2008988 (Refugee)

2008988 (Refugee) [2022] AATA 1074 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008988
COUNTRY OF REFERENCE:                   China
MEMBER:Christine Cody
DATE:1 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 March 2022 at 5:02pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – member of underground Christian group – fear of arrest – left China on own passport – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP (2016) 243 FCR 220
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

The applicant claims to be a citizen of the Peoples’ Republic of China (China). He arrived in Australia [in] November 2017 as the holder of a visitor visa.
The applicant lodged an application for a protection visa on 5 December 2017.
On 20 May 2020 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision. The relevant law is set out in Annexure A.
The Departmental file
The applicant submitted a protection visa application form as well as a copy of pages from his passport issued [in] 2013 (expiry [2023]).
Application form
According to his application form:
·     The applicant is aged [age] years. He was born in Taizhou, Jiangsu, China and does not have a right to reside in or enter any other country.
·     He can speak, read and write Mandarin.
·     He identifies as being part of the Han Chinese ethnic group and Christian religion.
·     He attended school from [year]–[year] in Taizhou.
·     His employment history is as follows:
o   July 2017 to 29 November 2017: unemployed
o   August 2015 to July 2017: part-time employment in private industry in [Country 1]
o   February 2011 to August 2015: [Occupation 1] in Taizhou, Jiangsu, China
o   August 2003 to January 2011: [Occupation 1] in Taizhou, Jiangsu, China
·     He has been married since [April] 2008. He has one [child]. His wife and child remain in China.
The reason he left for Australia was stated as follows:
I am a devout underground Christian. Through The lord teachings, i felt happy and made many Friends. I felt so lucky to become a Christian. The Jesus Christ taught me a lot. However, there is no Freedom of religious belief. Chinese communist Party combats all underground religious belief. Many of my church friends were caught during the underground gathering. They were cruelly Tortured and insulted in the detention centre.
The Police wanted to arrest me because they knew i am A devout underground christian. They continually Came to my home and harassed my family. For my Safety issue, i escaped china to australia with my Friend help. In Australia, i feel the freedom of Religious belief. I can believe in Jesus christ without Any restraints. I can give my everything to the lord. I Hope australia can help me to stick to my belief Without any restrains.
He did not move/ try to relocate because: “China is one-party dictatorship, it forbids the existence of underground Christian. There is no freedom of religious belief in china. No matter where I go, I will be harm the government”.
He fears that if he returns to China, he will be harmed/mistreated:
If i go back to china, i will definitely be arrested by the police. They will force me to give up my belief and torture me cruelly in the prison. I will not get protection because the local government will not protect me. Because China is one-party dictatorship, it requires total obedience. There is no freedom of religious belief in China.
He will not be able to relocate because:
the entire China is the same. There is no freedom of religious belief in the whole China. As an underground christian, i cannot survive in China.
The applicant was requested to attend an interview with the delegate on 27 April 2020 but did not attend.
The delegate’s decision
Accepting the applicant’s evidence for the purposes of undertaking an assessment, the delegate noted that the applicant did not claim to be a proselytizer nor a church leader, and he was able to leave China legally on his own passport. When considering the country information, this indicates that he has a low profile in China, is not of interest to and is not wanted by the Chinese authorities as a Christian or for any other reason. The delegate is not satisfied that the applicant would be targeted by the Chinese authorities based on his religion nor is the delegate satisfied that he would face a real chance of harm or a real risk of significant harm based on these claims.
There are no non-disclosure certificates on file.
The Tribunal
The applicant applied to the Tribunal for review, providing a copy of the delegate’s decision record and a copy of the identity page of his passport. He was requested to provide any relevant documents or information to the Tribunal as soon as possible. No documents were provided.
