1837005 (Refugee)

1837005 (Refugee) [2024] AATA 868 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1837005
COUNTRY OF REFERENCE:                   China
MEMBER:Patricia Tyson
DATE:25 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 25 January 2024 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Local Church – fear of detention – evangelising – church activity in Australia – torture in custody – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, arrived in Australia in June 2018 on a visitor visa. That visa expired in September 2018, but the applicant did not depart Australia. He was intercepted by Australian Border Force officials in November 2018 and taken into immigration detention.
The applicant applied for the protection visa on 23 November 2018. He claimed to fear harm in China on account of his Christian (Local Church) religion. The delegate refused to grant the visa on the basis that the applicant was only a low level adherent of the Local Church, and there was not a real chance he would be persecuted or a real risk he would suffer significant harm.
CLAIMS AND EVIDENCE
With his protection visa application, the applicant provided a statutory declaration dated 23 November 2018, outlining his claims for protection. Those claims can be summarised as follows:
·The applicant was born in [his home] village, [in Town 1], Fuqing city, Fujian province. His mother, father and sister live in Australia. His mother and sister are Australian citizens and his father is an Australian permanent resident. His mother is a devout Christian. The applicant has a wife and [children] who remain in China.
·For around ten years prior to leaving China in June 2018, the applicant lived and worked in Hainan province, first as business staff in a [business 1] and then in a [business 2] company.
·The applicant claims that he cannot return to China due to significant changes of circumstances. He claims that in around 2015 he became a regular customer of a restaurant opened in [Town 2], Chengmai County, Haikou City, Hainan Province by a man named [Mr A], who was also from Fujian. [Mr A] was a Christian of the Local Church and evangelised to the applicant.
·The applicant claims that he had been having an affair with a woman and was eventually saved by Jesus. Although his mother was a devout Christian and would evangelise to him, he had been secluded by Satan and could not receive the Lord for a long time. Guided by [Mr A], he was brought back to God and received the Lord’s spirit into his life. He became a Christian and was baptised [in] February 2016.
·After his baptism the applicant was actively involved in church activities in [Town 2]. For over two years he assisted [Mr A] to evangelise to people around them and actively developed meeting groups of the Local Church. By the time he left China in June 2018 the Local Church had grown from around ten people to 60-70 members, forming three meeting groups.
·The applicant applied for visas to Australia to visit his parents on several occasions but was not successful. In December 2017 he met a man who organised for him to obtain an Australian visa and ultimately depart China through [a named] airport in Shanghai [in] June 2018. [Mr A] was expecting the applicant to bring Local Church teaching material from Australia back to China.
·In Australia the applicant went to Local Church meetings with his mother. A small group meeting was also held in their home each week, including at the time the applicant was located by the Department. Believing he still had a valid visa, the applicant had been planning to remain in Australia until the end of 2018 in order to attend [a Local Church] conference being held at [Location 1] in NSW, and then return to China.
·The applicant claims he had been told by the man who arranged his visa that it was valid for a year and for multiple travel, and did not know the visa had expired until he was located and detained by Department officials [in] November 2018. While in immigration detention, the applicant learnt that the Local Church in [Town 2] had got into big trouble and that [Mr A] and five or six other church advocates had been arrested by the Public Security Bureau (PSB). The applicant was regarded as a major activist of ‘evil cult’ for establishing and developing illegal groups and was being targeted by authorities. He fears he will be arrested, imprisoned and suffer significant harm if he returns to China.
Other evidence before the Department
I have before me written records of interviews conducted by the Department with the applicant on [specified days in] November 2018 in connection with his immigration detention and application for a bridging visa, as well as notes from the time of his interception. In the [earlier] November interview he gave his religion as Christian, and in the [later] interview he claimed to have changed to Christianity and been baptised in February 2018, to have recently found out that some of his fellow Christians had been arrested by the government, and to have been advised not to go back to China.
In support of his protection visa application, on 5 December 2018 the applicant’s migration agent submitted photographs of the applicant’s mother at [a specified] conference of the Local Church at [Location 1] and photographs of his parents and sister in [Country 1] for [another specified] conference of the Local Church. He also submitted what was said to be documentary evidence of the applicant’s registration for the [Location 1] Conference, consisting of a form for the [Location 1] Centre, largely in Chinese script but with some English, with the applicant’s name written in English, and a letter from a church sister dated [November] 2018 stating that she was serving the registration for the [Suburb 1] district of the [conference], and she confirmed the applicant was registered and gave his registration number.
