1933110 (Refugee)

1933110 (Refugee) [2023] AATA 4195 (6 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Sophie Xi Wang (MARN: 1278708)
CASE NUMBER:  1933110
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:6 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 06 September 2023 at 11:32am
CATCHWORDS
MIGRATION – protection visa – China – Federal Circuit Court remittal – religion – underground Roman Catholic – limited attendance when young – mother and uncle arrested – delay in applying for protection and period as unlawful non-citizen – attendance and activities in Australia to enhance protection claims, and limited supporting evidence – no leadership role – two children, one now Australian citizen – claim on family planning law ground withdrawn – passport and multiple departures and returns without difficulty – country information – official toleration – recent agreement between the Vatican and Chinese authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZEPZ v MIMA (2006) 159 FCR 291
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 Immigration and Border Protection (the Department) on 6 June 2016 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 18 May 2016. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia owes protection obligations.
The second and third named applicants did not present claims of their own to the Department. They rely on the protection claims of the first named applicant (the applicant).
On 1 July 2016, the applicant applied to the Tribunal for a review of the delegate’s refusal decision. A previous Tribunal – constituted differently – held a hearing on 8 February 2019. On 11 February 2019, the First Tribunal affirmed the refusal decision in Tribunal case 1609865.
On 11 March 2019, the applicant commenced judicial review proceedings against the First Tribunal’s decision in SYG570/2019. On 6 November 2019, the Federal Circuit Court of Australia remitted the matter by consent to the Tribunal for determination according to law. The Minister consented that the First Tribunal had fallen into jurisdictional error by stating in the decision record that the applicant had 'proselytised' in Australia, as that term was understood by the First Tribunal, where the applicant did not make this claim, and then using its rejection of that claim as the basis or part of the basis for rejecting the applicant's claim to intend to do so in China. The matter is now before the Tribunal pursuant to that order of the Court.
The applicants appeared before the Tribunal on 19 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.
In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, 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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations.
The Tribunal has before it the Department files and the previous and present Tribunal files.
The Department file contains a copy of the Protection visa application, photographs of church activities including baptism, two Baptismal remembrance certificates issued on 4 April 2016, copy of [Occupation 1 organisation] occupation assessment for migration purposes for the applicant dated 29 August 2011, certificate of baptism from the Catholic Archdiocese of Sydney dated [in] April 2015 for the applicant and second named applicant, copy of [University 1] letter to the applicant dated 21 July 2011, copy of IELTS test score results for the applicant dated 24 September 2011, copy of NSW birth certificate for applicant’s son (third named applicant), copy of NSW birth certificate for minor [Miss A], applicant’s daughter, copy of applicant’s daughter’s Chinese passport’s biodata page, copy of [the second applicant]’s Chinese passport’s biodata page, copy of the applicant’s Chinese passport’s biodata page, copy of applicant’s statement of claims in Mandarin and English translation of it, copy of Bridging visas grant date 20 May 2015 for all applicants, copy of Bridging visas grant date 22 June 2015 for all applicants, copy of delegate’s decision record dated 6 June 2016, copy of Bridging visas grant date 14 March 2019 for all applicants, application for working rights with Department dated 11 March 2019 for the applicant, and copy of the First Tribunal’s decision.
The First Tribunal file contains copy of a letter from [Church] stating applicants attended their church since June 2014, copy of a letter from [Catholic Primary School] dated 4 February 2019 confirming applicant’s daughter's enrolment since [Date], and a copy of the delegate’s decision record.
The present Tribunal file contains copy of the Court orders.
Applicant’s background
The following information was provided by the applicant in his application form for a Protection visa with the Department dated 8 May 2015.
The applicant is from the Fujian region. He identifies with the Catholic faith. He is of the Han ethnicity. He is a fluent speaker, reader, and writer of the Mandarin language. His parents and younger brother reside in China. He married his wife, the second named applicant, on [Date]. They had two children born in Australia, one of them is the third name applicant. The applicant first arrived in Australia holding a Student visa with an expiry date of 15 March 2011. The applicant then was granted with a further Student visa with an expiry date of 28 November 2012. The applicant stated that he departed Australia to China in June 2009 and in November 2009 to visit family. The applicant completed his education in China including a Bachelor degree in the Sichuan province at [University 2] in June 2008. He then completed a Bachelor degree at [University 1] in July 2011.
Applicant’s claimd for protection
In a written and undated statement of claims, the applicant claimed that he would be persecuted and arrested for participating in underground church gatherings because he did not recognise the Patriotic Church backed by the Chinese Communist Party (CCP). The applicant claimed he would not be able to attend catholic churches that did not follow the Pope’s teachings.
The applicant claimed that he would not be allowed to preach the gospel in China like any Catholic in Australia can. That he and his wife would be deprived from their mission and desire to preach the gospel to sinners and ignorant of their faith, that their souls would not go to paradise. That the Gospel Ban issued by the Patriotic Church is the fetters of his faith.
The applicant claimed that in 2010, when he returned to China to visit his family, he attended an underground church where he felt very nervous about being caught considering the risks, he was facing by participating in the house church.
The applicant claimed that his mother was arrested in 2014 for preaching the gospel and that she was released after his father paid bail.
The applicant claimed fearing harm for having breached the family planning laws as he and his wife had two children. He feared he would be forced to pay a fine and forced to undergo and sterilisation operation.
Nationality
The applicant claims to be a citizen of China. A copy of the applicant’s passport was provided. The applicant is a Chinese citizen. The Tribunal has assessed the applicant’s claims against China as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s 36(2)(aa).
