1912586 (Refugee)

[2024] AATA 4312

1912586 (Refugee) [2024] AATA 4312 (30 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912586

COUNTRY OF REFERENCE:                   China

MEMBER:Mia Bailey

DATE:30 July 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 July 2024 at 8:25am

CATCHWORDS

REFUGEE – protection visa – China – particular social group – victim of family violence – religion – Christian – fear of killing – employment – access to health care – state protection – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417, 423A, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZTAL v Minister for Immigration and Border Protection
SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 17 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 January 2016. The delegate refused to grant the visas on the basis that the first named applicant (applicant) does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and the second named applicant (second applicant), as a member of the same family unit as the applicant, do not satisfy the criteria in s 36(2)(b) or

   
   

   s 36(2)(c) of the Act. The applicants provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.

3. The applicants appeared before the Tribunal on 24 June 2024 and 4 July 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s current partner attended both hearings as a support person.

   CRITERIA FOR A PROTECTION VISA

4. 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. Relevant provisions of the Act are extracted in the attachment to this decision.

5. 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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether any of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act.

7. It is the responsibility of the applicants to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal 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.[1]

   [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

8. For the following reasons, I have concluded that the decision under review should be affirmed. However, considering the circumstances of the second applicant (discussed below), I have referred this case under s 417 of the Act for consideration of Ministerial intervention.

   Background and receiving country

9. The applicant is [an age]-year-old female. The second applicant, [an age]-year-old male, is her son. They are from Heilonjiang province and are of Han Chinese ethnicity.

10. The applicants arrived in Australia [in] August 2015 on a Visitor (subclass 600) visa and departed [in] August 2015. The applicant returned to Australia on a Visitor visa [in] December 2015. She departed Australia on a Bridging visa B (BVB) [in] August 2018 and returned [in] August 2018. 

11. The second applicant last arrived in Australia [in] February 2016 on a Visitor (subclass 600) visa. He was added to the applicant’s protection visa application following his arrival in Australia and did not raise any protection claims in his own right at the primary stage.

12. The applicants provided copies of their Chinese passports as part of their protection visa application and the delegate accepted them to be citizens of China. I find that the applicants are citizens of China, and that China is their receiving country for the purposes of assessing their claims for protection.

    Evidence before the delegate

13. According to information provided as part of the protection visa application, the applicant was born in Keshan, Heilongjiang province. She resided in Harbin, Heilongjiang province between [year] and October 2010. From October 2010 to [December] 2015, she resided in [Country 1]. She returned to China [in] December 2015 before travelling to Australia. The second applicant resided in Harbin from birth until October 2010; in [Country 1] between October 2010 and [December] 2015 and in Harbin between [December] 2015 and [February] 2016. 

14. Regarding the applicant’s family members in China, details are provided of her son (second applicant), mother and [a sibling]. All [of them] reside in Harbin. Her relationship status is recorded as divorced. The relationship commenced in December 1999, she married [in] April 2007 and divorced [in] September 2010 in Harbin. She completed high school in Keshan in [year] and was employed in a [business 1] in Harbin between [year] and 2010. 

15. A 3-page statement was provided outlining the applicant’s protection claims. A summary of relevant information from that statement is below:

    i.She fell in love with her ex-husband in December 1999 and they married [in] April 2007. They were very happy after their wedding. Their son was born on [date].

    ii.Her husband worked as [an occupation 1]. Following the birth of their son, he started to feel stressed and did not help with caring for their son. He only wanted to chat with girls on the internet. He drank and gambled frequently.

    iii.She tried to discuss their problems, but they argued and he severely beat her. She sustained serious injuries including [specified injury]. He also raped her. She tried to report the abuse to the police but they did not help her. They complained that she had reported ‘such small things’ to the police.

    iv.She divorced her husband [in] September 2010, but he continued to harass her. He ‘tried to get [her] information from everywhere’ and threatened her family that if she returned to Harbin he would severely beat her. She left Harbin for [Country 1] in October 2010.  

    v.She went to [Country 1] in October 2010 to accompany her son to study. She was in a relationship with a man in [Country 1] who was physically and mentally abusive toward her. This caused her to leave [Country 1] in December 2015.

    vi.If she returns to China, her ex-husband will keep harassing and threatening her. The authorities cannot protect her.

16. The applicant attended an interview with the delegate on 9 May 2019. The interview was conducted with the assistance of an interpreter in the Mandarin language. Relevant evidence from that interview, as outlined in the delegate’s decision, is summarised below:

    i.After she married in 2007, she lived with her husband in a property in Harbin owned by her husband’s family. Her husband began physically and mentally abusing her when she was pregnant. Following the birth of her son, he beat her severely causing injuries including [specified injury].

    ii.She reported the abuse to the police, including on one occasion filing a report with the local police in Harbin. The police told her that they do not intervene in ‘family affairs’.

    iii.Since departing Harbin for [Country 1] in October 2010, she has returned to China every year. During a return trip with her son in 2013, her ex-husband [stabbed her]. Asked how he knew she had returned to China, she stated that his nephew, who was also living in [Country 1], had returned to China during his school holidays so he guessed that she and their son had also returned.

    iv.Her ex-husband goes to her mother’s house sometimes to ask about her. He has not done so recently. The last time she had any direct contact with her ex-husband was during her return to China in 2013. She most recently returned to China in December 2015, following a trip to Australia in August 2015.

    v.In mid-2018, she required her ex-husband’s permission to renew her son’s passport. Her [sibling] in China organised this. She doesn’t know how her [sibling] contacted her ex-husband. [They] provided fish oil and nutritional products in exchange for his permission.

    vi.She doesn’t know where her ex-husband is currently living. The property in which they previously lived in Harbin has been sold. She has no contact with her ex-husband on social media. She thinks he is aware that she remarried in Australia in 2018. He does not pay any child support for their son. She fears that if she were to return to China, her ex-husband would beat her to death.

    vii.Her hukou (household registration) is registered to her mother’s address in Harbin and she and her son would be able to live with her mother. She fears that her age and lack of qualifications will prevent her from securing employment.

    viii.Her son does not speak Mandarin and has a [medical condition]. He attends a regular school in Australia and has no special needs.

17. Based on the applicant’s evidence and relevant country information, the delegate accepted that the applicant had suffered domestic violence from her ex-husband, which led to their divorce and her departure for [Country 1] in 2010. The delegate also accepted that her ex-husband had harmed her when she returned to China in 2013 for a holiday. The delegate did not accept that she genuinely feared harm from her ex-husband when she returned to China in December 2015 or that circumstances had changed since that time. The delegate also considered that she could likely obtain protection from the authorities and could take ‘precautionary action’ to prevent her ex-husband locating her, noting that if she did not wish to live with her mother, she would have support from her [siblings]. The delegate found that the applicant was of working age and had presented no credible evidence why she would be unable to secure employment in China.  

    Evidence before the Tribunal

    Pre-hearing evidence

18. On 10 December 2019, the applicant wrote to the Tribunal advising that her son has his own protection claims. Shortly after birth, he was injured due to domestic violence by his father. This caused him [an injury 1] and ongoing physical disabilities [specified]. If he were to return to China, he would not be able to access health and education resources to meet his needs. His mental, physical and emotional health would be at risk.

19. On 28 March 2024, the Tribunal wrote to the applicant advising that her case was being prepared to be given to a Tribunal Member. She was asked to complete a ‘Pre-hearing information form’ (Pre-hearing form) and provide any additional evidence of relevance to her application.

20. On 1 April 2024, the applicant submitted the Pre-hearing form together with 8 letters of support (support letters). In the Pre-hearing form, she stated (in summary) the following regarding her claims for protection:

    i.She and her son have lived in Australia since 2016 and are integrated in the community. Her son, currently in [grade], has been attending school in Australia since [grade]. He previously attended school in [Country 1] where he was taught in English. He cannot speak, read or write in English. He would be unable to survive in China if she were to pass away.

    ii.She and her son would face ‘huge barriers’ to register themselves in the government medical system. There is no disability support for her son and he doesn’t ‘register in the residency record system’.

    iii.She may be able to find low paid casual work but could not register herself in the Chinese superannuation/pension system because that requires a continuous 15-year contribution.

    iv.People suffering domestic violence are not protected in China. There are many stories of domestic violence in the media. She and her son fear that their lives will be in danger if they return to China.