On 6 December 2018 the applicant’s migration agent provided a supporting letter from two of the responsible brothers of the Local Church in Sydney. This was a proforma letter dated [in] December 2018 stating that the applicant had been meeting regularly with the church since June 2018.
The applicant attended a protection visa interview with the Department on 6 December 2018, and I have listen to the recording of that interview. The applicant reiterated and expanded on his written claims. He also added a new claim that he had been a [leadership position] within the local church in China, which had required six months of training. He said he used to spread the gospel on the streets.
Evidence to the Tribunal
The applicant, through his representative, provided additional documentary evidence to the Tribunal on 11 January 2024. He submitted numerous photographs said to show him at a range of Local Church events in Australia. He also submitted eight support letters from other Local Church members. These attest to the applicant’s involvement with the Local Church in Sydney since mid 2018 and are discussed in more detail below.
The applicant appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the hearing, the applicant expanded on his written claims and gave evidence about his current religious beliefs and practice. His evidence at the hearing is set out below, as relevant.
The applicant was represented in relation to the review. His mother and sister attended the hearing. The applicant confirmed that they were there to support him rather than to give evidence.
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 in s.36(2)(a), or on other ‘complementary protection’ grounds under s.36(2)(aa), or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
The Act provides that, relevantly, a person is a refugee if 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. 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. ‘Persecution’ involves serious harm to the person. The Act contains additional requirements and qualifications relating to a ‘well-founded fear of persecution’.
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the complementary protection 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. The Act defines ‘significant harm’ and sets out circumstances in which a person will be taken not to face a real risk of significant harm.
The criteria for a protection visa and related definitions and qualifications are set out in detail in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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, to the extent they are relevant to this decision.
FINDINGS AND REASONS
The issue in this case is whether the applicant’s claims are credible and whether there is a real chance or risk he would be harmed if he were to return to China. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Nationality and third country protection
I have before me a copy of the applicant’s Chinese passport. In his evidence to the Tribunal the applicant demonstrated knowledge and familiarity with China. I accept that China is his country of national and the receiving country for the purpose of this assessment. There is nothing to suggest that the applicant has a right to enter and reside in any other country, and I find that s.36(3) does not apply.
Events in China
The applicant claims that his family members in Australia are involved with the Local Church here and that his mother was a Local Church member in China. He says that independently of his family’s involvement, he was introduced to the Local Church in China around two years prior to coming to Australia and that he had somewhat of a leadership role in the church there. He claims that after his departure from China, he learnt that some of his fellow Local Church members had been arrested and that he had also been identified and targeted.
For context, the ‘Local Church’ (also known as the pejorative ‘Shouters’ or ‘Yellers’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are named for their practice of stamping their feet while shouting as part of their worship. They a diverse and splintered range of groups of Protestant origin, created in the US in 1962 and introduced to China in 1979. They are an offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. Witness Lee created a ‘Recovery Bible’ by annotating the standard Bible.[1]
[1] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report People’s Republic of China’, 22 December 2021; DFAT, ‘Country Information Report People’s Republic of China’, 3 October 2019.
Religion is restricted in China. China officially recognises five religions, including Protestantism, but has introduced a campaign to ‘sinicise’ religion. State-sanctioned religious organisations aim to ensure that a ‘correct’ version of religion is practiced by adherents, emphasising principles such as patriotism, party leadership and loyalty to the Party. The ‘Three-Self Patriotic Movement’ (TSPM) is the official governing body for Protestant churches in China. There are regulations and restrictions aiming to enhance government control over religious leadership. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down and religious leaders have faced charges such as subversion of state power. Most Protestants worship in unofficial ‘house’ churches.[2] The ‘Shouters’ are considered an ‘illegal cult’ by the Chinese government.[3]
[2] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
[3] US Department of State, ‘2022 Report on International Religious Freedom – China’, 15 May 2023.
Apart from a few instances indicated below, the applicant’s evidence has been consistent between his visa application, interview with the delegate and Tribunal hearing. For reasons given further below, I accept on the evidence that the applicant has been regularly involved with the Local Church in Australia since his arrival in 2018.
After reviewing the material prior to the hearing, the applicant’s migration history caused me considerable scepticism about the motivation for his involvement with the Local Church in Sydney and doubt over his claim to have been previously involved with the Local Church in China. The applicant’s mother, father and sister have lived in Australia for some time. On the applicant’s evidence his father is a permanent resident and his mother and sister are Australian citizens, he says because they were recognised as refugees. The material before me indicates that, as put to the applicant at the hearing, prior to his eventual arrival in Australia, the applicant had applied for around eight different visas between 2007 and 2017, all of which were either refused or withdrawn.
