1901791 (Refugee)

1901791 (Refugee) [2024] AATA 2744 (13 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901791
COUNTRY OF REFERENCE:                   China
MEMBER:Alan McMurran
DATE:13 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2024 at 9:50am

CATCHWORDS
REFUGEE – Protection visa – China – religion – Christian – applicant declined hearing invitation – Tribunal has no current information about the applicant’s claims – Chinese authorities have no interest in the applicant – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65,425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 25 January 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2019 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 the People’s Republic of China (“China”), arrived in Australia on [date] June 2017 and applied for the visa on 19 September 2017. The applicant has an Australian husband and made application for a Partner visa on 3 December 2018.
Delegate’s decision
The delegate refused to grant the visa on the basis that the delegate found that the applicant has a low profile within her church and does not face a real chance of being persecuted for her religion if returned to China.
The delegate also found that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being returned to China.
No hearing
On 12 March 2024 the Tribunal sent an email to the applicant with a link to a pre-hearing information form, which the applicant was asked to complete and return in anticipation of a hearing.
The applicant did not respond.
On 27 March 2024, the Tribunal invited the applicant to a hearing under s 425 of the Act, to be conducted on 19 April 2024 at 10.30am at Clarence St, Sydney as part of a hearing list to be conducted over 3 hours.
On 14 April 2024, the applicant responded by email to the invitation and informed the Tribunal that she would not be attending the hearing. Instead, she consented to the Tribunal making a decision on the papers and without taking further steps to allow her to appear.
The applicant gave no reason for not wishing to appear. At the applicant’s request, the scheduled Tribunal hearing for the review on 19 April 2024 was cancelled.
The applicant is unrepresented.
The Tribunal has verified the email address from which it received the applicant’s reply to the hearing invitation, as the address recorded for her in the Tribunal records.
Section 425(3) of Part 7 of the Act provides that the applicant is not entitled to appear on review in a hearing, if any of the paragraphs in subsection 425(2) apply.
Section 425(2)(b) provides that the applicant may consent to the Tribunal deciding the review without the applicant appearing before it.[1]
[1] Noting that s 425(1) has been complied with where the applicant was invited to appear and responds by consenting to the review without a hearing.
Accordingly, the Tribunal has proceeded without a hearing on the basis of the available information and the paper files from the Department[2], and the Tribunal. That information has been considered below in this review decision.
[2] DOHA file reference [deleted]
Decision on review - outcome
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Issues on a review for the decision-maker
The issues arising from the relevant provisions that are required to be determined by the Tribunal are as follows:
(a)Is the applicant a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, that is:
(i)Is the applicant outside their country of nationality (s 5H(1)?
(ii)Does the applicant have a well-founded fear of persecution (s.5J(1))? and
(iii)Does the ‘real chance’ of persecution relate to all areas of the applicant’s receiving country (s.5J((1)(c))?
and, if not,
(b)Is the applicant a person in respect of whom Australia has protection obligations on complementary protection grounds, that is:
(i)Are there substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm?
and, if so,
(ii)Would it be reasonable for the applicant to relocate to an area of the receiving country where there would not be a real risk that the applicant will suffer significant harm?
or,
(iii)Could the applicant obtain from an appropriate authority in the receiving country, protection such that there would not be a real risk that the applicant will suffer significant harm?
or,
(iv)Is the ‘real risk’ one faced by the population of the receiving country generally, and not faced by the applicant personally?
and if none of the above applies,
(c)Is the applicant a member of the same family unit as a person in respect of whom Australia has protection obligations, as a refugee, or on complementary protection grounds, and does that person hold a protection visa of the same class?
Nationality and Identity
The applicant has provided a copy of her passport to the Department.
On this information, and as was found by the Department, the Tribunal is satisfied that the applicant is a national of the People’s Republic of China (“China”) and has established her identity.
At the time of this decision, the applicant remains in Australia and the Tribunal is satisfied that the applicant is outside her country of nationality.
CRITERIA FOR A PROTECTION VISA
When making its decision, the Tribunal must take account of the Act and Regulations and apply the particular facts relevant to this application accordingly. Relevant provisions from the Migration Act and Regulations are extracted with the decision and explained as follows.
Criteria
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’.
Refugee - nationality
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).
The applicant is a national of China and outside her country of nationality and the refugee criteria for consideration is whether the applicant has a ‘well-founded’ fear of persecution on account of her religious beliefs and practice, and is unable or unwilling to avail herself of the protection of that country.
Persecution – ‘well-founded fear’
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.
‘Real chance’ of serious harm
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]
[3] (Chan’s case) Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 169 CLR 379 (per McHugh J)
The court found in Chan’s case that if there is a real chance an applicant will be persecuted, the applicant’s fear should be characterised as ‘well-founded’.
The decision-maker in considering the application of the ‘real chance’ test, as it is referred to, needs to pay regard to the “reality not the appearance” [4] of a real chance, requiring careful consideration of the factual material available and the individual circumstances and context.
[4] Per Mansfield J in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30]; see also BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621 per Farrell J.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country.
The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[5]
Essential and significant reason
[5] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
Harm must be ‘serious’
Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