21. The support letters are from the applicant’s real estate agent, employer, friends, and community organisations. They primarily attest to the applicants’ good character. Some of the letters refer to their experience of domestic violence in China, the second applicant’s disabilities and the difficulties they would experience if they were to return to China.

22. On 11 June 2024, the applicant provided a completed ‘Response to hearing invitation’ form together with translated statements from the applicant (Review statement) and her ‘cousin sister’ (Ms W) and country information reports detailed below.

    Review statement

23. The following is a summary of relevant information from the Review statement:

    i.She met her ex-husband in 1995 and they started living together. In [year] she fell pregnant. Her husband demanded that she have an abortion. When she refused, he was physically and verbally violent toward her. When he lost money gambling he was violent toward her. She was hospitalised on several occasions, including after he beat her while pregnant and the baby had no fetal movement.

    ii.To protect herself and her baby she moved into shared accommodation near the hospital. Her husband went to her mother’s and relatives’ houses to look for her. He threatened them that if they did not reveal her whereabouts, he would kill her entire family. It was at this point that her mother realised she had been living with ‘horrible domestic violence’. To protect her family, she returned to her husband and continued to endure his abuse.

    iii.In [year], before the birth of their son, her ex-husband reluctantly agreed to marry her. She had begged him to get married because children of unmarried parents cannot apply for household registration.

    iv.In [year] when their son was [age], she learnt that her husband was having an affair. They argued and he punched her in the head and body, causing [specified injuries]. He threw their son to the ground. Following an examination at the hospital she learnt that her [son had developed medical condition 2].’

    v.She called the police following this incident. They came to the house but told her they don’t handle fights between couples. Her husband warned her that if she called the police again, he would beat her to death. She attended the hospital the following day and was issued with a certificate (stated as ‘attached’). They told her to report the matter to the police. She went to the local police station who said they would interrogate her husband but later told her they wanted to give him a chance as it is normal for couples to argue.

    vi.In [year] she took her son to a children’s hospital where he was diagnosed with [medical condition 2] caused by [an injury 1]. He received the same diagnosis from the [Hospital 1]. She told her husband about the diagnosis but he didn’t care and continued to be abusive toward her.

    vii.In [year] she took her son to a hospital in [City 1] which specialises in treatment of [medical condition 2]. He required treatment for 6 months and the cost was very high. She had to borrow money from family and friends and after that ran out, her son was discharged.

    viii.When she returned home, she found that her husband was living with another woman and had locked them out of the house. She had no place to stay. She did not want her mother to feel sad about her, so she borrowed money to stay at a cheap hotel. She initiated a divorce which was finalised in September 2010. Her husband agreed to the divorce on condition that she relinquished all rights to property and child support.

    ix.After the divorce was finalised, she returned to her mother’s house. Her mother was surprised and asked why she had not told her family what was happening. A few months later her ex-husband came to her mother’s house and demanded money. When she refused, he beat her and pushed her mother to the ground.

    x.She was heavily in debt due to her son’s illness. In October 2010 she borrowed money from family and friends to flee to [Country 1] where her [sibling] was living. She found work in a [business 2] and was able to enrol her son in school. While she was in [Country 1], her ex-husband did not stop harassing her mother.

    xi.In September 2015, she ran into her ex-husband’s nephew while he was visiting [Country 1] and her whereabouts became known to her ex-husband. She was told by his nephew that her ex-husband intended to come to [Country 1] to look for her. She quit her job and changed her place of residence.

    xii.In December 2015 she took her son to China to visit her mother. Her ex-husband found out that she had returned and asked her for money. When she refused, he hit her and [stabbed her] with a knife. She was hospitalised. She was afraid for her and her son’s safety. She immediately fled China after being discharged from hospital.           

    xiii.On returning to [Country 1], she lived in constant fear of her ex-husband finding her and her son. [In] December 2015, she travelled alone to Australia and applied for protection.

    xiv.While in Australia she has had no contact with her ex-husband. In 2018, while applying for renewal of her son’s passport at the Chinese Embassy in Australia, she was told that a power of attorney from her ex-husband was required. She relied on her family to locate her ex-husband and obtain this document. This led to her ex-husband learning that her and her son are living in Australia, and he again began to harass her and her family.

    xv.Her son is a disabled person who left China when he was [age] years old. When he was one year old, she applied for a ‘first degree disability’ certificate for him. The local community worker took the disability card, and she never received any support or allowance for her son while in China.

    xvi.All her son’s schooling has been undertaken in English. He is unable to read and write in Chinese and has limited spoken Chinese. He has no understanding of Chinese culture. He would not be able to study, find work or survive in China and would be subject to societal discrimination due to his disability. As she has no money, no job and has not purchased social or medical insurance, she would be unable to financially support her son.

    Statement of Ms W

1. Ms W states that the applicant, who was around [period] pregnant at the time, contacted her asking for help when she suffered domestic violence. The applicant had been beaten and the baby was not moving. She took the applicant to hospital where she remained for 3 days. After being discharged she rented accommodation for the applicant as she was afraid to return home. The applicant did not tell her family about the abuse because her husband had said he ‘wouldn’t let go’ of her family. She stayed in the rented accommodation for about 2 weeks before her husband found her and forced her to return home.   

2. When the applicant’s son was around [age], the applicant was beaten after learning that her husband was having an affair. Her husband threw the baby to the ground. A few months later the baby was diagnosed with [injury 1] causing ‘[a specified] disability’.

   Country information

3. The applicant submitted a copy of the following reports:

   i.DFAT Country information report China, 22 December 2021

   ii.US Department of State, 2023 Country reports on human rights practices: China (extract of section 6: discrimination and societal abuses – women)

   iii.Human Rights Watch, Education of persons with disabilities in China, July 2013

   iv.Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023 (CECC report)

   v.PLOS One, Poverty and youth disability in China: Results from a large, nationwide, population-based survey, 25 April 2019

   vi.CNN, Shocking cases of domestic violence are leading young Chinese to question marriage, 30 June 2023

   vii.Sixth Tone, China’s anti-domestic violence law at the five-year mark, 1 March 2021

4. On the day of the first hearing, the applicant submitted to the Tribunal a USB containing 11 videos. She confirmed to the Tribunal at hearing that none of these videos relate to her personally. I have viewed the videos which show images of domestic violence from social media postings.   

   Oral evidence: first hearing

5. Regarding the preparation of the protection visa application, the applicant stated that she received help from a student she was living with in Sydney. She read and agreed with the information in the forms. Asked about the Review statement, she stated that she wrote the information in Mandarin and sent it to [Country 1] for translation as she could not afford the cost of translation in Australia. She has read and agrees with the content.

6. Regarding her family members, she confirmed that her father passed away when she was about [age] years old. She believes he worked as [an occupation 2]. Her mother continues to reside in Harbin and lives by herself. Her mother previously worked as [an occupation 2] and a farmer. She has [specified siblings]. All are married and reside in Harbin. Asked about the reference in her protection visa application to having only one [sibling], she stated this is incorrect. Ms W, who resides in Australia, is her [cousin].

7. She lived in Keshan until she finished high school and then moved to Harbin. In Harbin she worked in a [business 1] for about 3 years. She then worked for many years in a [business 2] owned by her maternal uncle. She also operated several businesses in Harbin: [specified businesses].

8. Her ex-husband is from Harbin. He worked as [an occupation 1] for a school and later as [an occupation 1] but lost both jobs. They lived together for about 10 years before they married in April 2007. Asked to clarify when she stopped living with him, she stated that after returning from [City 1] in 2008, she continued living in the same building as him, which was owned by her ex-husband’s father, but on a different level to her ex-husband. 

