1914378 (Refugee)

1914378 (Refugee) [2024] AATA 1816 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  1914378
COUNTRY OF REFERENCE:                   China
MEMBER:Kylie Allen
DATE:16 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the third named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.

Statement made on 16 April 2024 at 10:42am
CATCHWORDS
REFUGEE – protection visa – China – business dispute – mistreated and persecuted by security officials and underworld figures – claims abandoned and new claims raised – religion – teenage child’s interest in and conversion to Islam with support of parents – attendance, activities and supporting statements – conversion accepted as genuine – country information – monitoring of and actions against religious groups and activities, especially Muslims – prohibition of religious activities to and by minors – small ethnic minority Islamic community in home city – applicant’s unique profile as Han Chinese teenager who converted in Australia – limited experience of school and community in China – modification of behaviour not reasonable and relocation not an option – members of family unit parents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(3), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan v MIEA [1989] HCA 62; (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 23 January 2017. They are a family comprised of the first applicant (the wife and mother), the second applicant, (the husband and father) and the third applicant, (their minor son). The delegate refused to grant the visas on the basis that the applicants were not owed protection.
The applicants appeared before the Tribunal on 27 February 2024 and again on 11 April 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 applicants were represented in relation to the review. The representative attended the Tribunal hearings.
INFORMATION BEFORE THE TRIBUNAL
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has also taken into account material provided by the applicants to the Department and the Tribunal as well as material provided by the Department to the Tribunal. The key information is summarised below.
Protection visa application and decision
On 23 January 2017, the applicants lodged their protection visa application with the Department. It included a personal statement from the first applicant that said that their family had been persecuted and mistreated by the head of Public Security Bureau of the local district in China as well as underworld figures who colluded with him, and they were forced to leave their home to come to Australia to seek protection. The statement outlined a number of incidents the first applicant claimed arose from a business dispute. The Department conducted a protection visa interview with the applicants on 2 May 2019 on which the first named applicant reiterated those claims. She advised that the second and third applicants are dependent on her application and she had nothing to add or change. On 15 May 2019, the delegate refused to grant the visas on the basis that the applicants were not owed protection.
Submissions to Tribunal
The applicants lodged an application with the Tribunal on 6 June 2019 seeking a review of the delegate’s decision. The Tribunal listed the matter for hearing on 27 February 2024. The day prior to the hearing the applicants advised the Tribunal that they had new representation and their representative made a submission to the Tribunal accompanied by a statutory declaration from the third applicant as well as a range of country information. It was submitted that the first applicant no longer pressed the claims made in the protection visa application including that the family feared harm as a result of a business dispute and that they had been persecuted and mistreated by the head of Public Security Bureau of the local district and underworld figures. The representative advised that the claim was abandoned in its totality such that it no longer needs to be considered.
The applicants’ representative submitted that the first applicant has a new claim that is contingent on her son’s claim for protection and that his claim should therefore be considered first. The sur place claim for protection by the son, or the third applicant, was outlined as follows. He was approximately [Age], when he entered Australia with his parents. He is now [Age]. In his statutory declaration made on 24 February 2024, he claims that he fears harm if he has to return to China on the basis of his conversion to Islam. This claim arose as a result of the applicant being in his formative years. He is old enough to form a view as to whether he wishes to embrace a religious faith, and he has embraced Islam. This claim could not be raised at the time of the application being made, nor before the time of the delegate’s decision (because his journey to conversion to Islam started in 2022), it is submitted that no adverse inference should be drawn from the post-application raising of this claim.
The accompanying statutory declaration from the third applicant set out his conversion to Islam between 2022 and 2024. He stated that he came to explore Islam after becoming friends with a group of Muslim boys at his school and he considered a number of religions before taking an interest in Islam. With the support of his parents and his friend’s mother he started classes with his friend’s Islamic teacher. Eventually [in] March 2023 he recited the Shahada and became a Muslim. He has attended prayers at the local community centre and he has attended mosque.
The applicants provided a table of witnesses prior to the hearing that supported the third applicant’s claimed conversion to Islam. Later these witness statements were provided in writing to the Tribunal. They included:
·     A statement from [Ms A], the mother of the third applicant’s friend who assisted him to learn about Islam, describing the applicant’s interest and learning in Islam.
·     A statement of support from [Mr B], the father of the third applicant’s friend, who advised that he witnessed the applicant’s conversion to Islam.
·     A letter from [Mr C], the third applicant’s Islamic teacher based in Lahore, Pakistan who advised that he provided him with Islamic lessons via Zoom.
·     A statement of support from [Mr D] a member of the [Suburb 1] Muslim Community Centre, who met the applicant when he was learning about Islam.
·     A statement of support from [Mr E] who met the third applicant at Friday prayers in [Suburb 2] and discussed Islam with him.
The applicants provided evidence about their claims at two hearing conducted by the Tribunal. At the first hearing the third applicant gave evidence about his faith and the process of his conversion to Islam. His parents also gave evidence in support of his claims. The applicants responded to concerns raised by the Tribunal about the timing of the claimed conversion, whether the applicant’s conversion was recognised by the Islamic community and whether the applicant would seek to continue to practice Islam on his return to China noting both his young age and the influence of his Muslim friends located only in Australia.
After the first hearing, the applicants’ representative provided further information in support of the third applicant’s conversion to Islam. This included:
·     A letter from [Mr F] of the [Suburb 3] Mosque stating that the third applicant has embraced Islam and is recognised by the Islamic community as a Muslim.
·     A certificate of conversion dated [January] 2024 signed by two witnesses.
·     A letter of support from [Mr G], the President of the [Suburb 1] Youth Club stating that the applicant is a genuine convert and an active member of the Islamic community.
·     A further statutory declaration from the third applicant setting out why he cannot practice his faith freely in Harbin in China. He statement included his views that it would be tough because of extreme government policies and no freedom to practice his religion. He is extremely afraid of the Chinese government and its policies. China has a history of restrictive religious policies. Authorities closely monitor religious activities, and there are limitations on religious expression, especially for him as he is too young and a new Muslim. He has seen on the internet and news that the Chinese government has been accused of violating human rights, many abuses and mass destruction of Muslims particularly in Xinjiang province. Mosques have been destroyed, religious figures targeted, and religious practices restricted. He is afraid that maybe the Chinese government will put him in prison. They might not let him go to mosques or do his prayers or force him to leave his religion and beliefs.
The Tribunal conducted a second hearing with the applicants and their representative to explore whether the third applicant would face a real chance of serious harm on his return to China as the Tribunal had information before it that there was a small Islamic community in Harbin that appeared to be left to worship largely without interference. The applicants submitted that the third applicant could be differentiated from that community because of his young age, his conversion to Islam as an ethnic Han Chinese person and the implied view that he and his parents could be considered to be against the supremacy of the Chinese Communist Party (CCP). The third applicant claimed that his adherence to Islam would become known to the community through his actions including his regular prayers and fasting at school during Ramadan, making him an easy target for discrimination, harassment and reporting the authorities. It was submitted that if he did come to the attention of the authorities that either he or more likely his parents would be questioned and likely referred for re-education with penalties for non-compliance. He feared that the only way he could live safely was not to practice his religion against his beliefs.
Country information
The Tribunal obtained and considered country information about Muslims in Heilongjiang Province from the Pew Research Centre, 'Measuring Religion in China', 30 August 2023. This pointed to there being a small Hui Islamic community in Heilongjiang Province.
The applicants’ representative provided country information relating to Islam and Sinicisation of religion in China from a range of sources including:
·     DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
·     ‘China 2022 Human Rights Report - Country Reports on Human Rights Practices for 2022’, United States Department of State, Bureau of Democracy, Human Rights and Labour.
·     ‘China 2022 International Religious Freedom Report’, United States Department of State, Office of International Religious Freedom.
·     Internet article: ‘How China is tearing Down Islam’, Financial Times, 27 November 2023; Mosques Shuttered, Razed, Altered in Muslim Areas’, Human Rights Watch, 22 November 2023.
·     Internet article: ‘World seemingly silent as China expands crackdown on Muslims and the mosques where they worship’, Fox News, 29 November 2023.
·     Internet article: ‘China’s new law to hold parents responsible for children’s criminal behaviour’, Global Times, 19 October 2021.
All of the country information provided by the applicants was considered by the Tribunal.
REFUGEE ASSESSMENT
Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she 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 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.
Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components which include that:
·the person fears persecution and there is a real chance that the person would be persecuted
·the real chance of persecution relates to all areas of the receiving country
·the persecution involves serious harm and systematic and discriminatory conduct
·the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion
·the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and
·the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.
Section 36(2) of the Act notes that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or a non-citizen in Australia who is a member of the same family unit as a person who is a refugee.
The issue in this case is whether the applicants are owed protection as refugees. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration on the basis that the third applicant faces a real chance of persecution in China on the basis of his religion.
The applicants claim to be from Harbin city in the Heilongjiang Province in China. The first and second named applicants are married and they have a minor son who was born in China. The applicants provided copies of their Chinese passports to the Department and Tribunal. On the basis of this information and their account of their life in China, the Tribunal is satisfied that the applicants are who they claim to be, nationals of China, and China is their receiving country. The applicants confirmed at hearing that they would be returning to Heilongjiang Province where they have a home and family as it would be too difficult for them to establish themselves in another province in China.
The Tribunal has considered the remaining claim pressed by the applicants in their submissions to the Tribunal that they rely on their son’s claim that he fears he will be persecuted on his return to China on the basis of his religion. The Tribunal had regard to the wide variety of evidence provided by the applicants in support of the genuineness of the third applicant’s conversion. Based on his own testimony as well as the letters of support from members of the Islamic community including an Imam, the Tribunal is satisfied that the third applicant is a genuine convert to Islam. The Tribunal is also satisfied that the third applicant seeks to practice his religion on his return to China and that this may involve external manifestations of his beliefs including prayer and fasting.
The Tribunal has had regard to the applicants’ claim that due to increasing Sinicization in China, the third applicant would face a real chance of serious harm because of his religion on his return to China. At hearing it was put to the applicants that the Hui Muslim community in Heilongjiang was small but that it appeared to be largely left alone by the government and police in Heilongjiang Province[1]. The Tribunal was unable to locate any reports of Muslims in that area facing harm because of their religious practice, nor could it find reports of children being harmed or otherwise excluded from practising Islam. The Tribunal did have regard to the 2021 DFAT report[2], which notes that restrictions on expression of Muslim religious identity are less pronounced ‘in regions where Muslims form a much smaller part of the population, and Muslim minorities are more heavily integrated into mainstream Han Chinese society.’ However, more generally, the DFAT report states that ‘DFAT assesses that Muslims are not able to practise their religion freely. DFAT assesses that Muslims face a moderate risk of societal discrimination.’ The Tribunal had regard to one Bitter Winter article[3] from October 2019 which said that authorities had required Muslims attending a Harbin city mosque to hold a patriotic performance and sing patriotic songs. The August 2023 Pew Research Center report[4] states that ‘children under 18 are not allowed to convert to any Religion.’ The report also notes that ‘Islam in China rarely draws converts from other religions.’
[1] 'Measuring Religion in China', Pew Research Center, 30 August 2023
[2] ‘DFAT Country Information Report People’s Republic of China’, DFAT, 22 December 2021
[3] 'Muslims Forced to Sing Patriotic Songs on Religious Festivals', Wu Haiping, Bitter Winter, 15 October 2019
[4] 'Measuring Religion in China', Pew Research Center, 30 August 2023
The applicants claimed that the third applicant has a unique profile and could be distinguished from the Hui Islamic community in Heilongjiang Province. He is a child. He is ethnically Han Chinese. He converted to Islam in Australia. They claim that he and his family would be perceived to be opposed to the supremacy of the CCP and that he would face consequences because of that, most likely re-education and more serious harm to him or his parents if he did not comply. The applicants also claimed that their unique profile would mean they would come to the adverse attention of their neighbours, family, teachers and friends in their local area. DFAT reports[5] that under Xi Jinping, China has introduced a renewed campaign to ‘sinicize’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China.
[5] ‘DFAT Country Information Report People’s Republic of China’, DFAT, 22 December 2021

The applicants pointed to the China 2022 Human Rights Report, Country Reports on Human Rights Practices[6] which states that there are significant human rights issues in China which include credible reports of: arbitrary or unlawful killings by the government; forced disappearances by the government; torture by arbitrary arrest and detention by the government including since 2017 of more than one million Uyghurs and members of other predominantly Muslim minority groups in extrajudicial internment camps, prisons, and an additional unknown number subjected to daytime-only ‘re-education’ training. The constitution of the People’s Republic of China, which cites the leadership of the CCP, states that citizens ‘enjoy freedom of religious belief’ but limits protections for religious practice to ‘normal religious activities,’ without defining ‘normal.’ The government recognizes five official religions: Buddhism, Taoism, Islam, Protestantism, and Catholicism. Only religious groups belonging to one of the five state-sanctioned ‘patriotic religious associations’ representing these religions are permitted to register with the government and are officially permitted to hold worship services, although other groups reported meeting unofficially.
[6] ‘China 2022 Human Rights Report - Country Reports on Human Rights Practices for 2022’, United States Department of State, Bureau of Democracy, Human Rights and Labour
Regulations require clergy to pledge allegiance to the CCP and socialism and to ‘resist illegal religious activities and religious extremist ideology, and resist infiltration by foreign forces using religion.’ The law bans religious or spiritual groups that the government considers to be ‘cults’ or to promote heterodox teachings. On March 1, laws came into effect banning unauthorized domestically generated online religious content and prohibiting overseas organizations and individuals from operating online religious information services in the country without a permit. On June 1, revised measures came into effect imposing greater CCP oversight of the financial management of religious groups and venues and regulating the handling of donations and real estate. CCP members and members of the armed forces are required to be atheists and are forbidden to engage in religious practices. National law prohibits organizations or individuals from interfering with the state educational system for minors, effectively barring individuals younger than 18 from participating in most religious activities or receiving religious education. The government reportedly continued to assert control over religious groups and to restrict the activities and personal freedom of religious adherents it perceived as threatening state or CCP interests, according to religious groups, nongovernmental organizations, and international media reports.
The applicants provided reports[7] that the authorities continued to remove ‘Arabic’ architectural features such as minarets from Hui mosques and other Muslim religious sites in Qinghai, Yunnan, Shanghai, and Beijing. NGOs reported that in June, riot police injured 20 Hui civilians protesting the demolition of the Baoshan Mosque in Zhaotong City, Yunnan Province. Bitter Winter[8] reported on September 23 that the government continued to Sinicize Hui mosques and other Muslim religious sites in Qinghai, Yunnan, Beijing, and Shanghai as part of the five-year ‘Sinicization program’ focusing on Muslims outside of Xinjiang Province. According to RFA[9], from June 27-28, CCP Chairman Wang visited the Dongguan Mosque in Xining City, Qinghai Province, to inspect the ‘renovation project’ there, consisting of removing the building’s Arabic-style architectural features. State-owned CCTV News broadcast video of his visit on June 30. Media reported that Sinicization ‘rectification’ began in August to remove the Arabic-style domes and minarets from the Doudian Mosque in Beijing, the largest Arab-style mosque in northern China. The project was expected to be completed in May 2023. Because the government and individuals closely link religion, culture, and ethnicity, it was difficult to categorize many incidents of societal discrimination as being solely based on religious identity. Christians, Muslims, Tibetan Buddhists, and Falun Gong practitioners reported societal discrimination in employment, housing, and business opportunities.
[7] ‘How China is tearing Down Islam’, Financial Times, 27 November 2023; ‘China: Mosques Shuttered, Razed, Altered in Muslim Areas’, Human Rights Watch, 22 November 2023; ‘World seemingly silent as China expands crackdown on Muslims and the mosques where they worship’, Fox News, 29 November 2023.
[8] Quoted in ‘China 2022 International Religious Freedom Report’, United States Department of State, Office of International Religious Freedom
[9] Ibid.
The Financial Times[10] reported that the government has also forbidden online material that advocates religions to minors, with some local authorities circulating notices banning under-18s from entering religious sites, or even practising religion at all.
[10] ‘How China is tearing Down Islam’, Financial Times, 27 November 2023
The applicants submitted that what one can conclude from the country information outlined above is that the third applicant, as a minor and convert to Islam, would not be able to practise his faith freely in China. The country information also shows a prohibition on him receiving Islamic teaching, as he is only [age]. The CCP clearly opposes Islam, for the obvious reason of their being a conflict between Islamic teaching and CCP dogma founded in communist ideology. There is an ongoing crackdown on Muslims who do not tow the CCP line, across China, and it is not limited to Xinjiang.
As noted above the Tribunal accepts that the applicant is a genuine convert to Islam, he has been undergoing religious education and he would seek to practice Islam on his return to China. At hearing he expressed concern about being taught about the teaching at public school. He also stated that his faith would be apparent at school as he would pray and he would fast during Ramadan. He expressed fear that children at the school would single him out and that he would face bullying, harassment and discrimination – presumably from students and teachers. He also said that it would be possible that people in the community including family and neighbours would report him to authorities for participating in a cult.
In this particular case it is difficult to know what harm the applicant would face for practising his religion in China as he is in a unique situation being a child and a Han Chinese Islamic convert. The applicants have speculated as to what type of harm he might face and the Tribunal has considered whether the denial of, or restriction upon, his right to practise his religion in China could amount to serious harm. In the High Court case of Chan Yee Kin v Minister for Immigration & Ethnic Affairs[11], Mason CJ held that serious punishment or penalty, or the imposition of some significant detriment or disadvantage, for a Convention reason will amount to persecution. His Honour added that the denial of fundamental rights or freedoms may, in certain circumstances, constitute persecution…the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage... Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. In the same case, McHugh J suggested that measures in disregard of human dignity can constitute persecution, as can the denial of access to education or the imposition of restrictions upon the freedom of worship in certain circumstances…to constitute ‘persecution’ the harm threatened need not be that of loss of life or liberty.
[11] CHAN v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS [1989] HCA 62; (1989) 169 CLR 379
On the one hand, the Tribunal considers that it is possible that the third applicant could engage in his faith privately in Heilongjiang Province or that he could seek to join with the Islamic community in Harbin without experiencing interference from the Chinese authorities, such that any restriction on his practice would not amount to persecution. There is little evidence of that occurring in the Islamic community Heilongjiang Province.
That said, it is unclear how the applicants would be viewed by the authorities given their time spent in Australia and the applicant’s unusual conversion to Islam in Australia as a child supported by his parents. Given the country information above in relation to the increasing restriction upon religious expression in school settings across China and the intensifying crackdown on religious groups and efforts towards preventing children from engaging in religiously based educational activities, the Tribunal finds that there is a real chance that the third applicant would be harmed as a result of practising his religion. The Tribunal considers that it is more than a remote possibility that the applicant would be harmed by way of bullying, harassment and humiliating treatment by school officials, teachers, and students for reason of his religion. Further, the Tribunal cannot rule out that the applicants would be approached by the authorities in relation to the applicant’s religious practice such that he would have to cease his practice or face consequences. In reaching the above findings, the Tribunal notes the types of harm described above – bullying, harassment and humiliating treatment by school officials, teachers and students – are comparatively lesser forms of harm than those specified in s 5J(5) of the Act.
However, having regard to the comments made about harm in Chan Yee Kin v Minister for Immigration & Ethnic Affairs the Tribunal has considered whether the cumulative effect of this treatment combined with the applicant’s particular vulnerabilities is sufficiently serious to constitute persecution in this case. Tribunal has had regard to the applicant’s young age and his limited experience of engaging with the school system and community in China. The Tribunal also has had regard to the applicant’s separation from the Muslim community in Australia and his usual support system. Taking into account those vulnerabilities and attributes, the psychological distress and physical injury that the third applicant will likely face in the Chinese education system and in his local community amounts to serious harm. The Tribunal is satisfied that the third applicant’s religion is the essential and significant reason for the persecution and that the persecution involves systematic and discriminatory conduct.
As set out in s 5J(3) of the Act, a person is taken not to have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country. However, as set out in s 5(J)(3)(c)(i), these reasonable steps do not include requiring a person to alter his or her religious beliefs or conceal them or cease to be involved in them or practise them. The applicant is recognised as a Muslim by the Islamic community in Australia and does engage in religious education. He openly expresses his religious beliefs freely in Australia. If was to take steps to cease to be involved in the practise of his faith and to forgo her religious expression this would be an impermissible modification of conduct.
The serious harm is feared from both state and non-state actors. Based upon the country information and available evidence in relation to the mistreatment of Muslims and the inability of children to practice their religion in China, the Tribunal finds that the state has facilitated their persecution in varying degrees throughout China and has enabled an environment within which their persecution by non-state actors has been permitted.
Taking into account the above country information, the Tribunal finds that the real chance of serious harm relates to all areas of China and relocation is not an option.
Based upon the above analysis, the Tribunal also finds that there are no effective protection measures available to the third applicant in China.
I am satisfied that the third applicant has a well-founded fear of persecution.
Refugee: conclusion
The third-named applicant meets the requirements of the definition of refugee in s.5H(1).For the reasons given above the Tribunal is satisfied that the third named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a). Having reached this conclusion, it is unnecessary for me to also consider whether the applicant faces a real chance of harm on other bases.
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the first named applicant, mother and second named applicant, father, are members of the same family unit as the third named applicant minor son for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the third named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the third named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.
Kylie Allen
Member

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

[2024] AATA 1816

16 April 2024

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

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