For the purposes of s 5J(4) of the Act, s 5J(5) provides that the following are instances of serious harm: (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.
Other requirements and exceptions
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.
Complementary protection’ criterion – necessary and foreseeable consequence
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.
The applicant must then show 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) of the Act (‘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) of the Act, which are extracted in the attachment to this decision.
Tribunal role
The Tribunal’s task is to apply these criteria as summarised above to the relevant facts and circumstances of the applicant’s case, and the applicant’s claims to be a refugee as relied upon for this review and to consider all the available information afresh.
Where there is no updated information about the claims in the period since lodgment in 2017, and no hearing following the applicant’s request, the Tribunal relies upon the same submitted information for those claims as was available to the delegate.
Mandatory considerations
Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body (e.g. the AAT) having functions or powers under the Act, if the directions are about the performance of those functions, or the exercise of those powers.
Sub-paragraph 2A of section 499 requires that a person or body must comply with a direction.
Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act 1958, states that:
Where the Department of Foreign Affairs and Trade has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
Reports take into account relevant and credible open source reports, as well as information obtained on the ground.
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 issue in this case is whether the applicant is a refugee to whom Australia has protection obligations under s 36 of the Act because of her Christian beliefs and fear of returning to China.
If the applicant is not a ‘refugee’, because she does not have a well-founded fear of persecution, the Tribunal must then consider the complementary protection criterion, namely, whether there is a real risk on being returned to China that the applicant will suffer significant harm.
The Tribunal has had access to the Department file[6] and the Tribunal file, the Act and Regulations, Department Policy, and the written claims as set out in the application form alongside mandated DFAT country information. The information from the Department includes the applicant’s visa history and movement record.
[6] [File number deleted] (2018)
The applicant has provided a copy of her passport and relies otherwise on the information contained in the form with the application, and which includes her statement.
No other information from the applicant has been made available.
Background
The applicant presents as a [age] year-old Chinese Christian from Chongqing Municipality (formerly Sichuan Province). The area is home to approximately 31 Million Chinese. The applicant is divorced with a [age] year-old son. Her former husband and her son were in China at the time of the application for the visa (19 September 2017). She speaks, reads and writes only Mandarin. She has no relatives in Australia.
The applicant has set out some background in her application form and a personal statement lodged in 2017. She claims to have been unemployed when she left for Australia. The applicant has not updated her history since arriving in Sydney in 2017.
She received an invitation from the Department to attend an interview on 30 November 2017 at a Department office for personal identification purposes. She did not attend.
Notwithstanding, the Department record confirms that it carried out some checks and accepted the applicant’s passport submitted with the application as valid and sufficient evidence of her identity.
The applicant was invited to attend for an interview on 16 January 2019 to discuss her claims.
The Department record shows the invitation letter was dated 20 December 2018, and sent to the applicant’s recorded email address. The invitation inserted the incorrect interview date as “Wednesday 16 January 2018” when it should have stated “2019”. A Mandarin interpreter was booked for the interview.
The applicant did not respond to the invitation with the incorrect interview date and the Department received no reply or request to defer or ‘correct’ the date, and no further information or contact was provided from the applicant.
The delegate proceeded to a decision on 16 January 2019, after the applicant did not attend the interview, and refused to grant the protection visa.
Applicant’s claims
The Tribunal must consider the available information afresh.
The applicant submits her claims in her typed statement, which is more detailed than her generalised answers to the questions in the application form, summarised as follows :
·She was introduced to the faith by her parents when she was young, and influenced by them, as they had been Christians “from their young ages”.
·From 2007, at age [age], she herself “started to take part in the church” as she had become a “devotional Christian” by then.
·She attended gatherings in “secret” although it was a dangerous practice to do so due to government policy towards Christians. She was careful to avoid “following and monitoring”.
·[In] October 2010, she was found participating in an underground church by police and arrested and detained for 15 days. During that time, she was forced “to study” in a small room with 8 other people.
·Police notified her employer and she lost her job. Her son was [age] at the time and it was hard to provide for him. She continued to worship secretly but was anxious because of monitoring and fear of police, and her life was not free and very difficult.
·A priest helped her to come to Australia in 2017 “after a long time thinking”, when she decided “to go abroad”.
·She is now free to go to church, “join group bible study or be a priest to visit family to publicize bible or to study bible with them” and she wants to remain in Australia and not return to “awful life again and face danger every day.”
In her written application, the applicant claims she cannot return because she cannot get help from the Chinese government. She states that she did relocate, but government policy towards Christians is a “national policy” and anywhere she risks being mistreated.
Country information
The Tribunal has had regard to the available information from the Department of Foreign Affairs and Trade (DFAT) [7] on the issue of religion in China.
[7] DFAT report on PRC 22 December 2021
Christianity is a recognised religion in the country. Under the current presidency, there is a concerted attempt to “Sinicise religion”.[8] This is intended to ensure that religious organisations, including State sanctioned churches practice a ‘correct’ version of religion, involving patriotism and loyalty to the Communist Party.[9]
[8] Report at 3.24
[9] ibid