9. I discussed with the applicant that according to the information provided in her protection visa application, she and her husband ‘were very happy after their wedding’ in April 2007 and it was not until after the birth of her son in [specified month] that he started being abusive. However, at her protection visa interview and in her Review statement, she claims that the abuse started while she was pregnant. She responded that the information in her protection visa application is not correct; she thinks the person that assisted her did not correctly record her information.

10. She stated that her ex-husband knew that she was leaving China for [Country 1] in 2010. Asked why she claimed in her Pre-hearing statement to be ‘in hiding’ in [Country 1], she stated that at first she wasn’t in hiding. However, after her ex-husband’s nephew told him where she was working, she left the [business 2] and started working as a cleaner. She had no contact with her ex-husband while in [Country 1] between October 2010 and December 2015.

11. Asked why she returned every year to Harbin while living in [Country 1] if she feared harm from her ex-husband, she stated that she only returned briefly to visit her mother. In 2015 she ran into her ex-husband and he [stabbed her]. She provided a photo to the Tribunal of [wound] with several stitches. This incident is the reason she came to Australia in late December 2015. I discussed with the applicant that this differs from her evidence to the delegate, as summarised in the refusal decision, that her ex-husband stabbed her during a return visit to Harbin in 2013 and this was the last time she had any direct contact with him. She responded that she may have been confused with the dates, but the incident occurred in 2015. 

12. Asked about the requirement to obtain her ex-husband’s consent for the renewal of her son’s passport, she stated that while in China she was able to obtain a passport for her son and renew that passport in 2013 without any consent letter from her ex-husband. However, when she tried to renew her son’s passport in Australia in 2018, the Embassy insisted on a consent letter from her ex-husband. She doesn’t know why.

13. I discussed with the applicant that when she applied to the Department for a BVB in June 2018, she submitted a consent letter from her husband. Asked whether this is the same document that she provided to the Chinese Embassy in 2018 in support of her son’s passport renewal, she stated yes. I raised with the applicant that this letter is dated 18 September 2016 which appears inconsistent with her claims to have arranged contact with her ex-husband in 2018 and to have had no previous contact with him while in Australia. I showed the applicant a copy of the English version of the consent letter dated 18 September 2016 (2016 Consent Letter) together with an untranslated Mandarin version.

14. She appeared confused and responded that she cannot explain why this letter is dated 2016. She agreed that she applied for a BVB to visit her family in [Country 1] in 2018 but cannot recall submitting the 2016 Consent Letter. She claimed that there was another consent letter from 2018 which she provided to the Chinese Embassy and indicated that she has a copy. Asked how she obtained the 2016 Consent Letter while living in Australia, she responded that she doesn’t have much recollection about this letter. I explained that as this information was provided as part of her BVB application rather than her protection visa application, the Tribunal would write to her following the hearing and provide her with an opportunity to comment in writing.  

15. The applicant confirmed that, other than needing to contact her ex-husband to obtain his consent for her son’s passport renewal in 2018, she has had no contact with him while living in Australia. She stated that after her [sibling] contacted him to obtain this letter, he started harassing her for money via WeChat. He asked her for [amount] Chinese Yuan (CNY) but she only sent him [smaller amount] CNY. He made other demands for money, but she told him she didn’t have the money and blocked him on WeChat. Asked whether she has any evidence of these communications, she stated no as they were stored on her old phone. I raised with the applicant that this appears inconsistent with her evidence to the delegate, as outlined in the refusal decision, that the last time she had any direct contact with her ex-husband was in 2013.

16. Asked whether her family in Harbin have had any problems with her ex-husband after they contacted him in 2018, she stated that he goes to her mother’s house and harasses her family for money. I raised with the applicant that this appears inconsistent with her evidence to the delegate, as outlined in the refusal decision, that her ex-husband sometimes goes to her mother’s house to ask about her but has not done so recently. 

17. I discussed with the applicant that she left her son in Harbin with her mother when she travelled to Australia in late December 2015. Asked why she did not bring him with her if she was fearful of her ex-husband, she stated that leaving him there may cause her ex-husband to think that she was also in Harbin. When asked why this would offer her son protection, she responded that her ex-husband did not intend to kill her son immediately.

18. I discussed with the applicant that her evidence to the delegate regarding her son’s health conditions differs to the claims raised with the Tribunal. At her protection visa interview she stated only that her son has problems with [medical condition 1], but attends a regular school and does not have special needs. I explained to the applicant that no evidence had been provided to the Tribunal in support of the claims that her son has [medical condition 2] and invited her to submit any relevant evidence at or prior to the resumed hearing.   

    Section 424A invitation and response

19. On 24 June 2024 the Tribunal wrote to the applicant under s 424A of the Act raising information that may form the reason, or part of the reason, for affirming the decision under review. The information is that in June 2018 she applied to the Department for the grant of a BVB to allow her to travel overseas and return to Australia. On 13 June 2018, in response to a request by the Department for further information, she submitted documentation regarding guardianship arrangements for her son, including the 2016 Consent Letter (a copy of the English and Mandarin versions of the letter was provided).

20. She was advised that this information is relevant to the review because it appears inconsistent with evidence provided in her Review statement that:

    i.She obtained a consent letter or ‘power of attorney’ from her ex-husband in 2018 for the purposes of renewing her son’s passport through the Chinese Embassy in Australia

    ii.She has had no contact with her ex-husband while in Australia; and

    iii.Her ex-husband learnt that she is living in Australia in 2018 as a result of obtaining the consent letter from him. 

21. She was advised that the information may be relied on in assessing the credibility of her claims regarding harm from her ex-husband. She was invited to give comments on or respond to this information in writing by 8 July 2024.

22. On 26 June 2024 she responded, stating that she has no recollection of the 2016 consent letter and was ‘totally shocked’ when it was shown to her at the first hearing. She has another ‘notarial document that was issued in 2018’ (copy provided). As explained at the hearing, she needed to obtain this document to renew her son’s passport in 2018. If she had the 2016 consent letter, there would have been no need for her to obtain another ‘identical one’ in 2018.

23. The supporting documents consist of 5 pages, 3 of which are untranslated. Of the 2 English documents, one consists of a ‘Letter of Consent’ dated [in] September 2018 (2018 Letter of Consent) from her ex-husband stating that he is the father of the second applicant. He and the applicant registered their divorce [in] September 2010 in Harbin due to incompatibility. Their son is under the applicant’s guardianship. He gives his consent for the second applicant to immigrate to Australia with the applicant and the applicant is entitled to make decisions for the second applicant. There is no information regarding who is responsible for the English translation.

24. The second document is described as a ‘translation’ of a notarial certificate dated [in] September 2018 certifying that her ex-husband came to the [named] Notary Public Office and signed and affixed his fingerprint on the 2018 Letter of Consent. There is no information regarding who is responsible for the English translation.

    Documentary evidence regarding second applicant     

25. On 28 June 2024, the applicant responded to the invitation to attend the second hearing and submitted several documents regarding her son’s medical condition and disabilities, as summarised below:

    i.Reports from [Health Agency 1] of visits on 1 April 2021, 28 April 2022 and 16 March 2023 ([Health Agency 1] reports)

    ii.[Health Agency 1] Neuropsychology report dated 9 December 2020 (Neuropsychology report)

    iii.Letter dated 29 November 2019 from the [Health Agency 1] in response to referral of the second applicant by a medical practitioner

    iv.Letter dated 19 June 2020 from [Health Agency 2] to the [Health Agency 1]

    v.[Health Agency 3] ‘Goals and Assessment Report’ dated 6 August 2021

    vi.[Health Agency 1] record of goals and recommendations dated 20 June 2924

    vii.[Education Agency 1] report from Terms 2 and 3, 2019

    viii.[Education Agency 2] report dated May 2019

    ix.Personalised learning plan from the second applicant’s high school

26. The [Health Agency 1] reports refer consistently to a diagnosis of ‘acquired brain injury leading to [medical condition 2]’. The second applicant is reported to have undergone an MRI brain in December 2019 which showed ‘symmetric changes involving [details deleted]’.