After his most recent visitor visa application was refused in January 2018, he obtained a new passport then lodged a further visitor visa application in which his gender was incorrectly indicated as female. This visa was granted in March 2018 and he travelled to Australia, arriving in June 2018. The applicant has consistently claimed that the visa application was lodged by an agent and that he was unaware of its content. The applicant’s visa expired in September 2018 but the applicant did not depart Australia. He was located at his parents’ residence by the Australian Border Force on [a day in] November 2018. On his evidence, he was participating in a Local Church gathering at his parents’ house at the time of his interception. He had been working unlawfully. The applicant was taken into immigration detention. He claims that he was unaware that his visa had expired as the agent had told him that the visa was valid for one year.
A written record of an interview conducted with the applicant on [that day in] November 2018 records him as indicating that there were no reasons that he cannot return to China, that he was willing to depart Australia after Christmas but wanted to first spend some time with his family and be a tourist and have fun. According to a written record of a further interview the next day, he was asked if there were any reasons he could not return to China and he said he wanted to have Christmas in Australia, other than that no. Around a week later, on 23 November, the applicant lodged the protection visa application, claiming to be a member of the Local Church and saying that since being taken into immigration detention he had learnt that his fellow local church members had been detained in China and that he was now a target of the PSB. He said prior to learning of this he had intended to depart Australia after a Local Church conference he was scheduled to attend in late December. He has submitted a copy of his registration for that conference.
The above information was put to the applicant in accordance with s.424AA. As discussed with the applicant, because of this history, I had some scepticism about the applicant’s motivation and his claims to have been involved with the Local Church in China. His history indicates that he has been attempting to come to Australia for many years and suggests a willingness to engage in fraud and breach Australian migration law to achieve that goal. I was concerned that his involvement with the Local Church in Australia and application for a protection visa were simply a further attempt to remain here. When the concerns were raised with the applicant, he reiterated his earlier explanations. I retain some scepticism over the applicant’s claims that he was unaware of the fraud involved in obtaining his visa or that his visa had expired.
I initially also had concerns over the applicant’s claim that despite his mother being a committed member of the Local Church and making many attempts to evangelise to him, he resisted her attempts only to later be converted by somebody else who was not only Christian but coincidentally also from the Local Church. However, the applicant gave some further detail and context to these matters at the hearing. He said that he had in fact attended the Local Church (or in his words, been ‘forced’ to attend) with his mother as a child but did not like it and did not believe in it. He stopped going after she left China. When living in Hainan he met [Mr A], who had been evangelising to him. He was similarly unreceptive, until he found himself in a situation where he was unable to extract himself from an extramarital relationship. He felt he could not overcome the sin and became convinced that he could save himself by baptism. He suggested that any coincidence is attributable to God.
The account presented by the applicant was more nuanced and reflected that he had in fact had some engagement with the Local Church through his mother, which might have made him more susceptible to accepting [Mr A’s] evangelism at a time of difficulty. I also take into account that the applicant’s evidence about his introduction to the Local Church in China has been consistent and he spoke in some detail about his activities there. While I am not without doubt, on balance I am willing to accept that he did become involved with the Local Church in Hainan as he claims.
However, for the reasons below I do not accept the applicant’s claim that after being detained in Australia, he contacted persons from his Local Church group in China only to learn that the group had been identified, members arrested, and that he was a target of the authorities.

First, he gave shifting and contradictory evidence at the hearing about how he learnt of the arrest of [Mr A]. He claimed at the hearing that his last contact with the group had been with [Mr A], while he (the applicant) was in detention, sometime around November to December 2018. He said he did not have any more contact with [Mr A] after that because [Mr A] had told him that the church had been identified as an evil cult. He then said that [Mr A] had been arrested and that he could no longer contact him. His evidence as to how he knew of this shifted in response to my questioning. First he said after a while he could no longer contact [Mr A]. He thought he had been arrested because [Mr A] had already told the applicant government people were chasing him. Then he claimed to have been told of [Mr A’s] arrest by other church members who he had also contacted from the detention centre. I note that the applicant claimed in his visa application that [Mr A] had already been arrested at that time. I find it difficult to believe his timeframe of events of speaking to [Mr A], no longer being able to contact [Mr A] and then receiving confirmation of [Mr A’s] arrest all took place within the period of around a week between the applicant being placed in detention and lodging his visa application. If it were true that all of this occurred as he claims, it would seem an extraordinary coincidence that it happened just at the time that he had been detained and was facing the prospect of removal from Australia.