The Tribunal considered it was reasonable to conduct the hearing by telephone during the period of the COVID-19 pandemic restrictions in NSW in late 2021. The applicant was sent an invitation to attend a hearing on 6 December 2021 at 2:30 pm. He did not attend and the Tribunal decided to dismiss the application. Within the prescribed period to seek a reinstatement, the applicant contacted the Tribunal, asking for an update on his case, stating that he had changed his email address. The Tribunal noted that he had previously been informed that any change of contact detail should be immediately notified to the Tribunal, but he did not appear to have done so. Nevertheless, the Tribunal was prepared to consider this as a request for reinstatement, it accepted that the applicant applied for reinstatement of the application within the prescribed period, and that he sought to maintain his application for review. On 7 February 2022 the Tribunal reinstated his application for review and forwarded him a new invitation to attend a hearing on 23 February 2022. On that date, the applicant attended by telephone to present evidence and arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant told the Tribunal that he was comfortable and able to proceed. The Tribunal was satisfied that the applicant understood the proceedings and was able to give evidence and present arguments.
The Tribunal put to the applicant at the end of the hearing that, although it has not made up its mind, it has concerns with the credibility of his claims. Further relevant evidence is referred to below.
CONSIDERATION OF CLAIMS
Country of reference
The applicant produced a passport to the Department which shows that he is a Chinese citizen. The Tribunal accepts that the applicant is a national of China, and that the appropriate country of reference for the assessment of his refugee claims and the receiving country for the purposes of his complementary protection claims, is China.
The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the credibility of the applicant’s claims
Relevant law about claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that 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 the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
As Kirby J observed in Dranichnikov v MIMA:[1]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[2]
[1] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.
[2] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].
The Tribunal has a number of concerns with the case that this applicant has advanced, on the basis of his lack of ability to discuss matters relevant to his claims, and inconsistencies in his claims. The Tribunal’s concerns are set out below.
Firstly, the Tribunal had concerns that the applicant was unable to speak about his religion when given the opportunity to do so. His inability to do so was in contrast with the manner in which he gave other evidence. Thus, although the applicant was able to tell the Tribunal, without hesitation, about matters such as:
·     His work in Australia: he started work in December 2017. He has worked in [occupations]. He has worked fairly continuously the whole time he has been here; otherwise he would not have been able to support himself.
·     His family and where they lived: his parents have lived in the same home for 50-60 years, he had also lived there all of his life until he came to Australia. His wife had moved in when they got married. Since he has been in Australia, his wife stays with her parents and their son lives with his parents, they live close to each other.
·     His travel: he resided in [Country 1] on 3 occasions when he [worked], and when living there, he travelled once to [Country 2].
When the Tribunal asked him about his religion, he was unable to provide any real information:
·     The Tribunal asked when he first became a Christian and he said 2013. The Tribunal asked why he became a Christian, and he said, “Because I liked it”. The Tribunal asked why he liked it and there was silence. He then said, “I liked the thoughts”. The Tribunal asked, “what are the thoughts you liked?” and he was silent. He then said, “I don’t know how to say it but I liked it anyway”. The Tribunal asked him to try to say whatever he can say about it. He was silent, and then he said, “I don’t know how to say it, my education is limited”. The Tribunal noted that according to the application form, he is an [Occupation 1], which does not suggest that his education is limited. In response he said: “When I tried to come to Australia the travel agent tried to fill in the information because I wanted to escape from China”.
·     The Tribunal asked what he can tell it about Christianity. The applicant just repeated “Christianity” and didn’t say anything. The Tribunal noted that he was not saying anything and asked whether he can tell the Tribunal anything. In response the applicant said that he is not prepared and right now he can’t think of anything to say.
·     The Tribunal put to him that this causes concern as it may indicate that he did not become a Christian and he is not a Christian. In response he said that he is a Christian. The Tribunal asked if he could tell it anything about Christianity. He was silent and he then said that in Christianity he learned he could not be hurt by knife or guns. The Tribunal asked whether there was anything else he learned and he said no.