27. According to background information in the Neuropsychology report, the second applicant ‘sustained a non-accidental injury at [age] years of age when he was reportedly dropped on his head and shaken by his father. He was also reported to have been exposed to physical assault toward his mother in the third trimester of pregnancy.’ He was noted to have ‘left hemiplegia’ at approximately [age]. It is unclear whether this was acquired pre- or post-natally. The [Health Agency 1] letter dated 29 November 2019 states that the second applicant received therapy in China for about 18 months before the family moved to [Country 1].

28. The [Health Agency 1] reports note that the second applicant underwent lower limb surgery in January 2021 and upper limb orthopaedic surgery in August 2021. He walks with a [specified] gait and wears a ‘solid AFO’ [ankle-foot orthosis].

29. The Neuropsychology report notes that the second applicant underwent a cognitive assessment in 2016 and performed below average regarding his verbal and visual thinking skills and speed of information processing,  although it was noted that his performance was affected by his motor weaknesses. His ‘working memory’ was in the low average range. His speech and language were assessed in 2019 which showed difficulties in his receptive language, core language abilities, semantic development and language memory and ‘severe difficulties in his expressive language’. Articulation errors and drooling were also noted.     

30. The Neuropsychology report notes that, as of [grade] high school, the second applicant was in the Special Education Program with a personalised learning plan. He is verified under the category of ‘Physical Impairment’ and received teacher aide support in the classroom.

    Oral evidence: second hearing

31. Regarding the 2018 Consent Letter submitted in response to the s 424A invitation, the applicant stated that she did not provide this document to the Department in support of her BVB application. She provided this document to the Chinese Embassy in relation to her son’s passport renewal. She indicated that her then husband helped her to lodge the BVB application with the Department and reiterated that she has no knowledge of the 2016 Consent Letter.

32. I discussed with the applicant that, other than the dates, the 2018 Consent Letter is almost identical to the 2016 Consent Letter. I reiterated the concerns raised in the s 424A invitation and noted that I may not accept as credible that she was unaware of the 2016 letter given that she sent it to the Department in June 2018. I raised information from the DFAT report that she provided to the Tribunal which refers to the prevalence and level of sophistication of fraudulent documents in China, with the scale of fraud described as ‘unmatched anywhere in the world’.[2] Asked whether the consent letters are genuine, she stated that she cannot comment on the 2016 letter as she has no recollection of this document, however the 2018 letter is genuine.

    [2] Department of Foreign Affairs and Trade, DFAT Country Report China, 22 December 2021, p 42

33. I discussed with the applicant that her son did not travel to [Country 1] with her in 2018 and was not part of her BVB application, yet she claims to have had no choice but to contact her ex-husband in 2018 so that she could renew his passport. Asked why she needed to renew her son’s passport in 2018, she responded that it had expired; they travelled to the Chinese Embassy in Sydney for the purpose of renewing their passports so it made financial sense to renew both passports.

34. Asked about the contact with her ex-husband in 2018, she stated that she asked her [sibling] in China to contact him. He asked to speak with her personally, so they added each other as contacts on WeChat. She confirmed that they were communicating via WeChat prior to her ex-husband providing the 2018 Consent Letter. I discussed with the applicant that this appears inconsistent with her evidence to the delegate, as outlined in the refusal decision, that the last time she had any direct contact with her ex-husband was in 2013. She responded that she is unsure why she didn’t mention this.

35. Asked about the photo showing an injury and [stitches], she stated that it was taken after she received stitches at the hospital in Harbin. She took the photo and saved a copy. She has no other medical documentation regarding this incident. I discussed with the applicant that her Review statement refers to a hospital certificate, issued following the incident in [month], as ‘attached’ but no attachment was submitted to the Tribunal. In response, she provided an untranslated copy of a 2-page document which she claims to have been issued by the hospital in [that month].

36. Regarding the claims about her son’s lack of Chinese language skills, I raised that several of the medical and education documents submitted to the Tribunal refer to her son being bilingual; noting that he speaks English at school and Mandarin at home. She responded that he can speak basic Mandarin with her but does not have the skills to engage in ‘deep conversations’ in Mandarin.

37. I asked the applicant about the claims in the Pre-hearing form that both she and her son face barriers to register themselves into the government medical system and her son is not registered in the ‘residency record system’. She responded that they both ‘have hukou’ in China but not health care, which she clarified as meaning that they would need to pay ‘out of pocket’ for medical care or purchase private health insurance.

38. Regarding the ‘first degree disability certificate’ referred to in her Review statement, she stated that she took her son to the relevant local authority for assessment, and he was issued with a certificate. She doesn’t have a copy of this document. 

39. I discussed with the applicant country information indicating that China achieves near-universal healthcare coverage through the provision of publicly funded basic medical insurance. Residents who are not employed can voluntarily enrol in the Urban or Rural Resident Basic Medical Insurance scheme which covers primary, specialty, hospital, and mental health care, as well as prescription drugs and traditional Chinese medicine.[3] In 2018 over 95 per cent of the Chinese population were covered by social health insurance schemes and a total of 42.46 billion CNY was spent from medical assistance funds nationwide to subsidise 76.739 million people to participate in basic medical insurance.[4]

    [3] The Commonwealth Fund International Health Policy Centre, Report about the Chinese healthcare system, 5 June 2020

    [4] British Medical Journal Global Health, Towards universal health coverage: lessons from 10 years of healthcare reform in China, 2020

1. She acknowledged that China does have medical services, but she doesn’t believe anything the Chinese government says. She applied for many government services and benefits but never received anything.

2. Regarding her claims that her son would be subject to discrimination because of his disabilities, I discussed with the applicant country information indicating that over the past few decades China has taken a range of steps to improve the living conditions and social status of persons with disabilities. There are various laws aimed at safeguarding and improving the rights of persons with disabilities, including in relation to employment, education, rehabilitation and welfare.[5] I may not accept that he would be subject to discrimination in China amounting to persecution or significant harm. She stated that her son would not find support or protection from the authorities in China and would not be able to get a job.

   [5] International Labour Organisation, Facts on People with Disabilities in China, 6 August 2008

3. Regarding her claims that she would experience financial hardship, including being unable to register herself in an employer-sponsored superannuation scheme, I explained the concepts of persecution, serious harm and significant harm and discussed with the applicant that socio-economic claims do not generally give rise to protection obligations. She responded that she understands but both she and her son have been Christian for ‘many years’.

4. I raised with the applicant that this is the first time she has referred to being Christian. This claim was not raised with the Department, nor previously with the Tribunal. I explained that under s 423A of the Act, I am required to consider whether she has a reasonable explanation for not raising this claim with the Department. If I am satisfied that she does not have a reasonable explanation, I am required to draw an inference unfavourable to the credibility of those claims. She responded that this was the first time she was told that religion was relevant. I noted that she had attended a protection visa interview with the Department and had received the delegate’s refusal decision which includes details of the relevant legal framework. She responded that she only briefly read the refusal decision and saw no reference to religion.

5. Asked when she first became involved with Christianity, she stated that she had no religion in China but became involved with Christianity in [Country 1]. While working as a cleaner, 2 sisters whom she worked for were Christian and spoke with her about Jesus and played her a Christian song. She started to accompany them to church. Asked for the name of the church, she stated that she cannot recall as it was many years ago. Asked about the length of her attendance at church, she stated she went every 2 weeks. She cannot remember how long she attended for but thinks it was quite a while. She also visited the church leader’s house. She was unable to recall the name of the church leader.

6. Asked what attracted her to Christianity, she stated that if she ‘believes in Jesus she will be saved’. When asked which denomination of Christianity she practices, she responded ‘Jesus’. She confirmed that she has not yet been baptised.