The Protection visa interview
The applicant attended an interview with the delegate of the Department on 4 March 2016. The applicant and delegate discussed the protection claims submitted by the applicant. A summary of the interview is set out in the delegate’s decision. A summary of it follows.
The applicant confirmed at interview that he filled out his Protection visa application and got the assistance of another person (student) who was claimed to be more proficient in English. The applicant stated that he was aware of the English translation of his statement of claims and that it was accurate. He confirmed he did not want to change or add to his claims.
The applicant confirmed that he arrived in Australia [in] July 2008 holding a student visa. That his wife, second named applicant, also arrived on that date.
The applicant stated that he had graduated with [a Subject] degree from an Australian university. That this was in 2011. The applicant stated that after completing his studies he worked in [Work sector].
The applicant confirmed that he had returned to China on three different occasions: in June 2009 (he went back home to Fujian, to visit his family and marry his wife); in November 2009 (the applicant visited family in China); and in December 2010 (the applicant’s wife was pregnant who travelled back to China first and the applicant followed her to come back to Australia together). The applicant confirmed that he did not have problems exiting and returning to China on any of those three occasions.
The applicant stated that he decided to apply for a Protection visa because he believed in the Holy city and because in China people are not allowed to believe in that. Therefore, he worried that if he returned to China he would be persecuted.
The applicant was asked what he meant by being persecuted in China. The applicant claimed that in China being a Catholic is suppressed. That in China there are no churches approved by the Roman Catholic church. Therefore, that when they attend church in China, they would have to attend secret family churches which are forbidden by the government resulting in the church goers being arrested. That a very expensive fine would have to be paid to be released from jail. He further added that there was no religious freedom in China. The applicant was asked what he believed would happen to him, he answered that he attended these family churches in China, and he felt really nervous about potentially being found out and arrested.
The applicant was asked about the occasion he claimed he attended an underground church in China. The applicant stated that it was a group of people who read the Scripture and sang songs together. The applicant claimed that around 8 years of age he started attending the underground churches but that he stopped attending after he went to junior high school because it was a boarding school, and the school did not allow him to attend churches. The applicant said that he could have been around 13 years of age when he stopped attending underground churches. That his parents continued attending underground churches.
The applicant was asked about his faith, about when he became a Catholic. The applicant said that he was exposed to Catholicism from a young age but there were no Catholic churches, only family churches in China. That he was baptised the year before the interview in Australia because he could not be baptised in China. The applicant stated that he first attended a Catholic church, underground church, when he was a child with his parents.
The applicant was asked about his claim that his mother was arrested for attending an underground church. The applicant claimed that in June 2014 his mother was arrested, that he did not remember the exact date she was arrested. That maybe the religious bureau arrested her because she was attending a family church. The applicant stated that she was kept for two days after which she was released upon her husband having paid a fine. The applicant claimed he did not know where she was detained or held at.
The applicant was asked about his religious practice in Australia. The applicant was asked about the first occasion he practised his Catholic faith. The applicant answered that several weeks after his arrival he attended a church in [City] where he attended masses during his studies, for about 3.5 years. The applicant said that he attended masses in English and that he did not participate in holy communion. That he got baptised on 4 April 2015, during Easter.
The applicant was asked about his baptism in Australia which took place seven years after his arrival in Australia. The applicant said that he later in time attended a church where there was a Chinese priest where he was able to understand and get baptised. The applicant was asked why he did not attend a Catholic church in [City] where masses were conducted in Mandarin. The applicant said that he did not think of finding a Catholic church where Mandarin was spoken where he could get baptised earlier than seven years after his arrival in Australia. The applicant said that he decided to get baptised in Australia because he believed that was the only way in Catholicism one would turn him into a real Catholic. That through baptism one can become God’s children and be free of prior sins becoming a real Christian.
The applicant was asked to talk about his Catholic beliefs. He stated that he believed in God who is the only one who can free people from sins. The applicant said that Catholicism can bring happiness, one can be sin-free and go to heaven. That one can bring our worries to God, and he can help us. The applicant was asked whether he took communion and if so, what its meaning was to Catholics. The applicant answered that through Holy communion one received the Holy body and remembered what Jesus suffered. That receiving the Holy body is part of mass and that Holy communion is the most important part because represents the last supper shared between Jesus and his disciples, that Jesus said ‘..look this is my body’ that he announced he would be arrested the following day. The applicant was asked was Easter was. He answered that Easter was when Jesus came to life; that prior to his death Jesus was crucified and that after the third day he resurrected.
The applicant was asked whether he was concerned for his safety when he arrived in Australia. The applicant said that he was not worried while in Australia. The applicant was asked why after being in Australia since 2008 he decided to apply for a Protection visa in 2015, this also considering that he would learn about this among his Chinese community. The applicant said that he did not know there was protection for people who had religious beliefs. The applicant also claimed that he was interested in applying for a Skilled visa first.
The applicant was put country information about the government being tolerant about religious gatherings of 30-40 people in the Fujian region. The applicant answered that this tolerance depended on whether the church abided by the government policies. The applicant said that the gathering would have to be in secret to avoid being detected by the government, that he was unsure about the source of the country information put to him. The applicant said that people with high-profile would attract media attention whereas with people like his parents would only be asked to pay a fine after being arrested. The applicant was asked why he would be arrested if he did not have issues in the past, that his family and he did not have a high profile. The applicant said that the church he attended would not be registered and would be associated with the Roman Catholic church therefore the government would focus on his church. That the government would monitor the church’s proceedings.