The report notes that “Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power”. It notes that State action taken may vary from place to place and is “influenced by the actions and motivations of local authorities”.
There are reports that “home congregations” were increasingly tolerated over recent decades, but less so since the crackdown.
Chinese law generally prohibits “proselytizing… and religious education for those under 18”.[10] The report notes 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”. [11]
[10] At 3.26
[11] At 3.27
Overall, DFAT reports that Christianity is still growing in China, notwithstanding repression. Estimates as to the Christian population vary from 38 million to over 70 million Chinese Christians from all denominations.[12]
[12] At 3.28
DFAT notes that Protestant “house churches” may be targeted through landlords and provision of services such as electricity. Smaller congregations are less likely to attract interest, unlike larger congregations which have a greater chance of doing so and are more likely to attract government attention. In practice, “small groups may be able to meet in private for unauthorised religious discussion.” [13]
[13] At 3.33
For Catholics in China, the report notes that State attention is directed primarily at priests and church leadership, where “leaders are more likely than congregants to face government attention”. This however, again may vary from locality to locality where local authorities have sway.[14]
[14] At 3.40
Policing is dealt with in the report and DFAT notes that: “Arbitrary arrest and detention is commonly reported, especially in cases of political sensitivity and to exercise political leverage. This may, in instances, take the form of enforced disappearance, as family and friends may not know that a person has been taken into detention. Safeguard Defenders, a Spanish human rights NGO, alleged in a 2020 report that some detainees were forced to take false names to further obscure their location from friends, family and the public”.[15]
[15] At 4.8
Surveillance is referred to as “Residential Surveillance at a Designated Location (RSDL)” which is “sometimes used to detain activists, human rights lawyers and government critics, as well as people accused of national security or terrorism crimes or serious corruption”.[16]
[16] At 4.9
Exit and entry control at China’s borders is strictly regulated for those leaving and entering the country. DFAT notes that : “National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list.”[17] Importantly, “If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China”.[18]
[17] DFAT report at 5.32
[18] At 5.33
China has developed extensive exit restrictions since the introduction of its first Passport Law in 2006. Generally, a Chinese citizen requires a passport to leave the country and obtaining a passport itself is subject to extensive checking. Those regarded as subversive or liable to criminal charges or under suspicion would not be able to leave, even if they have not been formally warned or charged.[19]
[19] See article: Exit regulation in the People’s Republic of China: Law, policy and practice, Lili Song – Otago University - IOM 19 August 2022 at p5.
A Country of Origin Information Services Section (COISS) report confirms the view as to current circumstances facing Chinese Christian leadership, noting that Catholic Church leaders and members attract state attention when they deal in sensitive matters. [20]
[20] COISS effective 14 April 2023 at p 15.
As to matters of relocation and freedom of movement in the country, the COISS report notes: “Internal migration has been a key feature of Chinese economic and social life for decades. Migration to cities in the wealthy eastern provinces is particularly popular. A third of the population live in a place other than where their residence is registered with a local government. Urbanisation has been a key feature of China’s rapid economic development. There are no legal impediments to relocation, but the hukou system may limit freedom of movement in practice. As Mandarin is spoken throughout the country, DFAT assesses that Han Chinese have little difficulty in resettling in different parts of the country (see Race/Nationality).”
Analysis – country information
The Tribunal has carefully considered the applicant’s evidence and supporting statement, and relevant information from the application and Department records and from DFAT.
Relevant country information shows according to DFAT that there are currently active increased attempts by the State in China, involving both government (e.g. Police services) and local authorities to regulate and control the practice of Christian religions, relevantly in this instance including Protestants, Catholics and Anglicans. The applicant has not identified in this instance which Christian church she adheres to in practice.
The Tribunal accepts that the current situation affects in particular those Christians involved in leadership of religious activity who may be targeted. Different regions and areas within the country may also be subject to differing levels of tolerance by authorities.
Christianity however is still widely practiced throughout China, both in authorised and unauthorised environments, and outcomes for participants, both leadership and members, cannot be guaranteed.
There is a large volume of information generally available from the internet as well as DFAT sources and there is not a great deal of certainty as to actual circumstances on the ground in particular localities. It appears that practicing Christianity in smaller communities may be more likely to attract attention than for those groups practicing outside authorised environments in a larger population context, although this conclusion as to the degree of possible lesser attention in a larger urban environment cannot be guaranteed.
Generally, it would not be possible to exit the country were the person regarded as someone of interest to authorities and subject to surveillance and suspicion of unauthorised activity, including encouraging or leading worshipers in Christian congregations in underground organisations. This is because the person is likely to be identified on an exit control list which would prevent the person’s free departure from Chinese airports. Low-profile Christian adherents are less likely to attract attention, although this cannot be guaranteed.
In this instance, the applicant reports no event or circumstances involving any interaction with authority other than one incident in late 2010. Nothing is reported since then and she does not appear to be a person of interest to any particular Chinese authority. Nor does she identify as such in her claims. She is silent as to her history from 2010 until her departure in 2017. No explanation is offered for her delay in departing after the reported 2010 incident, other than “a long time thinking”.
Findings - Refugee
The Tribunal has no current information about the applicant’s claims and is left only with the answers to the questions in the application.
The only other supporting document is the applicant’s passport and her short typed written statement (undated) attached with the application. There is no information that anyone in China anywhere specifically has any current interest in the applicant for the contended claims and fear of religious persecution for her personally.
The applicant freely left the country on her current passport issued on [date] 2016 without being impeded.
The Tribunal can accept that the applicant may have practiced as a Christian with her parents for some period between [year] and 2007. The applicant does not explain how she became “devotional”, with whom, where and when, and whether she was ever baptised. She does not explain how she practiced or how often, other than in “secret” with others, who are not identified. The process that prompted the applicant to flee, seems to have arisen for her from a single incident in 2010 when she claims to have been arrested. Thereafter from 2010 until departure in 2017, there is no history of any persecution, harm, or religious practice.
There is no evidence that if the applicant returns to China to Chongqing, that she will be targeted for reason of her religious practice and related activity, whatever that may be. Some considerable time has passed, more than 13 years since her claimed arrest, and there is no evidence from family or friends that they have been persecuted in her absence.
Without further evidence, which the applicant has elected not to provide, such as witness statements and current information as to the situation concerning her house and her family, where they are located, including her adult son, the Tribunal can attach little if any weight to the applicant’s claims about her fear of returning. She does not say exactly what she fears other than repression generally, and an inability to practice her religion as she would choose, and in circumstances where she has not described any current practice with which it might be compared.
For example, she gives no detail of any particular church with which she is currently associated in Australia, whether she still congregates with other Christians and in what situations and circumstances. The Tribunal does not find that the applicant is in fact a practicing Christian at all, and finds there is no evidence of any such practice.
The Tribunal would need to be satisfied that there is sufficient objective information giving support to the applicant’s stated fears. Although she may genuinely hold a subjective fear of returning, there is no reliable information or evidence disclosed, such as an arrest warrant or information to show there is any continuing interest by authorities in the applicant and which might lead reasonably to a conclusion that such fears as she may still hold are ‘well-founded’.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Minister (or the Tribunal on review) does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[21].
[21] Section 5AAA of the Act, inserted by item 1 of sch 1 to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) with effect from 14 April 2015
This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.
The applicant has chosen not to support independently her personal circumstances from other information, such as witnesses who might have evidenced the events as they occurred, or from neighbours or from family members as to the current situation with her home and family. There are very few particulars of what has happened to her in China before she departed, other than her generalised statements.
The Tribunal attaches no weight to her statements, which are unsupported, as evidence of a well-founded fear of persecution in the foreseeable future, should the applicant return to China. The Tribunal depends upon the applicant producing evidence and other than her description of one event in 2010, there is no information.
It is for the applicant to determine what evidence she chooses to submit. The Tribunal is not obliged to make a case for her, or to make assumptions as to past events or possible future action by police or authorities in China in relation to her personal circumstances and where there is no current evidence she would be a person of interest to police or other authorities.
It is well-established that the Tribunal is not required to make further inquiries in the absence of information, including evidence that could or ought to have been produced. As noted more recently by Perry J referencing another court opinion, “there was no general duty imposed on the Tribunal to make further inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ))”.[22]
[22] AJX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023]FCA 16 at [22]
Furthermore, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. The Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[23]
[23] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The Full Federal Court has held that findings adverse to an applicant’s claims are likely where the claims are of such a vague and general nature that relevant facts cannot be established.[24]
[24] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [17]

100. Similarly, the Federal Court has held that “It is for the applicant to provide evidence and argument sufficient to enable the decision-maker to establish the relevant facts…to make out the applicant’s case…There is no obligation, or onus that governs the Tribunal’s decision-making such that it may only make findings where it has no doubt , or that it must give the applicant ‘the benefit of the doubt’ when making findings…”[25]
[25] SZNOX v MIAC [2009]FCA 1233, per Barker J at [18]
101. The Full Federal Court has commented also on the effect of an applicant’s failure to appear, as in this case, where: “…an applicant’s failure to participate in a hearing where the information provided lacks sufficiency, leads to the ‘inevitable consequence’ of an adverse outcome on the visa application.” [26]
[26] NAVX v Minister for Immigration, and Multicultural and Indigenous Affairs [2004]FCAFC 287 AT [5]
102. In the present case, the Tribunal finds from the available information that for the reasons already expressed, the applicant’s case “lacks sufficiency” for a finding that the applicant has established on the facts as presented a well-founded fear of persecution based on her Christian religious practice and her described limited experience in China.
103. The applicant has been in Australia since June 2017. It is reasonable to assume that since that time up until this decision that the applicant has had a significant period within which she might have sought advice or obtained supporting information, either from contacts she has made in Australia or from family and connections in China so as to substantiate any ‘well-founded’ fears.
104. She could have explained her current situation in a more detailed personal statement to update and better inform the Tribunal, describe how she supports herself, explained her religious beliefs and current practice, her family’s circumstances, and her subjective fear of police and any basis for that where she was living, and any contact she may have had with family since 2010.
105. The applicant has made no attempt to support her claimed statements which the Tribunal does not accept at face value, and without more information relevant to the applicant in the context of what has been contended.
106. Furthermore, there is no submission with any evidence in support as to why the applicant could not safely relocate to another part of the country should she choose to do so. If her family continues to live in the same area and there is no evidence that they have been threatened or arrested, it is not reasonably foreseeable that the applicant herself is likely to be arrested or detained or harassed.
107. The likelihood is that currently, Chinese authorities have no interest in the applicant whatsoever.
Summary on refugee
108. In addition to the analysis already set out, on the available information, the Tribunal finds it can accept the following:
·The applicant is a citizen of China, which is also her country of origin and the receiving country (for the purposes of s 36(2)(aa) of the Act);
·The applicant came to Australia as evidenced on her Department movement record arriving on a Tourist visa on [date] June 2017; she has not departed since;
·She applied for a protection visa on 19 September 2017 on expiry of her tourist visa; she has no other visa entitlements or applications and is currently on a Bridging visa pending this review;
·At some time when in China, the applicant associated with a congregation of Christians and practiced in a house church in secret, between 2007 and 2010;
·In 2010, she was detained for 15 days and forced to “study”; there is no history of any particular activity in which she was engaged other than as a low-level congregant, in company with others, who are not identified as friends, colleagues, neighbours, or family.
·Between 2010 and 2017 there is no history, other than she claims to have lost employment and to have been fearful of discovery by police when and if she practiced clandestinely as a Christian;
·There is no history of harassment, surveillance or attention from any authority about the applicant in China after October 2010;
·There is no history of any religious activity by the applicant in Australia from 2017 to the present (2024), nor any evidence offered from supporting Australian church members familiar with the applicant and her religious activities.
·There is no evidence of any interest whatsoever from Chinese authorities in the applicant who was allowed to freely depart the country on her own passport, without difficulty.

109. In this instance, in considering the issues and in the search for a reliable ‘objective foundation’ to draw its conclusions, the Tribunal has very little information, other than the applicant’s written statement and answers to questions in the application form. The Tribunal attributes no weight to those statements, which it is being asked to assess and weigh by accepting those statements at face value, without more, and without the opportunity to test them under examination by asking questions of the applicant.
110. Without the benefit of a hearing and opportunity to discuss the applicants’ claims and to ask questions, and to see and hear her responses, it is not possible to form a view about the applicants’ credibility, which is itself an important criterion in assessing the correctness, completeness, accuracy, and truthfulness of the written claims.
111. As stated above, the legislative criteria in s 5J(1)(a) of the Act includes a subjective requirement that an applicant must in fact hold a ‘well-founded’ fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a ‘real chance’ the person would be persecuted.
112. It is not enough merely to assert a claimed subjective fear of serious harm and persecution in the foreseeable future, without an objective factual basis for doing so.

113. In this instance the Tribunal finds that on the available information the applicant does not hold a well-founded fear of persecution based on her religious claims, where the ‘real chance’ test requires the “reality not the appearance” [27] of a real chance, meaning careful consideration of the factual material available and the individual circumstances and context, while keeping in mind likely ‘foreseeable future’ events were the applicant to return to China.
[27] Per Mansfield J in SRBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 79 ALD 723 at [30]; see also BEQ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 621 per Farrell J.
114. The applicant does not speak, read or write English and it is not known who may have assisted her to complete the form and whether the applicant could have verified what has been claimed in the generalised statements with some greater particularity, had she chosen to attend the hearing.
115. The applicant has had several opportunities and several years to clarify and update the information she relies upon to support her claims and to seek professional assistance to help in doing so. She has not taken that opportunity. This might have also included details about how she has practiced as a “devotional ” Christian since coming to Australia, where and when she was doing so.
116. The Tribunal concludes that the applicant has not practiced her Christianity since coming to Australia, as there is no information to this effect.
117. The issue as to possible future serious harm upon return to the country of origin is a forward looking test, and to that extent based upon reliable evidence as to the applicant’s past history. The Tribunal is satisfied on all the available information that the applicant’s fears cannot be established from any accepted past history, that those fears are entirely subjective, and on a foreseeability test are not properly described as “well-founded”.
118. The Tribunal finds on the available information that the applicant is not a person in respect of whom the Minster is satisfied Australia has protection obligations because the applicant is a refugee under s36(2)(a) of the Act.
Complementary protection

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), namely whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removing the applicant to China, there is a real risk she will suffer significant harm.

120. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1).
121. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
122. ‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is defined in s5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person.
123. Degrading treatment or punishment is defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[28]
[28] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]
124. The Tribunal has considered the applicant’s claims for protection, which involve her personal subjective concerns as to how she might be able to practice Christianity in her country of origin, China.
125. In this instance, the laws affecting religion are universal in China, and as noted, and because of the large geographical circumstance and the size of the population, their implementation and interpretation may differ from locale to locale and community to community.
126. The Tribunal has found on the available information that the applicant has not demonstrated that she is a devout practicing Christian, and that she will be drawn to the attention of authorities in China because of any religious activity, which on her part, would be at a very low profile and unlikely to attract adverse attention, although of course that cannot be guaranteed.
127. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[29]
[29] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])
128. It would be entirely speculative on the available information as to whether the applicant would need to relocate on her return to China, but on the facts, the Tribunal is satisfied that it would not be because of any particular apprehension or fear she has expressed because of practicing her religion. There is no evidence that the applicant or her family members would suffer any significant harm because she returned.
129. The Tribunal has considered the guidelines for relocation aligned against the application in this instance but found nothing cumulatively in the context provided by the applicant that might require the Tribunal not to be guided by Policy in consideration of the Tribunal’s decision. Policy points to the likelihood or foreseeability of a real risk of persecution based on the available objective information, and foreseeability of persecution, not only in the applicant’s local area, but anywhere in China.
130. In this case, there is no available objective information that points to the likelihood or foreseeability of a real risk of persecution of the applicant on account of her religious belief anywhere in China. This is because there is no evidence of any persecution history since 2010 involving the applicant, and that any risk, where present, would be very low, based on her recounted history, anywhere in China she may choose to live. DFAT information shows that the applicant could effectively return to live and relocate anywhere in China that she chose, not just with family.
131. The Tribunal finds it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Summary - overall
132. The Tribunal finds:
a)There is no ‘real chance’ that the applicant would be persecuted on return to China for any one of the reasons in s 5J (1)(a) of the Act;
b)That the applicant does not hold a ‘well-founded’ fear of persecution based on the 2017 information and her claims as outlined at that time.
c)If she felt the need to do so, the applicant could relocate anywhere in the country and be safe, and there is no information to demonstrate that the applicant would be found or pursued by Police or by any person on return to the receiving country for reason of any religious belief or practice, such that consequently she would face a real risk of significant harm.

133. Without a reasonable factual basis for doing so, the Tribunal does not find that the applicant is a refugee as claimed, or that she cannot return to live safely in the receiving country.
134. Accordingly, in this Tribunal’s opinion, the claims lack “sufficiency” [30] and in the absence of a hearing which the applicant declined, and with the dearth of information as found above, the application for the visa cannot succeed.
[30] NAVX v Minister for Immigration, and Multicultural and Indigenous Affairs [2004]FCAFC 287 AT [5]
Conclusion
135. 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).

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

138. The Tribunal affirms the decision not to grant the applicant a protection visa.
Alan McMurran
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 2744

13 May 2024

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