7. I asked the applicant about her practise of Christianity in Australia. She stated that she has not been able to find a ‘Mandarin-speaking church’ in Brisbane. While living in Sydney she attended a Mandarin-speaking church in [Suburb 1]. She and her son also attended this church to learn English. She cannot recall how long she attended for, but they went every week. Asked what took place when she attended this church, she referred to the priest talking about the Bible. Asked whether she knows any stories from the Bible, she stated that she can’t remember; her memory is very bad.

8. She confirmed that she has been living in Queensland since 2017 and has not attended church during that time. She explained that she is aware of a Mandarin-speaking church in Brisbane, but it is too far away for her to attend. When asked if there was any other way that she practises Christianity, she referred to a ‘Bible brochure’ but stated that she has not recently read the Bible because her ‘mood is not good.’ She confirmed that her son has not practised Christianity since they moved to Queensland.

9. I raised with the applicant that, while I have not made my mind up, I may have concerns about the credibility of her new claims regarding Christianity, due to the late disclosure and the lack of detail in her oral evidence.

10. I also explained that I may have concerns as to whether there was a real chance or risk of harm from her ex-husband if she were to return to Harbin. She responded that if he knew she had returned, he would definitely harm her. When asked how he would know she had returned, she stated that he lives close to her mother’s house and sometimes goes there and bothers her mother. Asked to clarify where her ex-husband is currently living, she stated that he lives in Harbin but she doesn’t know which part of the city he lives in.

11. Asked whether there was anything further she wished to tell me about her claims, she stated that they have been in Australia for a long time and China is now a strange country to her and her son. They wish to be able to remain in Australia which is now their home.   

    Findings and assessment

12. In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which involves an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[6] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[7] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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.[8]

    [6] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

    [7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [8] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

13. I have had regard to all the available evidence, as outlined above. While I acknowledge the positive character statements and strength of the applicants’ integration into Australian society in the support letters, this is not relevant to my assessment of whether they engage protection obligations with respect to China.

    Harm from ex-husband

14. While I have concerns about aspects of the applicant’s claims regarding her ex-husband, I accept as credible that she experienced domestic violence during the relationship. I have had regard to the overall consistency of this claim and to country information below which generally supports the prevalence of domestic violence in China and the inadequacy of state protection. 

15. According to the 2021 DFAT report, domestic violence is common but often underreported because of traditional values of family harmony and a view that family matters are private matters. Spousal rape is not criminalised. Mediation (rather than criminal charges against a violent partner) is an option that is commonly used in domestic violence cases. While traditionally a hidden crime, recent social media and popular music and culture have been used to draw attention to domestic violence.[9] A September 2022 Reuters article notes that a domestic violence hotline app using WeChat as a platform reportedly received 13,000 calls in August 2022 alone.[10]

    [9] Department of Foreign Affairs and Trade, DFAT Country Report China, 22 December 2021, p 28 - 29

    [10] Reuters, Albee Zhang and Ryan Woo, Thousands Call New Chinese Domestic Violence Helpline App, 1 September 2022

16. While the Domestic Violence Law introduced in 2016 has introduced greater protections for women facing domestic violence, the rollout of protections including legal assistance, shelters and protection orders has been uneven across different provinces; some provinces have enacted their own protections (which are subordinate to national legislation). Chinese police claim thousands of incidents have been investigated and thousands of women have been protected under the law. The Asia Foundation reviewed the laws in 2020 and found that some judges and police officers were not well trained in the new law. DFAT has seen several reports that say police often ignore complainants. The traditional idea of marriage being the ‘bedrock’ of society means police and courts may not take complaints of violence seriously.[11]

    [11] Department of Foreign Affairs and Trade, DFAT Country Report China, 22 December 2021, p 29

17. At her protection visa interview and before the Tribunal the applicant claimed that the abuse began after she fell pregnant in [year]. As discussed with the applicant at the first hearing, this is inconsistent with the information provided in her protection visa application which states that the abuse commenced following the birth of her son in [year]. I accept that the applicant received assistance in completing this statement and her English language ability was limited. As such I have not placed any weight on this inconsistency. I accept that the abuse from her ex-husband began while she was pregnant.

18. For the same reasons I have not placed any weight on the inconsistent information in the protection visa application regarding her family composition. I accept that the applicant has [specified siblings] and her mother residing in Harbin.

19. I accept that she experienced physical abuse from her ex-husband while pregnant which affected the fetal movement of the second applicant. I also accept that in [year] when the second applicant was around [age], her ex-husband was physically abusive toward both the applicant and second applicant. The applicant has presented a copy of an untranslated document claimed to be a hospital certificate issued following this incident. Given that the document is untranslated, I have given it limited weight. However, based on the available evidence, I accept that following the incident in [specified month] the applicant suffered injuries, including a [specified injury], and attended hospital for treatment. Considering the country information referenced above, I accept as credible that the applicant reported this incident to the police in Harbin but they refused to pursue the matter.

20. I find the [Health Agency 1] reports and Neuropsychology report to be consistent with the applicant’s claim that her son suffered an acquired brain injury as a baby from a non-accidental injury. While I acknowledge that some details in the reports appear to be based on the applicant’s assertions, the MRI brain undertaken in Australia is consistent with these claims.    

21. However, I have significant concerns with the credibility of the following aspects of the applicant’s claims. As detailed below, there are various inconsistencies, omissions, and implausible aspects in her account. I acknowledge that not all such issues are significant and do not necessarily lead to an adverse credibility finding. However, having regard to the overall consistency and coherence of her account and the nature and extent of these concerns, I am satisfied that in totality they significantly undermine the credibility of her claims.

    Events between August 2007 and September 2010

22. I accept that the applicant and her ex-husband divorced in September 2010. There are significant inconsistencies in the applicant’s evidence of events between the incident in [year] and the divorce in September 2010. According to her Review statement she took her son to [City 1] for medical treatment in [specified month] and they remained there for a period of up to 6 months. When she returned to Harbin, her ex-husband had locked her out of the house. She stayed at a cheap hotel until the divorce was finalised in September 2010 as she did not want to tell her mother about her situation. According to her oral evidence to the Tribunal, after returning from [City 1] in 2008 she continued living in the same building (owned by her father-in-law) as her husband but on a different level.

23. The applicant’s passport pages, provided to the Department as part of her protection visa application, include immigration stamps for [Country 1] [in] September 2008, [October] 2008, [April] 2010 and [in] May 2010. This generally accords with her travel history details in the protection visa application which indicate that she travelled to [Country 1] between [September] 2008 and [October] ‘2010’ and [April] 2010 and [in] May 2010. I consider the reference to [a date in] October ‘2010’ as opposed to ‘2008’ to be a typographical error.

24. I accept that the applicant sought treatment for her son’s health conditions while in China. This is supported by the [Health Agency 1] documentation and Neuropsychological report. As such, I accept that she stayed in [City 1] for a period of time between December 2017 and 2018. Given the above inconsistencies, I have significant concerns about the credibility of the applicant’s claimed movements in the period between returning to Harbin from [City 1] in early 2008 and her divorce in September 2010. I do not accept as credible that, if she was locked out of the home she shared with her ex-husband, she would pay to stay at a hotel for several years in circumstances where her mother and [siblings] lived in the same city and she claims to have been in significant debt.

25. I have considered her explanation that she did not tell her mother about her situation as she did not want to make her sad. However, in her Review statement she claims that her mother became aware of the domestic violence while she was pregnant. I note that this is inconsistent with the evidence in Ms W’s statement which indicates that the applicant did not tell her family about the domestic violence while pregnant because her husband had made threats against her family if she did. I have given greater weight to the applicant’s own evidence on this point.     

26. I also have concerns about her claim that, after being locked out of the home she shared with her husband, she resided in the same building but on a different level in circumstances where she was fearful of her ex-husband and could have stayed with her mother. The travel to [Country 1] appears inconsistent with her claims to have been heavily in debt during this period and needing to borrow money from family and friends.