The applicant claimed that people cannot evangelise others in China otherwise he would get arrested, that he felt he had the duty to evangelise. The applicant was asked when he had evangelised in Australia. He answered that he evangelised before attending catechism classes. The applicant said that he evangelised friends to attend church in 2014 in Australia. The applicant was put that the Catholic faith is not known to evangelise to others. He answered that he felt that was something every Christian had to do.
The applicant was asked at a later stage of the interview again when and how he learnt about his mother’s arrest. The applicant said that he did not remember. The officer said to the applicant that he himself had stated earlier in the interview the month and that it was surprising he did not remember the month she was arrested. The applicant said he did not remember the month or exact date. The officer said that this raised credibility doubts as to the veracity of this claim. The applicant said that he offered rough information earlier in the interview because the officer kept asking the applicant about a date.
The applicant was asked about any other protection claims. The applicant said that he previously claimed having breached the family planning laws because he and his wife had two children, and that he and his wife would potentially have issues registering their second child in China. The applicant said that he had not register his first child in China. That he and his wife did not have a permit to have more than one child and therefore he was unsure whether they could get a family registration or not. The applicant was concerned about his children not having family registration. The applicant was put information that China had changed its family laws in 2016 and there was more flexibility about registering a second child. The applicant stated that he could not tell whether he would or not be asked to pay a fine for having a second child.
The Delegate’s decision
The delegate accepted that the applicant was of the Catholic faith and was baptised. That the applicant had knowledge of the Catholic tenets and faith.
The delegate did not accept, however, that the applicant would be persecuted for having been involved in the underground church in China. That the applicant would therefore attract the interest of the Chinese authorities. That according to 2015 DFAT country reports and information, the Chinese government was tolerant to underground churches. That the Catholic priests in China had association with the Roman Catholic church and that the Catholic teachings did not differ to the point of causing the applicant to change his fundamental beliefs or faith.
That the applicant’s mother did not suffer harm from being arrested as the applicant could not even tell when she was arrested. That the applicant by attending underground church gatherings alone would not be blacklisted and sought by the Chinese authorities.
The First Tribunal hearing
The applicant attended a hearing on 8 February 2019. The present Tribunal had access to the interview recording. A summary of it follows.
The Tribunal explained to the applicant the legal framework and criteria to be met to be considered a person who is owed Australia’s protection obligations. The applicant was informed that the Tribunal had before it his review application, the Department file, copy of the delegate’s decision record, copy of the DFAT report on China and thematic report on Fujian. The Tribunal stated that pre-hearing evidence in the form of daughter’s school enrolment was received.
The Tribunal read out the applicant’s written claims to the applicant to gain confirmation that the claims were accurate. The applicant confirmed the claims read out to him were accurate and complete, and that his family were dependent applicants.
Applicant’s migration history
The applicant confirmed that he first arrived in Australia in July 2008 holding a Student visa, and that he had a couple of Student visa extension with the last expiry date on 28 November 2012. The applicant confirmed that on 28 November 2012 he remained unlawful in Australia until he applied for the Protection visa on 18 May 2015. The applicant confirmed that he returned to China on three separate occasions: June 2009, November 2009, and in December 2010.
The applicant was asked why his migration agent in 2011 did not tell the applicant about the Protection visa when he was applying for Student visa extensions. The applicant said that he was unsure and that he thought the agent only did Student visas. The applicant acknowledged that he knew that he was unlawful in 2012 but that at the same time he was scared to return to China, that he did not know what to do with an expired Student visa. That he did not know anything about Protection visa until after he started going to church in 2015. That he learnt about Protection visas in 2014 when he attended catechism lessons.
Applicant’s claims regarding his faith and religious practice
The applicant acknowledged that he might have been baptised to bolster his Protection visa claims. The applicant said that he would have applied for a Protection visa if he had learnt about it earlier in time. The applicant in answer to the Tribunal’s concern of the timing for him to start attending church and getting involved in church and his Protection visa application to bolster his claims, the applicant said that that concern was unfounded because he was a Catholic before coming to Australia. That he attended an underground church in China before coming to Australia but could not get baptised in China. The applicant told the Tribunal that he could not remember how many times he had attended the underground church but that he may have attended many times with his parents when he was young.
The applicant was asked about his practice of his faith. He said that he attended the [Suburb] church every Sunday, that mass took place from 11:30am. The applicant stated that he took communion and that kids go to kids’ church.
The applicant was asked about the meaning of ‘preaching the gospel’. He answered that it means that his mother went to her friend’s place to tell her about God and to ask her to believe in God.
The applicant was asked the meaning of ‘being committed to the gospel’. He said that he meant what he had stated in his written statement as continuing to preach the gospel. The applicant was asked about the meaning of ‘preaching the gospel’ given that this was not a Catholic practice in Australia. The applicant answered that he agreed with that practice but that he believed that he could introduce friends to God and to become Catholics. The applicant was asked about the number of people he had converted to Catholicism. He said that he had done that with one person, his wife’s cousin’s wife.
The Tribunal expressed to the applicant its concerns about proselytising in Australia because preaching the gospel was not a practice of Catholics in Australia. That Catholics simply attend church. The applicant said that in China if he had friends who did not believe in Jesus Christ, he could tell them about Jesus Christ so that they believe in Him. That this was his Catholic faith, that it was his duty to share his faith with others. The applicant was put that this may be a Falun Gong’s faith but not among Catholics. He said that many Chinese have never heard of the gospel, so it is necessary to tell them about Jesus. The applicant was put that that would be quite a task, to reach to millions of Chinese in Fujian alone who may need to hear about Jesus. He acknowledged that he did not preach the gospel in Australia but in that China, he would need to do it.
Applicant’s mother’s arrest
The applicant was asked about family relatives who were arrested in China. The applicant said that his mother and uncle were arrested. The applicant was asked about his mother, he said she was arrested in June 2014 because she attended one of her friend’s places to give her the gospel and that she was arrested at the house by the authorities. The applicant was asked about how long she was kept, he said she spent two days in jail. The applicant stated that his uncle attended an underground church who was arrested along with 10 people, that he did not ask how long he was arrested for. The applicant was put that these events took place after he left China and events he was told by his mother. He confirmed this was correct.
Country information
The applicant was put that he could attend underground churches if he did not want to join the Patriotic churches. That in Fujian alone there were 1.6 million worshippers in underground churches, and that local authorities tolerate operations of underground churches of up to 50 people (DFAT report).
The applicant acknowledged that his name was recorded on the list of underground church goers in China.
That there were report of an agreement between the government and the Catholic church where there was freedom to associate, believe, congregate, and read the Bible in China. That the religious practice was open and allowed and without interference from the Chinese government. That there were palliative care places run by Catholic organisations. That the applicant could continue his commitment to Catholicism by joining these churches. The applicant said that he thought that the Roman Catholic and People did not recognise these Patriotic churches. The Tribunal put to the applicant that 90% of Catholic priests in China were in closed association with the Pope and had been ordained by the Pope. The applicant rebutted the country information and said that in China those churches were not recognised by the Pope. The applicant added statements that the Chinese government withheld information from their funded media, that the Bible was no longer available for sale in China.
Family planning laws
The applicant was put information that China had changed its family laws in 2016 and there was more flexibility about registering a second child. The applicant stated that he could not tell whether he would or not be asked to pay a fine for having a second child. The applicant accepted that the family planning laws had changed in 2015 and he could then withdraw his claim in relation to black children. However, the applicant stated he could be forced to pay a fee and could not get a ‘hokou’. The applicant was insistent at hearing that according to what his parents in China had told him that he would have difficulties in registering his children for them to have a ‘hokou’.
Present Tribunal hearing
The applicant attended a hearing on 19 July 2023.
The present Tribunal file contains copy of the past Tribunal file containing copies of a letter from [Church (WSCCC)] stating applicants attended their church since June 2014, and letter from [Catholic Primary School] dated 4 February 2019 confirming applicant’s daughter's enrolment since [Date] , copy of the delegate’s decision record, and copy of the Federal Circuit Court of Australia’s order.
On 19 June 2023, the Tribunal received correspondence from the applicant’s representative confirming that the minor, [Miss A], was now an Australian citizen and no longer part of the review.
The Tribunal considered the material provided by the applicant up to point of the hearing date.
The Tribunal explained that the matter had been sent back to the Tribunal to be reconsidered and that the Tribunal would be considering the facts and issues as they are at the time of its decision.
The Tribunal went through the introductions and explained the issues it was considering.
The applicant indicated he understood the interpreter. The Tribunal stated that the applicant had been working and studying in Australia for some time and asked whether he required complete interpretation or assistance at times. The applicant indicated he required complete interpretation.
The applicant and Tribunal had the assistance of a Mandarin interpreter.
The applicant stated that the claims in his original application for protection were still his claims. The Tribunal asked the applicant to go through why he felt he could not return to China.
He responded with words to the effect that it was because of his religious beliefs. He stated he belongs to the Catholic Church and if he was to return to China, he would have no free choice in relation to religion and he would have to attend a government recognised church. He stated words to the effect that the government is forcing Catholics to join the patriotic church, but he considers it is not the real Catholic Church. He claims that due to this he could only join an underground or family church.
He claimed that he would then be subjected to oppressive behaviour. He said that he would be subjected to persecution and at any time the church could be destroyed.
He stated he has two children in Australia who attend Catholic schools.
He stated that the third named applicant is in grade [Number] at a Catholic school in Australia.
He stated words to the effect that the Catholic system is forbidden by the government in China and his children will be traumatised if they return to China.
The Tribunal then asked for some background. The applicant stated that he has parents and a [brother] in China. He stated his parents have retired and his brother is [an Occupation 2]. In Australia he has his wife and two children. He works in [Work sector].
The Tribunal then discussed with the applicant his original claim that his children cannot return due to being in breach of the family planning laws and fines in China.
The Tribunal discussed with the applicant the country information and he agreed that it was no longer an issue. He stated that this was no longer a claim, and he was only concerned about religion.
The applicant discussed with the applicant that he was still attending church at [Suburb]. He stated that he attended the church as the service was in Mandarin and the priest conducting the service speaks Mandarin. He stated that it was mainly Chinese who attended the service.
The Tribunal discussed with the applicant when he first started attending church in Australia. He started he first attended in 2014. He stated words to the effect that he started to attend classes which educate people about the Catholic faith and to prepare for baptism.
The Tribunal asked if he was saying he did not go before that. He stated that he went to underground church in China.
He said that he had gone to church in [City] when he was a student. He stated that this did not happen very often. He stated he just listened and did not take communion.
The Tribunal asked why he did not take communion. He responded that was because he was not baptised.
The Tribunal asked if he took communion in China. He responded with words to the effect that he did not. The Tribunal asked why he did not take communion. He responded that the underground church was not complete and there were no priests.
The Tribunal discussed with the applicant that in the Catholic religion it is not necessary that a priest baptise you and that lay people could provide communion once it has been consecrated by a priest.