Second, the applicant’s evidence about contact with church members after that time was unconvincing. When I asked about recent contact, he claimed to no longer be in contact with them because of the pandemic. Despite repeated questioning, he was unable to offer any sort of coherent explanation as to why or how the pandemic had prevented him contacting these people. Finally I note that on the applicant’s evidence there is no indication that authorities have approached his wife or made any investigation into him despite him being identified as a target.
Considering all of these matters, while I accept the applicant was engaged with a Local Church community in China and considered himself a Christian at that time, I do not accept that members of his group were arrested and the applicant identified a person of interest.
Applicant’s religious activity in Australia
I accept on the evidence before me that the applicant’s family have been active members of the Local Church in Sydney for some time. I also accept on the basis of the photographs, support letters and the applicant’s own evidence both to the Department and the Tribunal that the applicant has been regularly involved with the Local Church in Sydney since 2018. The letters the applicant has submitted are written by various church ‘brothers’ and ‘sisters’, some of whom identify that they have been in Australia and involved with the church for many years. The writers variously refer to the applicant as being an active and regular member, engaging in various specified activities including attending a range of meetings and functions, singing and praying, participating in training, evangelising and bringing people into the church. Their descriptions of him include that he is ‘pious’, ‘devoted’ and ‘dedicated’.
The applicant gave evidence at the hearing that he has been attending Local Church meetings since the week of his arrival in Sydney. The applicant is recorded as saying that he was Christian at an interview [in] November 2018. This was around a week prior to lodging his protection visa application, which in my view supports his contention that his involvement with the Local Church in Australia predated his detention and application for protection. In the context of his family being active participants, and I accept that he has been engaged with the church here since his arrival. On his evidence, he attends regular meetings and services five days a week, two of which are hosted by his mother in his own home, in addition to various other events which are held on a fortnightly, monthly or annual basis. These claims are corroborated by the letters of support.
The applicant was able to speak knowledgably and in considerable detail about Local Church beliefs and practices, consistent with information on Local Church websites.[4] He was readily able to elaborate on various parts of the bible in response to my questioning, including relating particular stories to his own life and experiences. He displayed a level of knowledge and engagement consistent with a person who has been a genuine follower of the religion for the length of time he claims.
[4]
The applicant said that for around four years he has been a ‘responsible brother’ of the [Suburb 1] Local Church. He is one of about eight responsible brothers of that chapter. The Local Church does not have formal leadership, but as a responsible brother he attends ‘blending meetings’ with other Local Church chapters, takes turn to lead sermons, gives out the bread and drink and is a role model. He also referred to his role in planning church activities and projects. In response to my query about why none of the letters of support he had submitted referred to his role as a responsible brother he claimed this is not something that would be identified, that they would instead refer to his activities. I note that some of the letters do refer to him participating in blending meetings and training and being an example to others. While the absence of any reference to his claimed specific role causes me some concern, I take into account that a number of the photographs he submitted appear to show him speaking to an audience or performing ceremonial duties. I also consider that the detail in which he was able to speak about the Local Church and Christian beliefs was consistent with a person who has a teaching or leadership role within the church. On balance, I am willing to accept that he holds the position he claims.
The applicant spoke convincingly about his activities ‘spreading the gospel’. He speaks to people, hands out leaflets and drops them in mail boxes. He said some of this is through organised church activity around once a month but mostly spontaneously on his own several days a week. He was able to describe in detail how he undertakes this activity and why he feels committed to doing so. He was frank in admitting that despite the frequency of his activity, only five or six people who he has brought to the church continue to attend. He related people’s lack of interest in religion to Local Church beliefs about the current era of the world. He was able to explain, with reference to biblical teachings, why he feels motivated to continue despite little success and why he would continue to evangelise in China despite the risks. I accept the applicant regularly evangelises by speaking and giving leaflets to strangers in public.
Considering the evidence as a whole, I accept that the applicant is a genuine and committed member of the Local Church in Sydney. Although the church does not have formal leadership, I accept he has particular duties which include giving sermons and leading others. I further accept that he frequently evangelises to others and that this is an important part of his religious practice. I am satisfied that the applicant has engaged in this conduct otherwise than for the purpose of strengthening his claims.
I questioned the applicant about whether he could attend an official church in China. His evidence indicated that he is committed to the Local Church and the Recovery Bible and he identified various aspects of his religious practice that were specific to the Local Church. I accept his claim that he would not attend an official church.