At the end of the hearing the Tribunal put to the applicant that his evidence did not appear to support that he was an underground Christian, because he can’t tell the Tribunal anything about Christianity. When asked if he wanted to comment, he said that he doesn’t know how to say anything about this. The Tribunal considers that the applicant’s inability to provide even some basic information about Christianity undermines his credibility and his claims.
Secondly, the Tribunal noted that the applicant has been in Australia since 2017, yet he had given no indication that he has engaged in Christian activities or meetings here. He told the Tribunal that he had done nothing else the whole time he was in Australia, he only worked and then went home to bed. The Tribunal put to him that he had not engaged in Christian activities here, with which he agreed, and he offered the explanation that this is because he doesn’t have any Christian friends here. The Tribunal does not find this to be a persuasive reason as to why the applicant, who claims to be a Christian, has not engaged in any Christian activity in Australia, whether alone (such as praying, reading the Bible) or with other people. The Tribunal notes that the applicant has been able to find accommodation, and a variety of different jobs while he has been in Australia. While conscious that people have their own interpretations and ways of worshipping, the applicant did not name, or claim to undertake, any Christian activity at all. The Tribunal considers that the applicant’s evidence undermines his credibility and his claims.
Thirdly, the Tribunal had concerns with the applicant’s evidence about the basis for his fears, namely his membership of an underground Christian group. When the Tribunal asked why the applicant was worried about going back to China, he responded that in China it is forbidden to join an underground religious group and he fears being arrested. The Tribunal asked why he thinks he would be arrested, and he said because his friend told him, after having been detained and then released, that the Chinese police have his name on a list. This was in around September or October 2017.
When the Tribunal asked what else he knew, he said that his friends said he better leave China for some time because the Chinese police are after him. He said his friend was arrested because he attended a religious group. When the Tribunal asked if the applicant attended that religious group, he said yes, every week and sometimes every few days. However, when the Tribunal asked the applicant what they talked about at the religious group, he said “all kinds of different things”. When the Tribunal asked him to be specific, he said “we just talked about how to attract more people to the group”. The Tribunal asked if anything else occurred when he was at the religious group and he said work (like window installing). The Tribunal put to him that the group does not sound like an underground Christian group, as it is not doing anything Christian. The applicant was silent and when the Tribunal asked if he wanted to say anything, he said that they were an underground religious group. The Tribunal asked him to tell it what they did that was religious, and he was silent. When the Tribunal noted that he was silent, he remained silent. The Tribunal considers that the applicant’s evidence undermines his credibility and his claims.
Finally, the Tribunal’s concerns with the applicant’s claims were heightened when the applicant gave evidence inconsistent with his application form, noting that he had told the Tribunal that his form was true and correct:
· When the Tribunal asked whether his family had any problems in China, he responded no, they won’t get into trouble. The Tribunal asked whether they had any problems before he came to Australia, and he said no. The Tribunal then put to him the claim in his application form that his family was harassed. His only response was “no, I didn’t say”.
· When the applicant offered a new reason as to why he did not seek to return to China (namely that he wanted to stay here to earn money to pay off a debt), the Tribunal’s questions led to the applicant giving evidence that he had borrowed [Amount 1]RMB from a friend to inject into his business that he had been operating in China before he came, from about July to November 2017. The Tribunal put to him that his application form indicated, to the contrary, that he was unemployed in China during that period. In response the applicant was silent, and then said, “I didn’t know about this”.
The Tribunal would expect that he would be able to explain these inconsistencies, and his inability to do so undermines his credibility and claims.
On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to his claims of past harm and future fears.
Other matters
The Tribunal has considered whether the applicant could have been nervous at hearing, however, even allowing for this, the Tribunal does not accept that this can explain the difficulties in his evidence.
The applicant said that the authorities wanted to arrest him in about September or October 2017. The Tribunal put to him that according to his application form, he left China legally, using his own passport. If they had wanted to arrest him they could have found him and done so.[3] He then said that, actually, he was not sure his name was on the list, his friend told him he thought it was. While the Tribunal considers that the applicant’s ability to depart China indicates that he was not of interest to the authorities, the Tribunal accepts that, if the applicant was on a list, there could be many reasons why he was not stopped when leaving the country. The Tribunal has decided not to place adverse weight on his ability to leave the country.
[3] The Tribunal notes that country information in the DFAT reports from 2017, 2019 and 2021 indicates that the authorities strictly regulate exit and entry, although the Tribunal does accept that this does not mean that every member of an underground church would be on a list and prevented from leaving the country for that reason: see Annexure B.
Findings as to the applicant’s claims
At the end of the hearing the Tribunal put to the applicant that it may not accept that he is a Christian or that anyone seeks to harm him for that reason. The applicant was silent and when asked if he wanted to comment, he said no. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant was an underground Christian in China or that he joined an underground group. It does not accept any claims that flow from this including that people from his underground group were arrested, that the authorities sought to arrest the applicant, that his family were harassed, that he feared harm, or that he was told or believed that his name was on any list. It does not accept that the applicant came to Australia to escape any harm or adverse interest in China or because he was wanted by government agencies in connection with his religion/activities. The Tribunal does not accept that there has been any adverse interest in the applicant since he came to Australia.

The Tribunal does not accept the applicant’s claims of past religious involvement and it does not accept that there is a real chance or real risk of the applicant having an interest in or becoming involved in any way in religion in China nor of being imputed with such involvement leading to adverse interest and/or a real chance of serious harm or a real risk of significant harm in China. The Tribunal does not accept that the applicant is a Christian and it considers that the applicant has made up his claims.
As noted above, the applicant claimed that he wanted to stay longer in Australia so he could make money to pay back a debt. He said that he borrowed [Amount 1]RMB from a friend in July 2017; he has only paid off [Amount 2]RMB to date. He said that he used the money for his business in China. The Tribunal asked what the friend had said to him and he said his friend had asked him to pay it back as soon as possible. When asked if his friend said anything else, he said no. The applicant did not claim that he faces any harm from his friend; and his evidence did not indicate that he faces a real chance of serious harm or a real risk of significant harm. The Tribunal said that he could return to China and work and continue paying off the debt, and asked if he wanted to comment and he said no. The Tribunal had put to the applicant its concerns with his evidence generally and had said that it may not accept that he has such a debt. The applicant did not respond to this. As a result of the Tribunal’s adverse credibility finding, the Tribunal does not accept that the applicant has such a debt.
The applicant said his only other reason for not wanting to return to China is that he likes Australia. The Tribunal accepts that this may be the case, but this does not mean that he satisfies the requirements to be recognised as a refugee or entitled to complementary protection.
On the evidence before it, the Tribunal does not accept that the applicant faces harm for any reason including actual or imputed religious belief/involvement.
The Tribunal noted that it is required to have regard to the Department of Foreign Affairs and Trade (DFAT) Report which provides information as to the country conditions in China. The Tribunal put to the applicant that if it did not accept his claims, then having regard to the country conditions it did not appear that he faces a real chance of serious harm or a real risk of significant harm. The applicant said, “I understand”.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal has not accepted the applicant’s claims as to past interest and involvement in religion or specifically in an underground church. The Tribunal does not accept that the applicant has experienced any adverse interest or harm as claimed nor that his family were harassed because of him. It does not accept that he is a Christian nor that he would be imputed to be a Christian. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any reason including religion.
The Tribunal does not accept that the applicant has the profile or involvement as claimed. It thus does not accept that he has or will come to the adverse attention of authorities for such reasons, nor is it satisfied that the applicant seeks to or would like to engage in the expression of religion. The Tribunal has not accepted that he has a debt as claimed. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that he faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A
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–5LA, which are extracted below.
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 below.
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.
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.
…
ANNEXURE B
Extract from 2021 DFAT Report
5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
5.32 National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.
5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.
5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.
Extract from 2017 DFAT Report
Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports… an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.

[2022] AATA 1074

1 March 2022

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