    Residence in [Country 1]: October 2010 – December 2015

27. The applicant claims that she fled to [Country 1] to escape her ex-husband. However, she returned to Harbin every year during this period to visit her family. I acknowledge that she would wish to see her family and have had regard to her response at the Tribunal hearing that she only returned for short periods of time. However, I have concerns that if her ex-husband was continuing to pursue her, including by visiting her mother’s house on a regular basis asking about her, she would choose to regularly return to Harbin to stay with her mother during this period.

28. The applicant claims that during one such visit to Harbin, her ex-husband [stabbed her] with a knife. Her evidence to the delegate was that this incident occurred in 2013 and this was the last time she had any direct contact with her ex-husband. Her evidence to the Tribunal was that this incident occurred during a visit to Harbin in December 2015. I have had regard to the applicant’s response to the Tribunal that she may have been confused about the dates when providing her evidence to the delegate. I acknowledge that there has been a significant lapse of time and errors can reasonably be made with respect to dates and timeframes. However, I am not satisfied that this adequately explains the inconsistencies. Before the delegate, she stated that her ex-husband came to know about her return to Harbin in 2013 because it coincided with the return of his nephew during the [Country 1] school holiday period. She referred to the return trip to China in December 2015 but confirmed that the last time she had any contact with her ex-husband was during her visit in 2013.

29. She also raised with the Tribunal that her ex-husband’s nephew had seen her at her workplace in [Country 1] in September 2015, causing her whereabouts to become known to her ex-husband. She claims that her ex-husband intended to come to [Country 1] to find her and this caused her to leave her job and change her residence in [Country 1]. I note that there was no mention of this claim before the Department. If this was the case, I have significant concerns that the applicant would choose to return to Harbin with her son in December 2015.

30. I also have concerns that if the applicant had been stabbed by her ex-husband in December 2015 and decided to leave China and seek safety in Australia as claimed, she would leave her son in Harbin until mid-February 2016. In her Review statement she stated that on returning to [Country 1] in December 2015 following this incident she lived in constant fear of her ex-husband tracking her down and harming her and her son. However, the evidence indicates that her son remained in China during this period. In either case, she expressed a fear of her ex-husband harming her son. I do not find her response to the Tribunal, that leaving her son in Harbin would cause her ex-husband to think she also remained there or that he did not intend to immediately kill her son, to reasonably explain these inconsistencies.

31. I have had regard to the photo submitted to the Tribunal depicting [a specified] wound with stitches. The photo shows only a person’s [body part] and does not depict the applicant. While I accept that this photo may relate to the applicant, there is nothing to indicate that the injury was sustained from her ex-husband as claimed. I have given this document no weight.      

    Contact with ex-husband while in Australia

32. According to the applicant’s evidence to the delegate, she had no direct contact with her ex-husband while in Australia, including any contact via social media. In 2018, her [sibling] in China contacted her ex-husband to obtain his permission for the renewal of her son’s passport. [They] provided some nutritional products in exchange for his permission.

33. This differs significantly from her evidence to the Tribunal which is that after her [sibling] contacted her ex-husband in 2018, he asked to speak with her personally and this led to direct communications via WeChat. In response to his requests for money, she sent him [smaller amount] CNY. Due to his ongoing demands for money via WeChat she blocked him.

34. The applicant was unable to provide any explanation to the Tribunal for these inconsistencies. Given the significance of any contact with her ex-husband while in Australia, I do not accept as plausible that she would have forgotten to mention this to the Department, particularly as the delegate specifically asked about any social media contact (as reflected in the refusal decision).

35. There are also inconsistencies with respect to ongoing contact by her ex-husband with her family in China. At the protection visa interview in May 2019, she stated that her ex-husband sometimes went to her mother’s house asking about her but had not done so recently. Before the Tribunal, she claimed that following the contact with her ex-husband in 2018, he has been going to her mother’s house and harassing her family for money.

36. I have significant concerns about the 2016 and 2018 Consent Letters. The 2018 Consent Letter is almost identical in content to the 2016 letter, as acknowledged by the applicant in her s 424A response. There is no indication of who translated the English versions of the letters or the accompanying notarial certificates. While I have not come to any view regarding the authenticity of these documents, I find them to significantly undermine the credibility of her claims regarding contact with her ex-husband.

1. While the applicant claims that she has no recollection of the 2016 letter, this document was submitted by her to the Department in June 2018 in support of her BVB application. I accept that she received some assistance from her Australian husband at the time with lodging the BVB application. However, I am not satisfied that this explains how the 2016 letter came to be obtained without the applicant’s knowledge. I find this document to be significantly inconsistent with her claims that she had no contact with her ex-husband while in Australia until 2018.

   Factual findings

100.   Considering all the above, I do not accept any of the following claims as credible:

i.Her ex-husband continued to pursue her or seek to harm her following their separation in around 2008.

ii.She left China for [Country 1] in October 2010 to escape harm from her ex-husband.

iii.Her ex-husband went to her mother’s house following her departure for [Country 1] asking about her or harassing her mother.

iv.Her ex-husband stabbed her or otherwise harmed her during any of her return visits to China, including in 2013 or 2015.

v.Her ex-husband has harassed her for money via WeChat while in Australia or harassed her family in China.

Protection obligations assessment

101.   Considering the applicants’ previous residence and family circumstances, I find their ‘home area’ or place of likely return in China to be Harbin.

102.   Considering my findings above, I find there to be no real chance that the applicant’s ex-husband would harm the applicant or second applicant in the reasonably foreseeable future if they were to return to Harbin. I have found there to be no harm or adverse interest from her ex-husband since their separation in around 2008 and there is nothing to suggest that this would change if they were to return to Harbin. I therefore find that the applicants do not have a well-founded fear of persecution for this reason.

103.   Given the above finding, I have considered the complementary protection criterion in
s 36(2)(aa) of the Act. The ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[12] For the same reasons outlined above, I find there to be no real risk of the applicants suffering significant harm from the applicant’s ex-husband as a necessary and foreseeable consequence of their return to Harbin.

[12] MIAC v SZQRB (2013) 210 FCR 505

Christianity claims

104.   The applicant raised a new claim at her second Tribunal hearing that she and her son are Christians and have been engaged with Christianity since they resided in [Country 1]. As discussed with her at the second hearing, as this was the first time this claim had been raised, I will be considering whether she has provided a reasonable explanation for the late disclosure. I have considered her explanation for not raising this with the Department, namely that she was unaware until the second Tribunal hearing that religion was a basis for claiming protection.

105.   The protection visa application form completed by the applicant notes that her claims for protection will be assessed against relevant Australian law, with a link to guidance material on the Department’s website about Australia’s protection obligations including the definition of a refugee. The form also notes that it is important to raise all relevant claims at the time of lodgement as a decision may be made on the basis of the information in the written application. The applicant subsequently attended an interview with the delegate to provide further information regarding her claims for protection. I do not accept as plausible that the applicant was unaware that religion was a relevant reason for the purposes of a protection visa application.

106.   While the applicant claims that she had no involvement in Christianity in China, I consider that she would be aware that some Christians experience problems with the Chinese authorities.[13] If she had genuinely developed an interest in Christianity following her departure from China, I consider that she would have raised this with the Department.

[13] Department of Foreign Affairs and Trade, DFAT Country Report China, 22 December 2021, pp 16 - 18

107.   Considering the above, I am satisfied that the applicant does not have a reasonable explanation why the new claims regarding Christianity were not raised with the Department. In accordance with s 423A of the Act, I have drawn an inference unfavourable to the credibility of those claims.

108.   I have also considered the following factors in finding these claims to not be credible:

i.The applicant claims that she was unaware until the second Tribunal hearing that religion was a basis for claiming protection. However, she received a copy of the delegate’s refusal decision which includes the refugee definition. She stated to the Tribunal that she only briefly read the decision. However, I note that she provided substantial additional information to the Tribunal in support of her and her son’s protection claims, including information relevant to concerns raised in the refusal decision.

ii.The applicant’s evidence to the Tribunal regarding her and her son’s involvement with Christianity was vague and lacking in detail. She claims to have developed an interest in Christianity while in [Country 1] between 2010 and 2015 yet was unable to provide any significant details of her practice as a Christian, including which denomination of Christianity she practises, what the faith means to her personally, and how she has continued the practise of her faith since that time. She was unable to demonstrate a knowledge of Christianity which is commensurate with her claim to have been engaged with Christianity since prior to 2015.

iii.She stated that neither she, nor the second applicant, have attended church or otherwise engaged in the practise of Christianity since moving to Queensland in 2017. I have considered her response that she has been unable to locate a Mandarin-speaking church in Brisbane within reasonable proximity. However, I do not accept that this would preclude the applicants from any involvement in the practise of the Christian faith since 2017.  