Real chance of persecution in China
Given my findings above, I accept the applicant’s evidence at the hearing that if he were to return to China, he would seek out a Local Church community, attend regular gatherings which would necessarily be in an unregistered house church, and engage in public evangelism. Given his history here in Australia, I find he would likely again take on some sort of informal leadership role.
Turning to the situation in China for a person engaged with the Local Church in this way, DFAT states that there is conflicting information as to whether ‘Shouters’ are still regarded as a xie jiao or ‘illegal cult’, although a more recent US State Department report indicates that they are.[5] According to a Canadian Immigration and Refugee Board report, Chinese criminal law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine state laws or regulations. Being labelled as a ‘cult’ is the most severe form of censure for unofficial religious groups and has lead to targeting and crackdowns. Chinese authorities are said to have intensified efforts to suppress and eradicate certain Christian groups including the Shouters, leading to detention and imprisonment of hundreds of members. Government treatment of the group can vary by location and largely depends on relationships among local political authorities, the local registered church leaders, and leaders of the Local Church. Although many groups are able to operate with only occasional police harassment, while the group remains on the list of ‘cults’, members will remain under threat of arrest and imprisonment.[6]
[5] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021; US Department of State, ‘2022 Report on International Religious Freedom – China’, 15 May 2023.
[6] Research Directorate, Immigration and Refugee Board of Canada, ‘CHN106376.E China: The "Shouters," including origins and founders, core beliefs, activities, and treatment of members by authorities (2017-October 2019)’, 23 October 2019.
DFAT assesses that persons perceived as part of the Shouters, which can include those proselytising for, or being seen as active within a church the authorities perceive as ‘Shouters’, face a high risk of official discrimination, which it defines to include legal or regulatory measures that impede access to state protection, including arbitrary arrest and detention. Identification as a ‘Shouter’, regardless of which church an adherent actually belongs to, may lead to government attention including imprisonment under provisions prohibiting ‘illegal cults’.[7] More generally, DFAT assesses that regulations prohibiting proselytising are generally enforced across China and that an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues.[8]
[7] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
[8] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
The report indicates that treatment can vary by location, and the delegate relied on older information assessing that authorities in Fujian (the applicant’s hometown and where his family remain) were more tolerant of underground churches than authorities in other areas, provided they operated discreetly. However, even that information acknowledged that the situation could vary within Fujian, and that persons engaged in active proselytisation would likely be exposed to harassment, pressure and even violence and criminal sanction, assessing that was more likely for leaders.[9] The more recent information does not indicate that Local Church members in Fujian can freely practise and proselytise without adverse attention.
[9] DFAT, ‘Thematic Report on Fujian Province, People’s Republic of China’, 16 December 2016.
In terms of the nature of treatment inflicted on persons who come to the adverse attention of authorities, according to the US State Department, authorities reportedly used vague or insubstantial charges, sometimes in connection with religious activity, to convict and sentence leaders and members of religious groups to years in prison. NGOs and media reported authorities used violence during arrests and tortured detainees, including by forcing them to maintain stress positions, beating them, and depriving them of food, water, and sleep, and subjected them to forced indoctrination.[10] DFAT also refers to reports of mistreatment and torture in custody.[11]
[10] US Department of State, ‘2022 Report on International Religious Freedom – China’, 15 May 2023.
[11] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
The above information indicates that a person practicing as or identified as a ‘Shouter’/Local Church member faces a risk of harassment, detention, and physical mistreatment, and it would seem that public proselytising and holding a leadership role would only exacerbate this risk. I find that should the applicant return to China, join in Local Church gatherings, again take on a leadership role and continue to evangelise, there is a real chance of his religious activity attracting the attention of Chinese authorities and the applicant being seriously harmed in the reasonably foreseeable future. I find that the harm would be for the essential and significant reason of his religion and would involve systematic and discriminatory conduct.
Although the harm would be inflicted by local Chinese authorities, it is pursuant to the laws and policies of the Chinese government and I find that the real chance of persecution relates to all areas of the country. Effective protection measures are not available. I find there are no reasonable steps he could take to modify his behaviour to avoid the real chance of harm – this would involve requiring him to alter or conceal his true religious beliefs or cease to be engaged in the practice of his faith, which is not permitted under s.5J(3). I am satisfied that the applicant has a well-founded fear of being persecuted and that he is a refugee within the meaning of s.5J(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Patricia Tyson
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 868

25 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies