1918436 (Refugee)

1918436 (Refugee) [2021] AATA 5388 (17 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1918436
COUNTRY OF REFERENCE:                   China
MEMBER:Luke Hardy
DATE:17 December 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2021 at 11:30am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – member of an underground church – credibility concerns – unfounded application – failure to attend Department’s interview – migration history – travelled legally in and out of China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant], who is a citizen of China, first arrived in Australia on a tourist visa [in] April 2017. She departed for China [in] June 2017 and then re-entered Australia [in] February 20198. She lodged a protection visa application on 2 March 2018.
[The applicant]’s claims relate to religion, in that she claims to have been persecuted by the Chinese authorities for belonging to an illegal underground church. The Minister’s delegate invited [the applicant] to attend an interview to discuss her protection visa claims but she did not respond to the invitation. The delegate refused to grant the visa on 1 July 2019. [the applicant] then sought merits review by this Tribunal. For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which mentions that she did not take up the invitation to give oral evidence in support of her written claims and which placed weight on her ability to travel legally in and out of China without being detained by the authorities in spite of her claimed circumstances there.
The matter has been constituted to me. I find that the review application is a valid one.
On 22 November 2021, the Tribunal wrote to [the applicant] at the email address she provided advising her that it had considered all the material in her application files but could not make a favourable decision on that information alone. The Tribunal invited [the applicant] to give evidence and present arguments at a hearing at 10:30am on 9 December 2021.
The hearing was to be held during the current COVID-19 pandemic, in the aftermath of a long lockdown in NSW but at a time when some health protocols were still operating and a full return to in-person hearings and in-office staffing had not yet been effected. I exercised discretion to hold the hearing by telephone, determining it was reasonable to do so, having regard to the nature of this matter and the health of the community including [the applicant]. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding undue delay to the matter were the hearing not to be conducted by telephone.
The hearing invitation informed [the applicant] that the hearing would be conducted by telephone on a number she had provided in her review application.
The invitation also provided a link to the Tribunal’s COVID-19 pandemic practices. Importantly, the letter advised that if she was not able to appear as scheduled, for instance, if not available on the scheduled day or because she believed she would experience difficulty participating in the hearing as arranged, then she should contact the Tribunal as soon as possible. The Tribunal provided a contact name and telephone number for that purpose. The invitation said that the Tribunal would only make changes to the scheduling if satisfied that it was reasonable and there were good reasons for doing so. Advice about translation/interpretating of the Tribunal’s correspondence was included with the invitation.
The Tribunal hearing invitation stated that if [the applicant] did not attend the hearing, the Tribunal might make a decision on the case without further notice.
The Tribunal also sent [the applicant] two SMS reminders at the telephone number she had provided. Records show that both of these messages reached that number.
[The applicant] did not reply to the hearing invitation as requested. However, she did answer the telephone on the day of the hearing and agreed to proceed. She took an affirmation to speak the truth and informed the Tribunal that she was alone in a secure place where she would not be disturbed by anyone.
Unfortunately, the hearing was interrupted and could not proceed on 15 December 2021. After I had commenced asking [the applicant] questions going to the substance of her claims, the hearing was interrupted by a crying baby whose cries abated only briefly. I drew it to [the applicant]’s attention that she had given misleading information to the Tribunal about being in a place where she and the hearing could not be disturbed and she apologised. She said she had not paid any attention to the hearing invitation letter (or, apparently, the two SMSs) and had only become aware of the hearing when the hearing officer rang before 10:30am to set it up. She said she had therefore made no arrangements with anyone to look after her child.
In the circumstances, I offered to re-schedule the hearing to 10:30am on Friday 17 December 2021, a day on which [the applicant] said there would be someone to assist her with minding the baby. I advised [the applicant] that if she did not pick up the telephone when we called her on 17 December 2021, I might proceed to a decision on the material before me without making any further attempt to contact her. We adjourned the matter at 10:58am.
The hearing resumed at 10:30am on Friday 17 December 2017 and ran for about half an hour.
Interpreters in the Mandarin-English medium assisted at both hearings.
I am satisfied that [the applicant] was provided with a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In her original protection visa application form, and in quite a lengthy statement of claims, [the applicant] said she feared persecution from the authorities in China due to her belonging to an underground Christian church and due to her refusal to join the state-sanctioned “Three Self” Protestant church:
The reason of why I had to leave China is that I could not live safely in China and I could not live a life with dignity and freedom there. Firstly I had been persecuted by the Chinese Communism Party and the Chinese government because I am a Christian. So it is a religious persecution. My life is at risk all the time. The second reason is that the Chinese government had been forcing me to do the things that I do not want to do because those things harm innocent kind people. And they harmed me and humiliated me when I said no to them. I am the first Christian in my family. I became a Christian in 2008. In that year I was forced to have an
abortion of my second pregnancy. I had a very severe depression after that. One of my colleagues found all these out. She took me to the hospital and seeks help from the medical professionals. And she brought me to attend her church service every Sunday. That was a small house church. Everyone in the church was very nice to me and tried to help me. I started to get better and finally recovered fully from the severe depression. Seven months later I also became a Christian. I found light, hope, love, and truth in Jesus Christ and God. From then on I attended all the church activities: Sunday worshipping, prayer meetings, and Bible studies. I love studying the word of God and had been grown quickly spiritually. One day before the Chinese National Day in 2011, two men came to my home saying they were from the Religious Affair Department of China. They smiled at me and told me the Chinese government cares about Christianity Faith very much. They wanted to understand more about the Christian religious activities so that the government can provide prompt support. At that time my understanding was we had religious freedom in China. So I was very happy when hearing them. Then they asked me about my house church and [what] we did in details. Then they asked me to tell them about my church things every week. I did because I believed they were there to support and help. Not long after, our pastor announced in the church that our house church was under government surveillance and we had to change gathering place and we should not use the telephone discussing faith issue. Then I suddenly realized I was used by
the government and religious freedom is a lie. I refused to tell anything about my church when the two men met with me again. They are actually policemen from Security bureau. They took me back to the police station and beat me to death [sic]. They told me I will be sentenced for life in prison if I do not cooperate with them. I was very afraid. So I told them the new gathering place of my house church and the new telephone number, the names of the pastor and member sisters and brothers. And I had to report to them the teaching topic every Sunday in the church. On a Sunday in May 2014, a team of police raided our Sunday service and arrested our pastor. I think this happened because I told them the teaching on that Sunday was No Authority Can Be above God, Always Obey God first. Later my pastor was sentenced into prison for 13 years. The charge was speech against the government. No one in the church knew about what I had been doing. I felt so guilty and so afraid too. I ran to live in another city. Not long after I was caught back to be the spy again. Whenever I refused to be the governments spy, they beat me, they beat my husband, and they threaten to beat my children and put all my family into jail. I had nowhere to escape. On Chinese New Years Eve 2017, in our house church we had a celebration with a group of believers from Taiwan, Malaysia and America. The police came again, arresting all the brothers and sisters of my house church. Each of us was kept in a different room. We were all beaten, forced to watch Chinese Communism films, forced to sign the repentant document, to deny our faith, and to pay a fine before we were released. But our new [pastor] disappeared for ever ...
The Chinese Communism Party and the Chinese Government harmed my body, harmed my mind, and harmed my spirit. The wound, the humiliation, the fear, the guilt, they are like hot brand imprinted on my body and heart. It is no longer a personal event, has become a religious persecution. Although these have been passed for months, they still are vividly in front of my eyes. Recalling them was a torture to me. When I refused to provide my house church activity details for the first time, my nightmare began. I was beaten to death [sic] in the detention center. The police officers hit my head with a plastic stick and I was beaten to faint. Then they hung me up, slapped my face over and over again, and whipped me with leather belt. Then they put salt on my open wounds. I was in such an agony. So I agreed to cooperate with them and spy my house church again. I stayed in bed for a month to recover after got released. The second time I refused to be the spy, the police beat me again. They even caught my husband into the detention center and forced me to watch them beating him. They beat him with police stick and their fists. They kicked him when they fell on the floor. It was horrible. The last time when I was arrested and brought back to the detention center, I was with all the brothers and sisters in my house church. Each of us was kept in different rooms. But I believe what happened to us should be the same. We were all got beaten first. Then we were forced to watch Chinese Communism films for two days, no food, no drink, no sleep allowed. Then if we cannot answer the socialist superiority of these videos, we shall not eat. This is a brainwashing behavior. Let us believe that the Chinese Communist Party is God. Then we were forced to sign a repentant paper to deny that we are Christians. If we do not sign the document, we have to watch the communism film for two days again, no food, no drink, no sleep. Most of us signed. Then the police informed the family members of us to pay a fine of thirty thousand RMB for each of us before we can be released. [Number of] sisters in my church could not afford the fine, so they were sent to the labor reform camp for two years. Another [number of] sisters and brothers of my church did not sign the repentant document. They were sentenced into jail for four years and nine months. Nobody knows what our [pastor] did. All we know is that he disappeared after that day until now. Spiritually persecuted is the most painful. After that, when the police officers met with me again to hear my report about our church activity details, they
raped me. And they forced me to have sex with them every week when I do my report. I had to do it even when I had my period. They threatened me that if I dare to say no, they will tell my
church that I was the traitor. During this period of persecution, the government has been advocating us that we are evil cults. We are unlawfully rallied and endangered by social order. These are the government fictional out, in order to let the people hate us. The police detained us in the detention center …
Regarding whether she could safely and practicably relocate to avoid relevant harm, [the applicant] said, “I did try to move to another part of China to seek safety. But the environment for Christians in China is the same everywhere.” meanwhile, I note the account she gave in her application form as to where she lived in China showed only one residential address in China [from] Aug 2008 [to] Feb 2018, when she last flew to Australia.
[The applicant] claimed that in the event of return to China, she and her family would be persecuted:
If I return to China, I do think, if I want to live, I will be limit the freedom of life and help the Chinese government to harm Chinese Christian again. And I have to be the police horn again. If I refused to cooperate, I may be arrested by the Public Security Bureau or send to labour reform program. And I will bring disaster back to my family. Unless I sign the letter of repentance and [participate in] the Chinese government official Three-Self Church. I simply talk about the three-self church. There are following reasons to understand the difference between these two churches. The first one is due to the difference between the management and leader. Three-self church is government led and religious policy as the principle of management of the church. Our house church is based on Christ and governs
the church on the basis of Bible teaching. Second is due to the establishment of different divisions. The management team members of the three-self church must be approved by
the Religious Affairs Bureau before they can be nominated. And there is a corresponding worship procedures and order, and these procedures cannot be disrupted or replaced. The
house church is set up according to the anointing of the Holy Spirit, the equipment of the truth, enjoying the gift from God, following the Bible, the moral character of the moral. Third would be the different way of development. Three-self church will be the implementation of political and religious unity, obedience to the governments religious policy, and participate in political movement. The house church advocates separation of church and government, obedience to the government under the principles of the Bible. This is the status of China so-called
religious freedom. The Chinese government persecuted the family church more than ten million, what a blood debt, too numerous, and no word is not enough to describe the crime. The
Chinese government has always adhered to atheism, contrary to God and human nature, the sacred religious beliefs just put under the leadership of the party, and even openly warned,
forcing tens of millions of Communist Party members "can only believe in Marxism-Leninism, not religious. With the international politics has become so pragmatic, moral is not as good as the international environment of the order, the Chinese people's dream of democracy and democracy is more empty, and religious beliefs of the road of faith is even more tragic! Law enforcement officers of all the way to the house church believers as their wealthy cash cow, to accept extortion fine without receipt to escape the torture and trial the only way out. I do not know how many people are forced to go bankrupt for religious beliefs. Or I could even lose my life, being killed by the police or being killed by my guilt. I could say there are no human rights in China, nor is it fair. In China, Christians are the name badge to be persecuted. As long as you are a Christian and have participated in a house church, then you will be persecuted at any time. While Western democracies have democratically-crafted laws that apply to everyone, Communist China has autocratically-imposed laws that are applied selectively based on the people and the relationships involved. Christian persecution does persist in China, but the current persecution of Christians in China is more sophisticated and multi-dimensional than in the past, whose mainstay was brute force. When Chinese government discovered an Underground Church in the past, persecution included its members being beaten and fined while their leaders were tortured, sent to labor camps, killed or simply disappeared. Today, such discoveries more commonly lead to pressure for the underground church to join the government-controlled Three Self church network, where unbiblical teachings abound and pastors do not; in an effort to further stifle Christianity.

[The applicant]’s original protection visa application contains a body of quite rigorously researched statistics and information:
As I mentioned above, the persecution is not a locally issue. I will be caught anywhere in China. Also due to Chinese household registration management system, I cannot live a normal life anywhere else in China. You can see, the religious freedom truth in China is that real Christians are severely persecuted, and freedom is only granted to the fake Three Self Church and fake Christians who dare to claim that the head and leader of the church is Chinese Communism Party. I do not want to become a fake Christian. It will do me no good in eternity. I want to be a real Christian, follow Jesus only. Jesus is the Lord, the God and the head of our church. So I will find no safety anywhere in China. Relocating in the country is helpless to me. As China regresses into a more Maoist regime, the Communist Party continues to place restrictive measures on religious freedom and executes its control over all forms of dissent by arresting or otherwise harassing those who oppose the strictures. According to current president Xi Jinping, religion must conform to and benefit a socialist society. At a national conference on religion held in April of this year, he urged his administration to ensure that religions "merge religious doctrines with Chinese culture, abide by Chinese laws and regulations, and devote themselves to China's reform and opening up drive and socialist modernization in order to contribute to the realization of the Chinese dream of national rejuvenation," and argued that the role of the Party was to "guide and educate the religious circle and their followers with the socialist core values." His words reinforced a pre-existing nationwide crackdown on religious institutions, including an ongoing cross demolition campaign, arbitrary arrests of pastors and lawyers, and the suppression of Tibetan Buddhists and Uyghur Muslims. Because China Aid receives reports on Christian persecution, this summary will spotlight their cases as examples indicative of a much wider repression of belief. In its 2015 Annual Report, Chinese Government Persecution of Christians and Churches in China, China Aid noted a 4.74 percent overall increase in persecution, based on how statistics gathered in 2015 compared to those collected the previous year. The various categories accounted for include: number of religious persecution cases (up 10.84 percent), number of persecuted individuals (up 8.62 percent), number of unjustly detained persons (up 6.14 percent), number of abuse cases (up 174.65 percent) and number of abused people (up 91.32 percent). Persecution campaigns made 2016 one of the most tyrannical years since the Cultural Revolution. As imprisoned human rights lawyers still fight for the right to defend their clients without legal repercussions, officials in Zhejiang province carry out the third consecutive year of a beautification movement that targets church crosses for demolition, Henan province launched a movement focusing on forcing "illegal" Catholic and Protestant churches to conform to socialist ideals, and authorities arrested and detained church members. Trials for lawyers rounded up in the 709 incident, the nationwide crackdown on human rights defenders named for the day it started, July 9, 2015, commenced on Aug. 2 with the sentencing of Zhai Yanmin, a rights activist who received a three-year suspended prison term for coordinating protests against government rule. A day later, a Tianjin court condemned Beijing church elder Hu Shigen to seven-and-a-half-years' incarceration and five years' deprivation of political rights for allegedly "subverting state power" by using Christianity to "spread subversive thoughts and ideas." The tribunal presented photos of his baptism as evidence of his guilt, and Hu was forced to confess to his crimes, after which he accepted his sentence and did not appeal.
The material cited immediately above is of particular interest because [the applicant] claimed in her application, which is written in detailed and quite flowing English, that she is unable to speak read or write English and would require an interpreter to assist her at a hearing, whereas she also said in her application that she did not use a translator to make her written claims and obtained no assistance from any other person in the completion of her protection visa application.
According to information in her original protection visa application form, [the applicant] obtained a passport from Chinese authorities, and was able to retain and use it frequently, without any potentially relevant difficulty, in spite of her claimed circumstances in China:
My travel document is my passport. I applied for my passport from Guangxi Province Ministry of Public Security Exit and Entry Administration of China, and MPS exit & entry administration of Guangxi Province issued it to me. In China if a Chinese citizen is planning to travel out of China, you can apply for your passport from only the Province where your household registration is. My household registration is in Guangxi Province and I am a Chinese citizen. I provided all the required documents and obtained my passport without problem …
I applied [Country 1] visa for spending my holiday time. I visited [Country 1] 2 times [in 2015 and 2017] and travelled most of the [Country 1] famous places …
I went to [Country 2] [in April 2014 and in June and July 2015] for a short holiday staying in [a Country 2 city] for just a week. And second time I went to [Country 2] for almost a month and visited more cities and famous places such as [cities and places specified] ...
I visited [Country 3] in 2014 during my annual leave holiday. It was a 8 days holiday in [Country 3] ... went to [Country 3] to explore Western culture and the famous romance in [Country 3]. It was my holiday experience ...
[The applicant] provided more detail about the purpose of her visit to [Country 1] in October and November 2015, the year after her purported troubles in China:
The reason for traveling to [Country 1] was spending my holiday time. I went to beaches for relax my body and spirit. This was the second time visiting [Country 1]. I travelled in [Country 1] deeply to explore the culture and nature ...
[The applicant] first arrived in Australia [in] April 2017 on a visitor visa. She did not seek asylum here and departed again [in] June 2017. Her passport, later submitted to the Department of Home Affairs as a requirement of lodging her protection visa application shows an arrival stamp in China dated [in] June 2017.
[The applicant] also described a further holiday in [Country 1] in 2017:
The reason for traveling to [Country 1] again was spending my holiday time. I went to beaches for relax my body and spirit.
[The applicant] evidently departed China legally on several occasions after her claimed troubles began in 2011 and purportedly intensified in 2014. She also was able to re-enter China legally on several occasions and was not, according to any of her claims, arrested or even briefly held by authorities on re-entry. She did not explain in her original application how she was able to travel so freely or why she voluntarily returned to China so many times throughout years when she purportedly faced physical and sexual violence from Chinese officials.
[The applicant] claimed to have had the same job in China from 2008 until February 2018 when she last travelled to Australia.
[The applicant] was asked in her protection visa application, “Has this applicant ever applied for refugee status or protection in any country other than Australia?” Her answer was “No,” even though she had visited [Country 3], a signatory to the UN Convention and Protocol on the Status of Refugees, and did so in 2014 closer to the time of the problems she claimed to have been experiencing in China. She did not explain in her application why she did not take the opportunity to seek asylum in [Country 3] in 2017.
[The applicant]’s claims to the Department were all unsupported.
Evidence to the Tribunal
At the first hearing on 15 December 2021, [the applicant] told me that she lived at the one address in [City 1], Guanxi province, for over 30 years before her last arrival in Australia. She acknowledged having travelled to other countries, confirming that she never resided temporarily in any other places in China. She said her parents still live in the house where she always lived in China.
After we resumed the hearing on 17 December 2021, I asked [the applicant] if all the information in her original protection visa application was true, complete and correct. In reply, she said, “Yes.” I asked her if it was true, as stated in the application form that her only language was Mandarin, and she said “Yes.” I put to her that not all in her application form was true complete and correct. In response, [the applicant] said that all the substantive information in her application was put there by a lawyer and that she did not know what he or she had written on her behalf.
I asked [the applicant] why she made an application for a protection visa, and she said she wanted to stay in Australia. I asked her why she wanted to stay here and she said she liked the environment. I asked her if she was talking about trees, rivers and koalas or the social and working environment. She said, “All these.” I asked her if there was any other reason why she wanted to stay here and she said there is now another reason, being that she has borne a child here.
[The applicant] said she has [number of] siblings in China all working. She said her parents babysit their grandchildren. She said, “We have a good life.”
[The applicant] confirmed that she worked for about seven years in the same job right up to her last departure for Australia. She said she has married in Australia.
I asked her if she had any other important information about her life in China and she said she did not. I put to her that her protection visa application was quite lengthy and full of detailed information about struggles she had endured. She then confirmed that the “lawyer” was the author of all that information and that she did not know what it was.
I asked [the applicant] what would happen to her if she returned to China and she said, “Nothing.”
I reminded [the applicant] that her visa application was an application for protection. She asked me to explain what that is. I put to her that, according to her oral testimony, it appeared that her protection visa is full of false information. I asked her if she wished to comment and she said, “Not really.” I put to her that her application contained detailed references to being raped and beaten by police for belonging to an underground Christian church. In rply she said all that information “was all arranged by the lawyer.” I put to her that she ws responsible for everything in the application as she had initiated the process of seeking to remain in Australia and had signed her name to the form. I invited her to comment on that observation and she indicated she did not wish to comment.
I asked [the applicant] if we had left any important information out of our discussion, and she said she had nothing further to say. I put her on notice to the effect that on the evidence before me, it might be difficult to make a decision in her favour and stressed that this would be a good time to mention anything that she thought might be relevant to the application she had initiated. She thanked me and said there was nothing more.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I 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. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] 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.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
On the evidence before me, this is a manifestly unfounded application. I conclude that none of the applicant’s substantive claims are true in any wise or degree. This case fails due to a comprehensive lack of credibility.
For the record, I conclude that marrying and bearing a child in Australia are not relevant grounds, separately or cumulatively, for a protection visa.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in China for any of the five reasons cited in s.5J(1)(a) of the Act. Her claimed fear of being persecuted is not well founded. She is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of China, I find that China is the “receiving country” in this case.
[The applicant]’s claims to complementary protection are essentially the same as her refugee status claims. Those claims failed due to their total lack of credibility.
In view of this, and also because the "real risk" test imposes the same standard as the “real chance” test, [the applicant]’s claims can no more succeed as complementary protection claims than they have done as refugee status claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, she does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy

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.
…

[2021] AATA 5388

17 December 2021

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