109.   Considering the above, I do not accept as credible that the applicants became involved with Christianity in [Country 1] or have practised Christianity while in Australia. I accept that they attended a church in Sydney for the purposes of learning English. However, I do not accept that their attendance at this church was for the purposes of practising Christianity. As such, I find there is not a real chance of harm to the applicants for reasons of Christianity if they were to return to China. As such, I find they do not have a well-founded fear of persecution for this reason. For the same reasons, I find there to be no real risk of significant harm as a consequence of their return to China due to Christianity.  

Second applicant’s claims

110.   Considering the documentary evidence submitted in relation to the second applicant, I accept that he has an acquired brain injury which has led to [medical condition 2]. I accept that he has [specified] difficulties, receives specialist education supports and continues to access a range of rehabilitation and medical services in Australia.

111.   The applicant claims that her son will experience societal discrimination and will not have access to health, education and disability support services in China. She also claims that her son would experience difficulties in China due to his limited Mandarin language skills.  

112.   I have had regard to the country information submitted by the applicants, together with additional sources as outlined below. According to a 2008 International Labour Organization report:

Over the past two decades, a series of positive legislative and administrative action has been developed for the purpose of improving the living conditions and social status of people with disabilities in the country. The Constitution (enacted in 1982 and amended in 1988, 1993, 1999 and 2004) provides a general principle on protection of people with disabilities. The Law on the Protection of Disabled Persons (enacted in 1991 and amended in 2008) is of significant importance to safeguard the rights of people with disabilities. It addresses issues of rehabilitation, education, employment, cultural life, welfare, access, and legal liability, etc. The amendment added details about stable financial support, better medical care and rehabilitation for the disabled, along with favorable jobs and tax policies. The Employment Regulation and the Education Regulation for people with disabilities were adopted in 2007 and in 1994 respectively to promote equality, participation and sharing, as well as to prohibit discrimination.

In addition, more than 50 national laws contain specific provisions concerning people with disabilities, including the new Law on Employment Promotion. China is also advocating and supporting international standards to protect and promote the rights of people with disabilities in a comprehensive manner. The Chinese Government has ratified the ILO Convention No. 159 on Vocational Training and Employment (Disabled Persons) in 1988, and the UN Convention on the Rights of People with Disabilities (CRPD) in 2008, to enable people with disabilities to secure, retain and advance in suitable employment and to further integration or reintegration into society.[14]    

[14] International Labour Organisation, Facts on People with Disabilities in China, 6 August 2008

113.   However, I acknowledge that the same report indicates that people with disabilities remain a vulnerable group and many still encounter specific difficulties, including bias and discrimination in society and limitations in accessing employment, education, vocation training, and social security.[15]

[15] International Labour Organisation, Facts on People with Disabilities in China, 6 August 2008

1. According to a 2024 report, there are 85 million people with disabilities in China, or 6.5 per cent of the population. China has enacted more than 60 laws and regulations aimed at safeguarding the rights of individuals with disabilities, encompassing those with visual, auditory, linguistic, physical, intellectual, psychological, and multiple disabilities. Over the past 30 years, it has made substantial improvements in the living conditions and social status of people with disabilities due to rapid economic growth, administrative and legislative actions, and the efforts of NGOs that champion the disability community. However, despite this progress, people with disabilities in China still face ‘enormous social and economic challenges and are often perceived as sources of inconvenience and a burden on families and society’. While organisations like the China Disabled Persons’ Federation aim to support the rights and interests of disabled individuals through assistance obtaining welfare subsidies and other services, only the most severely disabled individuals qualify for government financial aid. At the same time, over 20 percent of people with disabilities between the ages of 15 to 29 grapple with literacy, which significantly undermines their employability.[16]

   [16] Stanford Social Innovation Review, Fan Li and Sally Ren, Taking steps toward disability inclusion in China, 5 March 2024

115.   The CECC report, which was submitted by the applicant to the Tribunal, examines China’s compliance with the CRPD. It finds that the government’s disability policies are focused on poverty alleviation and social welfare assistance. While the government has taken steps to assist persons with disabilities, the various safety nets are insufficient in terms of amount and access. This may be attributed to institutional and political factors. Additionally, social control policies such as the household registration system and the lack of effective counter-human trafficking measures render certain subsets of the disabled population (rural residents and women with psychosocial disabilities) particularly vulnerable.[17]

[17] Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023

1. According to the CECC report, persons with disabilities in China face multidimensional obstacles to accessing healthcare, making them vulnerable to other health conditions, such as chronic illnesses. Rural residents are confronted with an additional layer of difficulty, as they have a significantly higher rate of poverty and have access to fewer healthcare resources and less robust infrastructures, as compared with urban residents. These gaps are exacerbated by the mandatory household registration (hukou) system, which designates a place of registration as either urban or rural and ties access to resources (such as medical care, health insurance, and social welfare) to a person’s place of registration.[18]

   [18] Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023

117.   Social welfare assistance for persons with disabilities is contingent on obtaining ‘certification of disability’ which entitles the holder to various discounts and accommodation at educational and entertainment venues, healthcare facilities, and services such as transportation. The disability certificate covers 7 categories of disability (visual, hearing, speech, physical, intellectual, mental, and multiple disabilities) with each divided into four levels of severity (mild, moderate, severe, and most severe).[19]

[19] Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023

118.   The severity of a person’s disability is stated in their ‘Disability Identity Certificate’ issued by the China Disabled Persons’ Federation. The severity of disability is determined by the nationally accepted medical definition of disability on the basis of the medical diagnosis by a local doctor designated for disability assessment in hospitals. Six disability categories are classified according to the descriptions listed in the Law on Protection of Persons with Disabilities. ‘Degree-one disability’ is the most severe disability.[20] 

[20] International Journal of Environmental Research and Public Health, How disability income benefits affect employment for persons with disabilities in China: An impairment-based work disability assessment perspective, March 2022; 19(6): 3428

119.   Persons assessed as having a ‘degree-one disability’ are eligible for the minimum living standard guarantee program (dibao), which is a cash transfer program. While dibao offers a degree of stability, recipients live on amounts far lower than the median income level. According to the CECC report, the dibao payment may be insufficient for subsistence as it is capped at 17 percent of the median disposable income for urban residents and 32 percent for rural residents.[21] Persons assessed as having a ‘degree-one disability’ are also entitled to a cash allowance for nursing costs (in addition to dibao) and for care received at home or in an institution (tekun) (in the alternative to dibao).[22]

[21] Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023

[22] Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023

120.   In addition to giving cash allowances, the government has instituted programs that encourage independent living. These programs include requiring and incentivizing employers to train and hire persons with disabilities, and administrative and tax benefits for self-employment and entrepreneurship. Unlike cash allowances, these programs do not appear to be limited to persons with severe disability.[23]

[23] Congressional-Executive Commission on China, Ongoing challenges faced by persons with disabilities in the People’s Republic of China, December 2023

121.   Considering the applicant’s evidence that her son was issued with a ‘first degree’ disability certificate in China, I accept that he has been assessed as having the most severe level of disability. The applicant claims that he did not receive any services or assistance in China despite being issued with this certificate. However, considering the country information I do not accept that to be credible. If he were to return, I find that he would be issued with a degree-one disability certificate, entitling him to access various disability-based public resources as described above.  

122.   I accept that there are limitations with disability services and supports in China. However, considering the above country information, I am not satisfied that this amounts to persecution by the State as outlined in s 5J(4) of the Act. I accept that persons with a disability in China may satisfy the definition of a particular social group in s 5L of the Act. However, I am not satisfied that the government is involved in systematic and discriminatory conduct for the essential and significant reason of a person’s membership of this group. The evidence indicates that the government has taken significant steps to provide welfare assistance and supports for persons with disabilities and any limitations are due to structural, institutional, political and resourcing reasons.   

123.   I accept that there is a real chance that the second applicant would experience a degree of societal discrimination and bias as a person with a disability, such as being subject to negative comments and difficulties in securing employment. However, I am not satisfied that this is of a nature that amounts to serious harm for the purposes of s 5J(4)(b). I do not find this treatment to amount to any of the types of serious harm in s 5J(5) of the Act, including significant economic hardship, denial of access to basic services or denial of the capacity to earn a livelihood of any kind, each of which require a threat to a person’s capacity to subsist or survive. I have found above that the second applicant would be entitled to government welfare assistance and supports as the holder of a degree one disability certificate.

124.   I accept that s 5J(5) is not an exhaustive list of the types of harm that may constitute serious harm, and that serious harm can include the denial of fundamental human rights and serious mental harm. Examples of serious mental harm involve the conduct of mock executions, or threats to the life of people very closely associated with the person seeking protection.[24] I accept that societal discrimination and bias of the nature described above would cause some degree of mental distress for the second applicant. However, I am not satisfied that this amounts to the level of serious mental harm for the purpose of s 5J(4)(b).   

[24] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25]

125.   Further, based on the country information discussed above, I am not satisfied that the State encourages, condones or officially tolerates persecutory acts against persons with disabilities. I find that the second applicant does not have a well-founded fear of persecution for reasons of his disabilities if he were to return to China.

126.   I have therefore considered the complementary protection criterion in s 36(2)(aa), which requires there to be substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant’s removal to China, there is a real risk that he will suffer significant harm. Significant harm is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

127.   Regarding any limitations on government welfare services or supports, I find this to not amount to any of the types of significant harm defined in s 36(2A). The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. Based on the above country information, I find that the government does not hold an intention to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable on persons with disabilities.

128.   For the same reasons as above, I accept that there is a real risk that the second applicant will experience a degree of societal discrimination and bias as a person with a disability.  However, I find this to not amount to any of the types of significant harm defined in s 36(2A). As above, while I accept that this would cause some degree of mental distress for the second applicant, I am not satisfied that it amounts to the infliction of severe physical or mental pain or suffering or extreme humiliation which is unreasonable. Further, I am not satisfied that it would satisfy the requirement for there to be a perpetrator with the intention to inflict on the applicant severe physical or mental pain or suffering or extreme humiliation which is unreasonable. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[25]

[25] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).

129.   Regarding the second applicant’s Mandarin language skills, I accept that (aside from a few months in early 2015) he has resided outside China since [age] years of age and received his primary and secondary education in the English language. While the supporting medical and educational documents refer to him as ‘bilingual’, I accept the applicant’s explanation that he can speak and understand Mandarin (in which he communicates with her) but his skills are more limited than a native speaker. However, I find that any difficulties he would experience in China for this reason are not for any of the reasons in s 5J(1)(a) and would not amount to any of the types of significant harm defined in s 36(2A).   

Access to health care services and financial hardship

130.   The applicant claims that she and her son would not have access to public health care services if they returned to China. She confirmed that they are both registered on the hukou or household registration system at her mother’s address in Harbin city, being an urban area. According to DFAT, hukou registration with the local government entitles a resident to use government services such as education or health services in that local government area.[26] A 2012 World Bank report indicates that the hukou system regulates many social entitlements of Chinese citizens, including education, housing, utilities subsidies and social protection, including health care services.[27]

[26] Department of Foreign Affairs and Trade, DFAT Country Report China, 22 December 2021, p 39

[27] World Bank, China 2030: Building a Modern, Harmonious, and Creative High-Income Society, February 2012

131.   There are 3 primary social health insurance programs in China, depending on whether a person is registered to an urban or rural hukou, and their employment status. These social insurance schemes provide access to public health services. For urban hukou holders, the relevant schemes are the Urban Employee Basic Medical Insurance for those with formal employment and the Urban Resident Basic Medical Insurance for those that are not employed. Since China launched major healthcare reforms in 2009, 95 per cent of the population is now covered by one of these health insurance schemes.[28] As discussed with the applicant at the second hearing, the basic medical insurance program covers primary, specialty, hospital, and mental health care, as well as prescription drugs and traditional Chinese medicine.[29]

[28] BMC Public Health, Qiu, P, Yang, Y, Zhang, J & Ma, X, Rural-to-urban migration and its implication for new cooperative medical scheme coverage and utilization in China, 2011 Vol.11, no.520; World Health Organisation, Barber, SL & Yao, L, Health insurance systems in China: A briefing note, 2010 Background Paper 37; Institute for the Study of Labor, Lui, H & Zhao, Z, Impact of China’s Urban Resident Basic Medical Insurance on Health Care Utilization and Expenditure, Discussion Paper  No. 6768, June 2012; Center for Strategic and International Studies, Boynton, X & Ma, O, Payment system reform in China’s health care reform, Key Issues in China’s Health Care Reforms, December 2012; World Bank, China 2030: Building a Modern, Harmonious, and Creative High-Income Society, February 2012

[29] The Commonwealth Fund International Health Policy Centre, Report about the Chinese healthcare system, 5 June 2020

132.   Considering the country information discussed above, I find that the applicants would have access to public health care services if they were to return to their home area of Harbin. Even if the applicants were not employed, I find that they would be entitled to enrol in the Urban Resident Basic Medical Insurance program and access the health care services outlined above.

133.   The applicant claims that she would experience financial hardship due to limited job opportunities and an inability to register herself in an employer-sponsored superannuation scheme. I find any economic disadvantage she may experience for these reasons to not be for any of the reasons in s 5J(1)(a) and to not amount to any of the types of significant harm defined in s 36(2A).  

Conclusions

134.   The applicants have not raised any other claims for protection and I find that no further claims arise on the accepted facts.

1. For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) for a protection visa. It follows that they are also unable to satisfy the criteria in s 36(2)(b) or s 36(2)(c) of the Act.

   Referral for Ministerial intervention

136.   I have considered the circumstances of this case with respect to the Minister’s guidelines relating to their personal non-compellable power under s 417 of the Act to substitute a decision of the Tribunal for one that is more favourable to the applicant if it is in the public interest to do so. The guidelines indicate that the Minister will generally only exercise the discretion in cases which exhibit one or more unique or exceptional circumstances. For the reasons below, I find it appropriate to refer this case to the Minister.

137.   I consider there to be compelling compassionate circumstances regarding the age, health and/or psychological state of the second applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to him.

138.   As discussed above, I accept that the second applicant has an acquired brain injury causing [medical condition 2] and was assessed at a young age in China as having the highest level of disability. The country information indicates that the second applicant would face significant social, economic and psychological challenges in returning to China due to his disabilities. While I have found this to not amount to the type of harm required to satisfy the refugee or complementary protection criteria, I consider that it may result in serious, ongoing, and irreversible harm and continuing hardship to the second applicant.

139.   This is likely to be exacerbated by the second applicant’s lack of familiarity with China, his age and his [specified] challenges. Other than a few months in 2015 and holidays while living in [Country 1], he has not resided in China since he was [age] years old and has completed all his schooling overseas, primarily in Australia where he has had access to special needs learning supports. He is currently completing [grade] of high school and, according to the supporting medical and education documents, will require ongoing assistance and supports in transitioning to life outside of a school setting.

140.   I also note that this case raises circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child. The best interests of the second applicant, who is currently aged [age] years, may be served by the grant of a visa allowing him to remain in Australia, together with his mother, and have access to the ongoing supports and resources to meet his particular needs.

DECISION

141.   The Tribunal affirms the decision not to grant the applicants protection visas.

Mia Bailey
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.

…