He stated that he did not know that. The Tribunal discussed with the applicant that at the end of mass he would have seen the priest invite people up to take the communion host for distribution to people who cannot attend church due to being sick or incapacitated. He indicated he did not see that.
The Tribunal asked if the applicant was married. The applicant stated that he was married. The Tribunal discussed that the Catholic church believes marriage is a sacrament. He stated that he had undergone a civil ceremony.
The Tribunal then discussed the applicant’s family in China. He stated that both parents are retired, however, from his memory they took him to church activities when he was young. He claims they were extremely careful so they would not be discovered. The Tribunal discussed with the applicant country information which was relevant to that time and discussed with him by the previously constituted Tribunal that when he was a child, things were not as strict as now and many Catholics could practise in both underground and official Catholic churches.
He responded with words to the effect that he did not know about that, but his parents were very careful. The Tribunal asked if his brother was taken to church. He responded that his brother was too young and if they brought him, it would jeopardise the safety of the church.
The Tribunal asked if they took his brother when he was older. He responded that his brother did not want to go so he did not go.
The Tribunal discussed with the applicant his claim that his relatives in China were detained. He stated that his mother and uncle had been detained. He stated that his mother was arrested in 2014 for preaching the gospel. He claims she was detained for two days.
The Tribunal asked if she had been detained since then and he responded that she had not been. The Tribunal then discussed with the applicant whether he had proselytized in Australia. He responded that he had introduced one person to the church and that was his wife’s cousin.
The Tribunal then discussed with the applicant his claim that his family had come to the attention of the authorities, however, it did not appear that his brother’s career was affected.
He responded that his brother was already working at the hospital when his mother was arrested.
The Tribunal discussed with the applicant his participation in religious events in Australia. He stated that he participates in religious activities. He stated that not long ago he participated in a walk with Jesus. The Tribunal asked the applicant to explain what the walk with Jesus was about.

100. He responded with words to the effect that it was to demonstrate Catholicism to the public and the presence of the Catholic church in the city and to preach the gospel.
101. The Tribunal discussed with the applicant that he claims his family in China were underground Catholics, yet they only came to the attention of authorities once. He responded that before his mother arrested, she had been very careful and did not attract attention, The Tribunal asked if the applicant’s father was an underground Catholic. He stated that he was, however, his mother and father did not attend church together.
102. The Tribunal discussed country information which was provided to the applicant by the previous Tribunal which indicates that at the time of his previous Tribunal hearing there was information which indicated that many underground Catholics particularly in Fujian province moved between the official church and underground church and were allowed to attend small gatherings in their home and prayer groups.
103. He responded that his parents never went to the official church.
104. The applicant confirmed to the Tribunal that he follows the teachings and guidance of the Vatican.
105. The Tribunal then discussed with the applicant that the Vatican had entered into an agreement with the authorities in China on the appointment of Bishops and recognised those appointed by the Chinese authorities and wanted Chinese Catholics including underground Catholics to attend the official Catholic church. The Tribunal discussed country information which indicates that the Vatican had extended that agreement into the appointment of bishops for a further two years in 2022. He responded that the underground churches are persecuted.
106. The Tribunal discussed with the applicant his previous evidence that he believed his mother was on a blacklist and could not leave the country. He stated that he believed that was the case as she was not granted a visa to visit Australia.
107. The Tribunal discussed with the applicant that he had previously departed China for Australia on four occasions. He agreed he had no difficulty leaving China.
108. The Tribunal asked if the applicant had attended house churches in Australia. He responded that he had not, and this was due to the transient nature of the personnel.

109. The Tribunal then discussed with the applicant his immigration history which shows he has been on numerous Student visas since 2008 and when the last visa expired, he was unlawful until he lodged an application for protection in 2015. The Tribunal discussed that his history and delay in lodging an application for Protection could look like his aim was to stay in Australia and not his fear of persecution.
110. The applicant responded that he did not lodge an application for protection earlier as he did not know about Protection visas. The Tribunal discussed with him that he had numerous Student visas and mixed with others on Student visas. He responded that he thought the only visa was for a Skilled visa. He claimed that his migration agent and other students only spoke about Skilled visas.
111. The Tribunal again discussed with the applicant that he could attend an official church in Fujian China and the agreement entered into with the Vatican. He responded that he did not accept this, and the authorities were persecuting the official church as well as underground church.
112. The applicant’s representative asked for further time to provide submissions. The Tribunal provided further time for this to happen.
113. After the hearing, the applicant provided a further statutory declaration addressing whether priests are needed for someone to be baptised and whether lay persons can distribute communion after it has been consecrated by a priest.
114. The applicant supplied submissions which indicate that laypersons can baptise, however, it is preferable for priests to officiate at a baptism. He provided articles and submissions on the agreement between the Vatican and the authorities in China.
115. At hearing the Tribunal, when discussing the agreement between the Vatican and State referred to Jesus’s teaching Mark 12:17 Give to Ceasar what is Ceasar’s and to God what is Gods. The applicant provided submissions on that point.
116. The Tribunal has considered those submissions. The Tribunal accepts that there has been conflict between the authorities in China, underground Bishops and leaders of the underground church.
117. Country Information
DFAT 16 December 2016 states that, in general, ‘individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party [CCP].’ DFAT further advises that the CCP is ‘largely indifferent’ to individual religious practice (although Party members are not permitted to follow any faith), but it does obstruct religious practice at an organisational level.[1]
[1] DFAT Thematic Report Fujian Province, People’s Republic of Chine 16 December 2016 [3.15] (‘DFAT Thematic Report China’).
The DFAT thematic report has a section titled ‘Unregistered, Underground or “House” Churches’ and notes here that unregistered churches are subject to less control by the state than government-affiliated churches ‘but also operate at greater risk given their unregistered status.’.[2] DFAT also states that its in-country contacts question the ‘validity of the “registered” and “unregistered” dichotomy, pointing out that members of a congregation will often move between the two.’.[3] Other relevant information in this section includes:
The treatment of unregistered churches varies greatly in Fujian (and across China), depending on the attitude of local authorities. In general, sources indicate that Fujian authorities tolerate unregistered churches who meet discreetly in small congregations.
An unregistered church or associated individual who engages in active/public proselytising or is viewed to criticise the CCP or its religious regulations would ‘likely be exposed to harassment, raids and destruction of property, pressure to join or report to… [government-affiliated] churches and occasional violence and criminal sanction.’ This is more likely to affect the leaders of such churches, rather than individual worshippers.[4]
Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain.[5] There has been one recent report of an unregistered church demolition in January 2016. DFAT states that it is unable to ‘comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.’.[6]
In relation to the government-affiliated Catholic Patriotic Association (CPA), DFAT assesses that:
[D]irect interference by local authorities in the operations of…CPA-linked churches in Fujian rarely occurs (particularly compared to other areas in China) and that worshippers at TSPM- and CPA[1]linked churches are generally able to openly practice their religion, including with a significant amount of public visibility (by attending clearly identified churches, for example), without interference.[7]
DFAT also notes that leaders of large CPA-linked congregations can attract overt attention from local authorities if they are thought to be using their position to challenge or criticise the CCP. According to DFAT’s in-country contacts, if an individual involved in a CPA-linked church does come to the attention of local authorities they ‘may be subjected to detention, intimidation and/or harassment.[8]
Underground Catholics –
Fujian province
The government and the Holy See do not have official diplomatic relations, and the Vatican has no representative in China. However, in September 2018, the Chinese Communist Party and the Vatican came to an agreement on the appointment of Catholic bishops after years of negotiations. The Vatican recognised the legitimacy of seven state-appointed bishops and re-admitted them into the church and agreed on a process for the appointment of bishops in which the Holy See will approve or veto candidates nominated by Beijing authorities after an initial diocesan election. The agreement has been criticised by those who fear it could divide Catholics in the country and cedes too much power to Beijing. During 2018 and 2019, authorities in Fujian province have attended the premises of various unregistered churches and requested that they register their churches with the Chinese Patriotic Catholic Association.[9]
[2] Ibid [3.10].
[3] Ibid.
[4] Ibid [3.13].
[5] DFAT Thematic Report China above n 1 [3.14].
[6] Ibid.
[7] Ibid [3.8].
[8] Ibid [3.9].
[9] China: CI190316110337695 – Underground Catholics – Children – Fujian province 12 April 2019 p 10.

Findings and consideration of Evidence
118. The applicant’s evidence is that he was brought up in a family in China who were underground Catholics. His evidence is that from when he was a small child his parents took him to underground church activities in China. His evidence is they were devout, and his mother and uncle were arrested and detained for their beliefs.
119. He claims that he came to Australia and attended church. He claims that he at first observed church in [City] but did not take communion. His evidence is that he did not do this often. He claims that if he returns to China he would have to preach the Gospel.
120. His evidence is that in 2014 he joined catechist classes to learn about the religion and prepare for baptism. His evidence is that he never took communion in China.
121. The applicant claims that he was not baptised or took communion before coming to Australia as there were no priests.
122. The Tribunal does not accept this as an honest response. Lay persons in Catholicism can officiate at baptisms and provide communion which has been consecrated by a priest. Many remote communities around the world can participate in services due to this.
123. The applicant provided further submissions to the Tribunal. In those submissions and links to articles it states that baptism in circumstances where there is no priest are permissible it may not be ideal, but it is permissible.
124. In earlier submissions to the Department the applicant spoke about recently hearing, when in Australia, of the church in his village being demolished. This would indicate that at the time he was in China there were priests in the village.
125. Earlier, the applicant claimed he was on a list of underground church goers and may be known to authorities; however, he was able to depart China four times with no difficulty.
126. The Tribunal does not accept that if the applicant came from an underground Catholic family in China which was so devout, they were willing to be detained and risk their family’s reputation and safety that they would not have had their child baptised or allowed them to take communion.
127. The Tribunal accepts that certain communities may not force their children to participate, however, his evidence is that he did participate, and his brother did not.
128. It was not until his efforts to stay in Australia were exhausted that he lodged an application for a Protection visa and started attending classes to learn about Catholicism and attend church.   The timing of the baptism seven years after he came to Australia and participation in classes and church activities indicates that he participated to enhance his application for protection.
129. The applicant stated that his parents were careful about his participating in China as he was not allowed to attend. The Tribunal discussed country information relevant to that period when he was a child, which indicated that Fujian had a liberal attitude at that time and many underground Catholics were allowed to participate in house churches as well as the official church as long as they did not criticise the authorities. His response to this was not persuasive or convincing as he simply stated that they would be persecuted.
130. He claims that his mother was detained in 2014. He did not know when his uncle was detained. He claims that his mother is on a blacklist as she was denied a Visitor visa to Australia. When asked to explain why they suddenly came to the notice of authorities in the period he lodged his application for protection he could offer no convincing explanation except to say they had previously been careful.
131. The Tribunal does not accept that the applicant would have been able to leave China on his own passport four times with no problem and his brother attend a University in China and works in a prestigious position as [an Occupation 2] in a [Workplace] if the authorities had any concerns about his family’s behaviour and loyalty to the Communist government. If the applicant’s family were such devout underground Catholics the Tribunal would have expected, they would have come to the attention of the local authorities. The applicant gave evidence to the previously constituted Tribunal that his brother was a member of the Communist Party. The Tribunal does not accept that as a member of the communist party he would have been able to promote his career if he had the difficulty of his parents’ conducting activities which were seen as hostile to the authorities.
132. The Tribunal does not accept that the applicant’s mother and uncle were detained by authorities for reasons of religion including preaching the gospel.
133.   When queried about why his brother was not taken to underground churches as he claims he was as a child he simply responded he was too young and then that he did not want to.
134. The Tribunal discussed with the applicant the Pope’s letter and agreement with the authorities in Beijing to accept underground Catholics. The applicant agreed that the Vatican may be doing this to protect the Catholic community in China, however, he claims he cannot participate in the official Catholic church in China.
135. The applicant at hearing stated that he accepted the guidance and teachings of the Vatican, however, could not explain in a persuasive manner why he could not follow the directions of the Vatican to participate in the official Catholic church and sacraments. In Australia the applicant attends mainstream Catholic churches.
136. There is nothing before the Tribunal to indicate that the applicant is a leader or organiser of any prayer groups or communities. Country information indicates that if one does not come to the attention of the authorities he could participate in the rituals of the Catholic religion and undertake the sacraments in China.
137. The applicant stated that he and his wife had only undergone a civil ceremony when they married. The Tribunal discussed that the Catholic religion considers marriage a sacrament. He did not respond to that in any meaningful way which would satisfy the Tribunal as to why he had not participated in the sacrament of marriage.
138. The Tribunal does not accept that the applicant or his family were devout Catholics in China who participated in illegal underground churches and activities. His evidence is that in 2014 he joined catechist lessons in Australia to learn about the religion and prepare for baptism. The Tribunal does not accept that if he came from a devout Catholic family, he would have needed to undertake this journey. He would have already been baptised and have a knowledge of the sacraments and participated in communion.
139. When it was put to the applicant that at the end of mass the priest often provides consecrated hosts to be distributed by lay members to the sick or incapacitated who cannot attend Mass, he indicated he did not know this. The Tribunal finds this concerning as he claims to attend the Catholic mass on a regular basis.
140. His response that he was not baptised or had taken communion was because there were no priests in China is not accepted as truthful by the Tribunal. This contrasts with his statement to the Department provided with his application for protection in May 2015 in which he refers to recently hearing that the Catholic church in his village had been sealed up. This would indicate that during his childhood there were priests available in his village.
141. The applicant provided copies of his and the second named applicant’s baptismal certificates dated April 2015, letters showing the baptism of his two children in April 2015, he provided a copy of a letter from the President of [Organisation] stating that he had been part of the community since June 2014. No other details were provided in relation to any leadership or participation in groups.
142. The Tribunal accepts that the has attended church and participated in some activities. The Tribunal has sighted the photographs provided by the applicant of the applicant and his family behind a banner for Corpus Christie. When asked about the meaning of the feast he gave a very general explanation about demonstrating the presence of the Catholic church in the city. The feast of Corpus Christie is a solemn feast about the transfiguration of the host into the body and blood of Christ. The Tribunal does not expect a detailed theological explanation, but one expects that someone who professes such attachment to the Church that he would risk his and his family’s life on return to China would know it was more than demonstrating the Catholic church in the city.
143. The Tribunal does not accept that the applicant comes from a family in China who were underground Catholics, had been detained or had come to the attention of the authorities in China. The Tribunal does not accept that the applicant is a committed Catholic and therefore finds that if the applicant returned to China, he would not preach the gospel or become involved in underground activities which would endanger him and his family.
144. The Tribunal has considered the timeline of his migration history and lodgement of a protection application and considers he only started to attend church and was baptised to enhance his claim for protection.
145. The Tribunal does not accept that there was a delay in lodging his application for protection as he had never heard of a protection application. He mixes within his community, attends services in which his own community participate and needed an interpreter at the hearing. He was on a student visa for some years, had the assistance of a migration service, and mixed with members of his community. The Tribunal does not accept that he had never heard of a protection application when he first came to Australia and that that accounts for the delay.
146. The Tribunal as outlined above accepts that since the applicant lodged his application for protection, he has participated in church activities in Australia. The Tribunal notes he has participated in masses conducted in Chinese and attended services and other events with his countrymen in Australia. The Tribunal does not accept that if he returned to China, he would not be able to pursue any interest he may have in the spirituality of the Church.
147. The Tribunal discussed country information in relation to the agreement which the Vatican has entered into with authorities in China. The applicant could provide no persuasive response as to why he was opposed to the agreement between the Vatican and the authorities in China. The applicant claims he is attached to the Vatican and its teachings. If this is the case, they the applicant should accept the Vatican’s guidance in relation to attending churches in China and attend an official church.
148. With respect to the situation for Christians in Fujian, various sources have consistently reported that restrictions in Fujian are more relaxed compared to other provinces. DFAT states that, in general, ‘individuals in Fujian can practise religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party [CCP].’ DFAT further advises that the CCP is ‘largely indifferent’ to individual religious practice (although Party members are not permitted to follow any faith), but it does obstruct religious practice at an organisational level.
149. DFAT also states that its in-country contacts question the ‘validity of the “registered” and “unregistered” dichotomy, pointing out that members of a congregation will often move between the two.’ The treatment of unregistered churches varies greatly in Fujian (and across China), depending on the attitude of local authorities. In general, sources indicate that Fujian authorities tolerate unregistered churches who meet in small congregations.
150. There is no evidence before the Tribunal, other than the applicant’s claim he has converted a family member, which indicates that the applicant or the second named applicant are preaching or would engage in activities which would challenge the state authorities in China.
151. For reasons set out above, the Tribunal does not accept that the applicants or their respective family members were members of an underground Roman Catholic group in China. It does not accept that they, or their family members, suffered any detention, questioning or mistreatment for reasons of being a Roman Catholic, a member of a Catholic church or an underground Roman Catholic group in China.
152. The Tribunal does not accept that the reason he failed to make an application for protection until 2015 was because he did not know about Protection visas. He has demonstrated his resourcefulness in applying for and renewing student visas while in Australia, finding accommodation, finding work and schools for him and his family.
153. When it was put to the applicant at hearing that he could attend an official Roman Catholic Church the applicant responded that they are different he did not expand on the difference and when it was put to him that the Pope has stated that Roman Catholics in China should attend official churches, he did not respond except to say they are different.   The applicant did not expand on why they are different. The Tribunal does not accept that he has identified any plausible reason for not attending an authorised church.

154. The applicant provided links to articles on the suppression of underground churches and photos of underground leaders and churches being targeted. The Tribunal accepts that this can occur in China, however, as the Tribunal has found that the applicant or his family are not underground Christians or leaders of the church the Tribunal does not accept that he or his family will be subject to persecution.
155. The Tribunal considers that if the applicant returned to China and wished to continue with his Roman Catholic practice and he could join an authorised church in Fujian and continue his exploration of Roman Catholic practice within state sanctioned boundaries.
156. The applicant stated that third named applicant attended a Catholic School in Australia and has been baptised. The second and third named applicants have not made claims of their own. The Tribunal finds that if they return to China, they will be able to continue to have access to services and the third named applicant will be able to attend school and be registered. The Tribunal does not accept that being unable to attend a Catholic school in China will cause trauma or serious harm for religious reasons.
157. The Tribunal discussed with the applicant his original claims in relation to a breach of Family Planning Laws. The applicant accepted the recent country information that he and his family would not be at risk of any harm due to any breach of Family Planning laws. He would be able to register his children and would not suffer any serious harm.
158. As set out above, the Tribunal does not accept that the applicant has faced mistreatment for reasons of his religion in the past. The Tribunal is not satisfied that if returned to, or removed from Australia to China, the applicant will face a real chance of persecution for reasons of religion, breach of family planning laws or for any other Convention related reason.
Does the applicant meet the complementary protection criterion?
159. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
160. For reasons set out above, and in greater detail, the Tribunal does not accept that the applicants were at risk of harm due to being Roman Catholics in China, or that they or the family of the applicant were involved in any underground Roman Catholic group in China that was of any adverse interest to Chinese authorities for this reason.
161. The applicant claimed that his children will be traumatised if returned to China. The Tribunal accepts that his children have attended Catholic schools in Australia; however, the children are young and will be able to adapt to a school in China as many children who moved between countries are able to do. There is nothing before the Tribunal other than the applicant’s own assertion that they will be traumatised to indicate that this would happen.
162. If the applicants return to China the Tribunal considers they will return to Fujian Province, to the applicant’s home district. They will be supported by family and have the support of their village. They can continue religious instruction provided by their parents in their home. The Tribunal does not accept that they will suffer serious harm from being unable to attend a Catholic school or services while minors.
163. The Tribunal has considered the situation for Roman Catholic returnees to China. As discussed with the applicant at hearing, the country information indicates that China has “a rich and complex society of faiths, belief systems and organised religious groups.” The number of religious believers is estimated to be between 70 to 100 million.
164. The Tribunal has considered whether the applicants will face harm as a result of their involvement with the Catholic Church in Australia. The evidence indicates that the church is a relatively conventional Catholic Church in Sydney which has a large Chinese speaking congregation. There is no evidence it is designated as an illegal cult or prohibited organisation.
165. DFAT reports it is not aware of any evidence that failed asylum seekers returning to Fujian would be distinguishable from the broader community or susceptible to any form of discrimination or violence unless they were perceived to have openly expressed dissenting political views or criticised the Chinese Communist Party.[10]
166. The Tribunal accepts, as set out above, that the applicant may seek to join a Catholic church group in Fujian Province and, if he does so, then the Tribunal has considered whether he will face significant harm for this reason. The Tribunal has found that the applicant is not and never has been a member of an underground church, however, if the applicant attends an authorised church in China the Tribunal considers that he will not face a real risk of significant harm.
167. As set out earlier in this decision, the country information indicates that DFAT notes that should an unregistered church or individual engage in active and public proselytising or be perceived to criticise the Chinese Communist Party or the religious regulations, they may be exposed to negative attention by authorities. However, there is no evidence, other than the applicant’s own assertions, that he would engage in such activities.
168. While the Tribunal accepts that the practice of the Roman Catholic religion is regulated and subject to state control it considers that the applicants will be able to attend an official church, participate in the sacraments and practise religion if they should choose to do so on returning to China.
169. In relation to the claim that they will suffer due to a breach of the family planning regulations. The Tribunal notes, as set out above, that the applicant has withdrawn that claim and concedes his family will not suffer due to any breach of family planning laws.
170. CONCLUDING PARAGRAPHS
[10] DFAT Thematic Report China above n 1 [5.7].

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a Protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

172. The Tribunal affirms the decision not to grant the applicants Protection visas.
Catherine Carney-Orsborn
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.
…

[2023] AATA 4195

6 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies