tribunal finds that her failure to avail herself of the opportunity to practice Christianity freely and without fear of repercussions while living in Australia reflects an indifferent attitude on her part to how she practices her faith.
Having regard to the above, the Tribunal finds that if the applicant returned to China she would continue to practice her faith in a similar manner to how she presently does; that is through private prayer. If the applicant wished to attend church services, the Tribunal finds that she would attend an official state-sanctioned church. The Tribunal bases these findings on the applicant’s oral evidence given at the resumed Tribunal hearing on 23 January 2024. In light of this, the Tribunal finds that there is no real chance that the applicant will be harmed in for reasons of her religious practice if she returned to China in the reasonably foreseeable future.
The Tribunal does not accept the applicant’s claims that she is of ongoing interest to Chinese authorities for reasons of her attendance at underground church meetings that were raided by Chinese authorities or that Chinese authorities made enquiries with her mother in connection with this. The Tribunal bases this on the applicant’s evidence given at the resumed Tribunal hearing on 23 January 2024 that she was never arrested, detained or had her personal details taken by Chinese police when the church meetings she attended were raided. She gave no explanation as to how or why the Chinese authorities would know to contact the applicant’s mother about the applicant’s attendance at the raided church meetings if Chinese authorities never in fact identified the applicant. In light of this, the Tribunal finds that the applicant will not be of any adverse interest or experience harm by Chinese authorities or any other parties in connection with her past attendance of underground church meetings if she returned to China.
Refugee criterion
The Tribunal finds that there is no real chance that the applicant will be harmed by her siblings or her half-brother if she returned to China in the reasonably foreseeable future. The Tribunal also finds that the manner in which the applicant would practice Christianity if she returned to China in the reasonably foreseeable future would not lead to a real chance of her experiencing harm of any kind from Chinese authorities or any other parties. In addition to this, her past attendance of underground Christian church meetings would not lead to a real chance of any harm by Chinese authorities or any other parties if she returned to China. The Tribunal also finds that while the applicant may experience some anxiety upon return to China, this does not amount to systematic and discriminatory conduct for the purposes of s 5J(4)(c).
For the purposes of s 5J(1)(b) the Tribunal is not satisfied that there is a real chance that the applicant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a). As such, for the purposes of s 5H, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution and finds that she is not a refugee.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal finds that there is no real risk that the applicant will be harmed by her siblings or her half-brother if she returned to China in the reasonably foreseeable future. The Tribunal also finds that the manner in which the applicant would practice Christianity if she returned to China in the reasonably foreseeable future would not lead to a real risk of her experiencing harm of any kind from Chinese authorities or any other parties. In addition to this, her past attendance of underground Christian church meetings would not lead to a real chance of any harm by Chinese authorities or any other parties if she returned to China. The Tribunal also finds that while the applicant may experience some anxiety upon return to China, this does not amount to significant harm for the purposes of s 36(2A) because it would not result from the actions of others.
As such, for the purposes of s 36(2)(aa) the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
R Guemy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 921

14 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies