2105884 (Refugee)

[2022] AATA 2530

2105884 (Refugee) [2022] AATA 2530 (13 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105884

COUNTRY OF REFERENCE:                   China

MEMBER:Alan McMurran

DATE:13 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 June 2022 at 11:26am

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Christianity – member of ‘true’ Roman Catholic church – detained, interrogated, beaten and warned – credibility – false information provided in previous visitor visa application – vague claims and non-responsive oral evidence – low-level member, limited knowledge, attendance and activity and no supporting evidence – no harm to family remaining in home area – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 197 CLR 559
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
SZFYW v MIAC [2008] FCA 1259

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

1. This is an application lodged 4 February 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 20 July 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).

3. The Department refused the application on 15 January 2019 and the applicant’s review application was heard in the Tribunal on 24 November 2020. The Department decision was affirmed by the Tribunal, differently constituted. The applicant appealed to the Federal Circuit Court (“the court”), and the application was remitted by consent to the Tribunal on 28 April 2021.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Procedural history

5. The matter is now before the Tribunal, differently constituted, pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). The application was further constituted for review in March 2022.

6. The applicant appeared before the Tribunal in a telephone hearing on 7 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant gave evidence in relation to his background, claims for protection, his conduct in Australia and other relevant matters.

7. The court had set aside the Tribunal decision for reason that the court found that, in its assessment, the Tribunal had not considered all claims expressly made by the applicant and as set out in his personal statement.

8. The court notes that the Tribunal is yet to consider the applicant’s claims that he would only attend “true” Catholic churches in China, that he had continued attending Catholic churches while in Australia, and that his wife had continued attending secret Catholic Church meetings in China.

9. The Tribunal explained the reasons for remittal and consideration and indicated that the evidence given to the Tribunal differently constituted at hearing in November 2020[1], and to the Department in a record of interview in January 2019[2], could be taken into account in the review. The Tribunal explained that it had access to that Department information, including the applicant’s migration history.

   [1] Tribunal case 1902494

   [2] Department file no [Number] relating to Tribunal case 1902494, made 11 January 2019

10. The applicant was represented in relation to the review by his registered migration agent, who also attended the telephone hearing.

11. At the end of the hearing, the applicant was offered time to respond to concerns raised in the hearing by the Tribunal, but he did not request time in order to do so and confirmed he had provided what he wanted to provide and had nothing further to offer for consideration.

    What information can be considered on remittal?

12. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[3] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[4] 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.

    [3] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [4] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

13. 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.[5]

    [5] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.

14. In doing so, however, the Tribunal must consider all the available information afresh and make its own decision as it determines according to the information and may accept or reject any earlier findings and provide its reasons. The reconstituted tribunal is not bound by the findings of fact of the previous tribunal.[6]

    [6] SZFYW v MIAC [2008] FCA 1259 per Flick J at [9].

15. In conducting the review, the Tribunal has considered afresh the material provided to the Tribunal, completed a further hearing, and listened to the oral evidence given at the previous hearing held by the Tribunal on 24 November 2020, differently constituted, and to the record of interview given to the Department officer and delegate on 11 January 2019.

16. The applicant has confirmed that what he said on those occasions was correct.

    What information and documents are relied upon by the applicant?

17. The applicant made an application for protection lodged with the Department on 20 July 2017. In the department Form 866, under the heading reasons for claiming protection, the applicant relies upon information provided in his separate statement lodged with the application. It is from this statement that the court found not all claims had been considered by the Tribunal, so it is useful to set out the statement in full.

18. The applicant’s statement made 9 July 2017 sets out the following:

    Statement of [the applicant] 

    My name is [the applicant]. I was born on [Date 1]. I came from [Village 1], [Town 1], Fuqing City, Fujian Province, China. I arrived in Australia on my own passport [in] 05/2017 in order to seek protection.

    After I graduated from junior middle school, I started my career as [an Occupation] apprentice. I have worked as [an Occupation] by trade ever since.

    In December 2002, I got married to my wife, [Ms A]. On [Date 2], our daughter ([Ms B]) was born. On [Date 3], our son ([Master C]) was born. My wife was forcibly sterilised by the local government about one month after our son was born. We were also forced to pay a five thousand yuan fine as so-called social maintenance fee.

    In about October 2014, my wife befriended with a woman, named [Ms D], from our neighbouring village. Her son and our son were classmates and good friends at our local primary school. She is a Roman Catholic. She preached to my wife and my wife began to follow Roman Catholicism. In the summer of the following year (2015), my wife was baptised and became a Roman Catholic.

    After my wife become a Catholic, she had been attending religious activities secretly in church friends' homes in surrounding villages. I didn't quite understand that in the beginning because I thought that they're supposed to attend the official church in the township. My wife told me that Roman Catholics have a supreme spiritual leader, the Pope, who is a foreigner. In order to have absolute control on Chinese Catholics, the Chinese Government established the official Catholic Church, which was not truly established by God.

    My wife also persuaded me to convert to Catholicism. I could feel that she got a lot better with her temper and mood. Because my birthplace is close to a Shaolin Temple and I had followed the Buddhism religion with my parents since birth, I didn't have any interest in my wife's persuasions. I also objected her to follow Catholicism because I thought that it was a foreigner's religion and it was illegal in China. Both of us had argued about these two faiths trying to convince each other to believe in the opposite.

    In order to let me to have a detailed understanding of Roman Catholicism, my wife gave me a book, titled: Catholic Youth Catechism. For the sake of having an agreed religious faith in our family, I accepted and started reading it because I hoped that I could be in a better position to convince her to give up the Catholicism faith after I've equipped myself with some knowledge of Catholicism. Sometimes, I would carry it with me and read through it during break times at work.

    One day in December 2015, while I was operating a [machine], due to an operating error, my sleeve got caught in the [machine part]. Because of the huge impact force, the [machine part] flew towards my chest, close to my heart. Fortunately, the [machine part] didn't reach my chest because it cut onto the Book (Catholic Youth Catechism) in my pocket before it came to a stop by others at the scene cutting off the power supply. I was bleeding heavily in the arm and was sent to hospital. The doctors said that I was a really lucky man because it would be hard to imagine what could happen if it reached my heart. That incident changed my life and I began to believe in Catholicism because I believe that it is God's miracle on me. Before that, I always said to my wife that I would never believe in Catholicism unless God gave me a miracle.

    I began studying Catholicism. On the journey of understanding more and deeper about Catholicism, I was gradually filled with admiration by the supreme love from Lord Jesus and accepted Roman Catholicism eventually. I feel I have found the most powerful reliance: Lord Jesus Christ because He is the way, truth and life.

    Following the arrangements by the underground Church, I and my two children were all baptised in a church member's home in [Town 2] [in] 08/2016. After becoming a Catholic, many aspects of my understandings on life's outlook have differed and I gained a clearer direction for life.

    On 29/01/2017, I attended a spiritual retreat programme secretly organised by the underground Church. It was held in a Church brother's home in [Village 2]. In the morning of the second day (Jan 3Oth), at around 10 am, eight police officers surrounded our gathering place. At that time, we were praying in silent led by a nun. The Police said that we were holding an illegal gathering. All the attendees, totalling 36 including me, were taken to [Town 1] Police Station. Every one was interrogated. The police asked me when I started attending underground Church; who evangelised to me; who organised this activity and who is the responsible person; how we (underground church members) communicated with each other; who is the underground priest and his residential address. I didn't answer their questions and I only prayed to God silently in my heart. Because I kept a tight mouth, they slapped me on the face constantly. After about one hour, they locked me into a detention cell, which also held five other criminals, who were incited by police to beat and kick me. At around 6 pm in the evening, I was released after my wife came and paid three thousand yuan fine. Before I was released, the police warned me not to attend illegal gatherings organised by the underground Catholic Church any more, otherwise I will be sent to the detention centre if I was caught by them next time.

    After I was released, I lived under fear. I will not go to attend the Patriotic Catholic official Church, established by Chinese Government, because the Chinese Communist Party itself is an atheist Party. I felt that there wasn't religious freedom in China, so I decided to go abroad to seek religious freedom. Under the assistance from church friends, I contacted a tourist agent and obtain an Australian visa through him.

    After I arrived in Australia [in] 05/2017, I have been attending the Sunday Mass, organised by [a] Chinese Catholic Community, in [Suburb]. If I return to China, I will keep attending the underground Church although I fear that I will be arrested again by the police if I continue attending the underground Church. I hope the Australian government can allow me to stay in this country with religious freedom to live my Roman Catholicism faith without any fear.

19. The applicant’s statement was typed for him in English. He said a friend helped him but he had prepared it himself, and [Mr E], his legal representative, had translated it for him. He said that his protection application was also completed by his representative on his (the applicant’s) instructions.

20. The applicant provided a copy of his Chinese passport. There was no other information produced to the Department, or the previous tribunal, or for this tribunal. Other than the written statement set out above, the applicant relies entirely upon his oral evidence.

21. The Tribunal asked the applicant if he was ready to proceed for the telephone hearing or whether he required an adjournment. He said he had nothing else to provide.  The applicant confirmed he was ready to proceed and wanted the matter to continue without further delay.

    Nationality

22. The applicant claims he was born and raised in China and is a citizen of the Peoples’ Republic of China. He has provided copies of his Chinese passport. He has consistently claimed that he is of Chinese nationality, appears to speak Mandarin fluently and confirmed his statement contains correct information as to his birthplace and where he claims to have lived.

23. It is accepted that the applicant is a national of the Republic of China on the basis of his Chinese passport submitted to the Department with his biometric record, and his oral evidence, and the Tribunal will assess the applicant’s claims on that basis.

24. The Tribunal further accepts that the applicant does not have the right to reside in any country other than China. The Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act, and China is the receiving country for the applicant for the purposes of s 36(2)(aa).

    CRITERIA FOR A PROTECTION VISA

    Refugee

25. 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.

26. 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 description of the relevant law, copied from the  legislation, is set out in the attachment to these reasons. In summary, 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.

27. A person is a refugee if, in the case of a person such as the applicant, 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). The notion of a ‘real chance’ of persecution involves a threshold of the likelihood of an event occurring in the future.

28. The term ‘real chance’ is not defined in the Act. Guidance however is provided in the leading decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (“Chan”).[7] The concept was explained by the High Court in Chan as a substantial chance as distinct from a remote or far-fetched possibility, which nonetheless, may be well below a 50% chance. The term excludes far-fetched possibilities or outcomes based on conjecture or surmise.

    [7] Chan v MIEA (1989) 169 CLR 379

29. 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.

30. 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 not a refugee

31. 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’).

32. 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 also extracted in the attachment to this decision. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

33. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

1. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[8]

   [8] (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

   The Issue

2. The issue in this case is whether the applicant meets the refugee criterion, because of a well-founded fear of persecution.

3. The persecution must involve ‘serious harm’ to the applicant, as described above, and where there is a real chance of the serious harm occurring.

4. If the applicant is not a refugee, the Tribunal must consider whether there are substantial grounds for believing that the applicant meets the complementary protection criterion, and that there is a ‘real risk’ that the applicant will suffer ‘significant harm’[9].

   [9] ss 36(2A) and (2B), which are extracted in the attachment.

5. The Tribunal has had regard to the Act and Regulations, including the extracts set out in the attachment, Department policy, relevant country information, and the application information with the typed statement, and the oral evidence, as referred to below.

   Mandatory considerations

6. 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

   Background

7. The applicant is a [Age]-year-old married citizen of the People’s Republic of China. He has a wife and 2 teenage children living in China in Fujian province. The family were practicing Buddhists until 2015 when the applicant’s wife converted to Christianity, and adopted Roman Catholicism.

8. The applicant arrived in Australia on a visitor visa [in] May 2017 and made application to the Department for a protection visa on 20 July 2017.

9. The applicant attended a telephone interview with his representative and a Department officer on 11 January 2019. The Tribunal has listened to that interview. The applicant has confirmed that what he said in that interview was correct.

   First Tribunal hearing – 24 November 2020

10. The applicant attended a tribunal hearing, differently constituted, where the Tribunal found that although the applicant has a subjective fear of persecution arising from a single incident with Police, the applicant’s fear was not well-founded, based on ‘one particular incident’, and that there was no real risk of significant harm were the applicant to return to China.

11. The Tribunal further found that the applicant did not meet the complementary protection criteria, due to the practical reality of the number of practicing Catholics throughout China.

    The Second Tribunal hearing – 7 June 2022

12. The hearing was conducted by telephone on 7 June 2022, which the Tribunal determined was the most efficient and practical way to conduct the matter and in accordance with the Tribunal’s current Practice Direction. An interpreter in the English to Mandarin language was also present. The applicant’s representative, [Mr E], was also in attendance.

13. The Tribunal explained to the applicant the reasons for the remittal and that it was a fresh review, but that in doing so the Tribunal was continuing proceedings and was not required to review all of the evidence not disputed previously.

14. Where the Tribunal refers below in quotations to comments from the applicant, they are in accordance with words to that effect from the hearing, and may be literal, or as best as could be recorded without editing or correction, but without a transcript.

    Information provided to the Department

15. The Tribunal began by asking the applicant about the recorded interview and whether he had provided false information to the Department with his earlier visitor visa application.

16. The applicant responded that “I can’t go back to China”, which was not responsive to the question. When asked the same question again, the applicant said that he could not explain why the agent had provided false information and said: “I know nothing about what the agent did”. This was consistent with the applicant’s earlier responses to the Department.

17. The Tribunal put the applicant on notice that the Tribunal must accept him as a truthful witness, and if not, that may be a reason for affirming the decision under review, if the Tribunal was unable to accept what he was saying because he had provided incorrect information to the Department and which may affect his credibility. He was asked to explain the background to that application.

18. The applicant responded that he had “left everything to the agent”, being the applicant’s agent retained in China, and not his Australian representative. He did not know what was said at the time by the Chinese agent but said what he was telling now was the truth.

19. The Tribunal asked if the applicant had provided everything to the Department he wanted made available for the protection application to proceed, and for the tribunal hearing. The respondent confirmed that was the case.

20. The Tribunal explained to the applicant it had to determine the issue of whether the applicant faced serious harm if he returned to China on the basis of a well-founded fear of persecution because of his religious belief. He was asked what he feared if he was returned to China.

21. The applicant responded that “because when I go back to China I will definitely attend the Roman Catholic Church again. If I attend, I am afraid I will be caught by the police again and go back to jail”.

    Claim of Christianity

22. The Tribunal asked if by ‘jail’ he was referring to his statement, and the occasion of his arrest in January 2017. The applicant confirmed he had been detained “just once when I attended a gathering”. He was asked when he had last attended church anywhere. He said in Australia he originally went to [Suburb] church, but due to the pandemic he had not been for 1 or 2 years. He was asked how he practised his religion in that time in Australia.

23. He responded: “Because I often go to [Suburb]”. He was asked again how he practised his religion in Australia, during the pandemic. He said that sometimes he prays at home, “in silence”. The Tribunal asked if he had watched or listened to any broadcast religious services. He said sometimes he listened on the radio or read a book. He said sometimes he listened to television on his mobile phone. He was asked when he had last done that and he responded, “last week”. When asked what he had heard, he said “a TV program about Jesus”.

24. He said he listened to a service in Mandarin but could not remember who provided the service. He said he did not check. When asked about what it said about Jesus, he said it was “talking about Jesus preaching religion” and in other countries. He said it was a Roman Catholic service but he could not say from which church. He said the broadcast went for approximately 1 hour and he listened to the whole service in Mandarin. He was asked what else took place during the service and he said it was “how Jesus was nailed onto the cross” and how Jesus was “born by Maria, grew up, and go and teach religion”.

25. The Tribunal asked when the applicant had last attended a Roman Catholic mass, and he responded, “1 or 2 years ago”. He was asked what happened during the mass and he said people went inside the church and pray in silence and there was “chanting”. He said when the service is finished people go outside and “shake each other’s hands”. He said the service he attended was at [Suburb] and was in Mandarin, as the congregation was entirely Chinese.

26. The Tribunal asked when the applicant last had communion and he responded again 1 or 2 years ago. When asked what happened he said, “nothing happened” and when asked again responded “that’s right, nothing happened”.

27. The applicant was asked if he was baptised and he said he was baptised in [Town 2] county in China. He said at first that it was in a church, but then corrected himself and said it was in a private home in a “church brother’s house”. He said there were 10 other people present. He made no mention of his children attending and being baptised as well. He said he did not receive a baptism certificate as that is “not done in China”. He said the church is secret, it is illegal, and they are afraid the police will find out, and that is why there was no certificate of baptism. In fact, the applicant said, “in my region no one received a baptism certificate”.

28. He was asked about his church attendance in China. The applicant said he attended church every Sunday in China, but at different villages. He said there were 3 or 4 other villages within 5 to 6 km of his village home, and they “moved around”.

    Applicant’s supporting statement

29. The applicant was asked about the statement lodged with the Department which he made on 9 July 2017. He confirmed he had prepared the statement himself and that a friend helped him, and that his Australian lawyer had translated the statement for him.

30. The Tribunal asked what the applicant meant when he said in the statement “I began studying Catholicism”. The applicant said to him studying means “I attended Roman Catholics”. He was asked who had taught him about ‘Roman Catholics’ and he said, “I taught myself” and believed that “human beings understand”. He said in China that other church members had helped him to understand and learn about being a Catholic. He did not refer to any help in Australia but said that his wife had helped him in China.

31. When asked what she did, he said “my wife always talk about religion in front of me”. He was asked whether he wanted to say anything else about studying Catholicism and he said, “I don’t know” and had nothing further to add. He said his wife still practices as a Roman Catholic and follows the leadership of the person from the next village which he named as [village 2]. This is the same village to which the applicant had referred in his interview with the Department and which is a neighbouring village to where the applicant grew up and was living. He said there are about 20 other Catholics in that village.

32. The applicant was asked if his wife had ever been arrested. He said ‘no’, and that she had not been directly threatened by police, although she had heard from a friend that police did not want her to attend meetings. He said nonetheless she still attends and that he had spoken to her as recently as “last Sunday”.

33. When asked what they had spoken about he said she had told him “do not worry about home, just look after yourself”. He said he told her he was afraid she will be arrested by police and to be careful. He said she told him she had attended church that Sunday before he called her. He was asked if she had been in trouble or arrested which she denied, and said she goes to church in the next village ([Village 2]), which is the same place they had always been to when he was in China. He said there has been no trouble and she has not been arrested while going there.

34. The Tribunal asked about the applicant’s occasion when he was arrested. He said he had been praying in silence with about 30 other people in a brother’s home. He said it was also in [village 2]. He said someone must have reported them for having an illegal gathering because the police found out and attended. He said usually there are 20 or sometimes 30 people who attend and on this occasion there were 36 people who were arrested. He said he had initially found out about the gathering from a friend of his wife, someone they both knew, before he attended.

35. The applicant was asked if he went back to China if he would attend the same underground church gathering.

36. He said he would continue to do so but was afraid the police will come again to arrest them. He was asked what harm might come to him and said they might interrogate him, or beat him, if he refused to say who was the priest or who were the leaders. He was asked why he would not tell the police, and he said because they do not know and he would not tell. He was asked what his wife would say about it and he said she would say they have to be careful. He was asked if he was ‘careful’, whether he would be all right, which he agreed. But he would still be thinking all the time there was a risk the police would come. This was so, and he believed it could happen, even though acknowledging nothing had happened for more than 5 years since the one time he was arrested. His wife had been practicing for a couple of years before that, since 2015. He agreed this was because people in China were “careful”.

37. The Tribunal suggested he could continue to be careful if he were back in China which he agreed but said “there are a lot of things uncertain and I am not sure when police might turn up”.

    Country/state protection

38. The applicant was asked if he understood how the Communist Party dealt with religion in China. He responded that the CCP only accepted the government church which was not a church established by God.

39. When asked, the applicant said he had never heard of the Chinese Catholic Patriotic Association (CCPA) and responding, said that “I’m not interested in that”, meaning the CCPA. He said he did not know about it and could not say anything about it other than that it was not a church established by God.

40. He was asked why he would not attend a legal Catholic Church as part of the CCPA. The applicant said he believed it was not a real church. He was asked to describe the difference. He was unable to do so. The Tribunal suggested that the difference might be who was in control of the church, rather than not having belief in God, and asked the applicant if that made any difference to his personal belief. He insisted the CCPA is not the Roman Catholic Church as it was not established by God, and he was not interested. He believed that the true ‘Roman Catholic Church’ is an underground church. He was asked if he had heard of the Vatican, which he described as a country controlled by St Francis. He did not mention the Pope but agreed authority for the Roman Catholic Church came from the Vatican and not from the CCP.

41. The Tribunal put to the applicant there are many thousands of Chinese throughout the country who practice in underground churches and who get left alone, provided they do not have a high profile and are not active in church leadership. The applicant was asked to respond. He said whenever his wife goes to church she is on “high alert”, but nothing has happened to her because she is “careful”.

42. The applicant believes his wife does not tell him everything because she does not want to worry him. But he said if he goes back to China, he will still attend an underground Roman Catholic Church and not join a patriotic church congregation, even though it was safe to do so. He said he and his wife would continue to be careful. He described the true Roman Catholic Church means “having a blessing” and with the promise of “a happy afterlife”.

43. The Tribunal asked the applicant if he had been to church last Sunday before the hearing. He said he could not go because of the pandemic.

44. The Tribunal reminded him there had been no restrictions about attending services in Sydney for some months, notwithstanding the pandemic, and it was possible for him to go back to church. He maintained however he could not “because of the pandemic”.

45. He said this was the reason he had not been to church for the last 2 years.

    424AA issues

46. The Tribunal put to the applicant a number of issues which it said the Tribunal considers would be the reason or a part of the reason for affirming the Department decision under review and asked the applicant to respond.

47. Firstly, the Tribunal said that the applicant had not provided any objective material to support his claim that he was a Roman Catholic. He had not provided any baptism certificate nor any evidence from any of his attending congregation at [Suburb] of his membership of that congregation. The applicant maintained that “I am baptised”, and that he had not sought support from the congregation because “I don’t know the priest”.

48. Secondly, the Tribunal suggested to the applicant that he did not appear to have studied about the Roman Catholic religion or Christianity at all, and that he was not in fact a practising Christian. The applicant said he had nothing to say in response.

49. Thirdly, the Tribunal suggested to the applicant that even if he would continue to attend an illegal or underground church with his wife, there was very little chance of again being arrested, as they were both careful, there had only been one incident in 7 years, and that was 5 years ago, and nothing had happened since. It was suggested to him that there was no real chance of him being harmed for that reason.

50. The applicant responded: “I will continue to attend a Roman Catholic Church and we will always be on high alert”. The Tribunal understood the response to mean, as set out in the applicant’s statement of 9 July 2017, that he fears he will be arrested again by police if he continues to attend an underground church in China.

51. Fourthly, that the applicant’s wife had practised her religion continuously for the past 5 years in China, since his departure, in the same village with the same people without being arrested, harassed, or threatened by police and that was not an indication of any real risk of harm occurring should he return to that situation. The applicant responded that it was “just luck” that his wife had not been arrested, because “no one has dobbed anyone in”.

52. Finally, the Tribunal put to the applicant that it may have difficulty accepting some of his answers, because he was not responsive, and which may affect his credibility by not telling the truth and not being forthcoming in answering questions. The Tribunal put to him that if it could not accept what he was saying was truthful, then it may not be able to find that he had a well-founded fear of being persecuted for reason of religion, if returned to China or anywhere in that country.

53. He said that everything he had told the Tribunal and to the Department (in the interview) was the truth, and that he was afraid to return because he might be arrested if he practised his Christianity in an underground church.

    Family issues

54. The applicant was asked about his family on his return to China.

55. He said he did not want to return and wanted the Australian government to bring his family to Australia because if he attended church in China he will be arrested, and Australia has freedom of religion.

56. He said his wife sometimes does casual work in a [Product] factory making [Products] to support herself. He said he also sends her money, about $5000-$6000 per month. He said he has found casual work himself, sometimes [Job task], sometimes doing [Occupation]. He said the work is not regular but he earns on average about $1000 per week. He said he rents a room for about $160 per week and lives alone. When asked about seeing his family again he repeated he wants the Australian government to bring them to Australia.

57. The Tribunal put to the applicant that the information available to the Australian government[10] says there is a low risk of harassment for active Christian church members, of whom there are many thousands in China, if they are low profile, and not active in leadership, and can practice discreetly. This description seemed to meet the applicant’s profile and that he would be unlikely to be arrested in those circumstances. The Tribunal explained it could understand the applicant might be afraid after having been arrested on one occasion, but the real risk of that occurring again seemed to be quite low.

    [10] DFAT Country information report China- 22 December 2021 (“the DFAT report”).

1. In response, the applicant said he had been warned on that one occasion, and that it still might happen, even though his wife has been safe for a lengthy period while continuing to practice her Christianity, and that he is still afraid. He said his children also practice as Christians but agreed nothing has happened to them either.

2. The Tribunal asked if the applicant wanted further time to consider his responses or put any further information to the Tribunal. The applicant said he had nothing further to say or add. The applicant’s representative was asked whether he required any time to consider anything further or make submissions, and to respond after the hearing, which he did not request. He agreed with [the applicant] there was nothing further to add. At the end of the hearing, the interpreter confirmed with the applicant that he had understood her translations and he had no complaint in that regard. 

   Country information

3. The Tribunal places some significant weight on the DFAT Report which notes relevantly:

   The purpose and scope of the report is to provide a general, rather than an exhaustive, country overview. It has been prepared with regard to the current caseload for decision makers in Australia without reference to individual applications for protection visas. The report does not contain policy guidance for decision makers.

   Ministerial Direction Number 84 of 24 June 2019, issued under s 499 of the Migration Act (1958), states that:

   Where the Department of Foreign Affairs and Trade has prepared [a] country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

   Religion

   Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.

   Christians

   Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.

   Authorities have regulated Christianity to make it more ‘China-orientated’. Bibles are increasingly difficult to obtain, and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media but have not been implemented at the time of writing. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.

   Consistent with Yang’s theory of the three markets, many ‘grey-market’ churches have operated relatively openly for many years. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.

   In a 2018 report, the Pew Research Centre ranked social hostility to people of different religions as low in mainland China, much lower than in Australia. Similarly, low scores on hostility are found in other parts of East Asia. DFAT does not rule out the possibility of isolated societal discrimination. For example, a Christian may miss out on job opportunities based on fear that they will proselytise to clients and attract adverse government attention, but DFAT is not aware of incidents.

   Catholics[11]

   The Chinese Catholic Patriotic Association (CCPA) represents the official Chinese Catholic Church. Globally, matters of Catholic doctrine, ecclesiastical law and the appointment of leaders (bishops) are usually controlled by the Catholic hierarchy, headquartered in the Vatican. The CCPA does not recognise the authority of the Vatican. In the past, the Vatican has had some input into the selection of bishops but a number of Vatican-approved bishops also operate ‘underground’, separate from the CCPA. For some Chinese Catholics, allegiance to the Vatican Catholic Church hierarchy is an important part of faith because of their belief in a succession of authority that can be traced back to St Peter, a contemporary of Jesus. For those Catholics, Party-appointed priests and bishops are unable to validly confer sacraments that are central to their beliefs. On this basis they refuse to participate in religious activities associated with the CCPA.

   In 2018, the Vatican and Beijing signed an agreement that would regularise the status of some Chinese-appointed bishops so they would be viewed as valid by the Vatican. In return, those ‘underground’ Catholic churches would join the CCPA. Most of the details of the deal are not known. The deal was extended in October 2020 for a further two years, allowing for more bishops to be recognised.

   In spite of the deal, reports of a crackdown on Catholics as part of a wider campaign to sinicise religion continue. Underground priests who were demoted from the position of bishop as part of the deal are pressured to join the CCPA, according to various media reports. Some media reports say that underground priests had experienced torture and disappearance if they resisted. Fujian, a traditional stronghold for Catholicism and underground Catholicism in particular, has seen particular efforts to convert underground bishops.

   The numbers of CCPA versus underground Catholics are not clear. Cardinal Zen, formerly Archbishop of Hong Kong and a vocal critic of the Chinese Government, has claimed in media reports the ‘underground community’ has ‘practically disappeared’ because of pressure on underground bishops. DFAT is unable to verify this claim.

   DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination

   [11] DFAT report pars 3.36-3.40

4. The Tribunal concludes from the available country information that:

   a.    It is more difficult to practice as a Roman Catholic in an underground church in China, which requires discretion in order to avoid harassment, detention, or arrest and punishment, than to ‘accept’ the CCPA as the official church

   b.    Some church leaders will be under pressure to join the CCPA or face harassment or worse

   c.     Ordinary congregants are largely left alone, so long as they do not politicise their religion or are activists who may attract attention and be discriminated against

   d.    There are very large numbers of ordinary congregants who continue to practice Roman Catholicism outside the CCPA and who are at low risk of persecution

   Assessment and analysis

5. The Tribunal finds the following facts, based on the available information.

6. Firstly, the Tribunal can accept that the applicant has been introduced to Christianity by his wife in 2015/16. But the Tribunal does not accept that the applicant has been formally baptised into the Roman Catholic church, either in China or in Australia. The Tribunal does not accept that the applicant has regularly practiced as a Roman Catholic in Australia.

7. Secondly, the Tribunal can accept that the applicant has attended an underground church in China with his wife and family for a very short period from about August 2016 until May 2017, although the details of how often and in what circumstances such as participants and meeting content has not been revealed. The Tribunal accepts however, that any attendances by the applicant and his family were ‘low key’, that he was not a high profile congregant or church leader, that he was discreet, and the family made efforts to keep attendances ‘careful’.

8. Furthermore, the Tribunal finds that the applicants fear of arrest and imprisonment is exaggerated. He expressed no concerns arising before the event where he was detained in January 2017, along with other church members. He said he continued to attend church gatherings after that episode, and before leaving for Australia in May, and without further interest from authorities or Police. He was not arrested or charged, and his detention resulted in a fine, and he was subsequently able to depart the country freely and without apparent interest from authorities. He has never been since charged or persecuted. The Tribunal, accepting the applicant was detained, however rejects entirely his account of having been jailed, and then beaten by other ‘criminals’. His wife some hours later appeared at the Police station where he was detained with others, to pay the fine, and nothing happened to her and she was not detained, harassed, or threatened. This indicates that the Police were only interested in breaking up the gathering initially, recovering the fine and issuing warnings against further illegal gatherings, and not to charge, arrest for an indefinite period, or cause significant physical harm to individuals. The applicant gave no evidence of any other detainee having been jailed or beaten or injured.

9. The Tribunal rejects entirely the applicant’s claim that he fled to Australia for reason of obtaining ‘religious freedom’. He left his family behind, expressing no fear for them, when they were also church congregants, and paid an agent to provide him with a visitor visa, which according to Department records contained significantly false information, such as his employment details and his birthplace and residential details in China.

100.   The applicant did not deny the false information, reciting only that he had left it all to the agent and did not know what was said. The Tribunal finds that the applicant’s preparedness to rely upon false details provided to the Department to achieve his aim to obtain the visitor visa, reflects adversely on his credibility, and when challenged on this point in the Department interview, said he did not know what the agent did, which he repeated to the tribunal, and had nothing further to say about it. The Tribunal found that the applicant’s evidence was unreliable, and that he was generally vague and unresponsive.

101.   The Tribunal finds that in Australia, the applicant has not regularly practiced his religion. He has not attended church frequently and says he is largely unknown at the parish in [Suburb] which he says he was attending. He did not introduce himself to the priests or other congregants and offers no letters of support from that quarter, although he has been in Australia now for more than 5 years. He was unable to describe the nature of church services he said he had attended, Communion , or simple details about the Roman Catholic faith which he said he had privately studied. The Tribunal rejects that evidence, and similarly, does not accept that the applicant has for the past two years during the pandemic been attending online broadcasts on his mobile phone.

102.   The Tribunal finds that the applicant does not have a well-founded fear of persecution for his stated reason of practicing as a Roman Catholic and his intention to attend an underground church if returned to China. His experiences to date simply do not reflect a real chance of any serious harm or persecution occurring that is more than remote or insubstantial, based upon the accounts of his very limited activities. The Tribunal has found that the applicant is not a committed Roman Catholic who regularly practices his religion, either in Australia, or in China, were he to return.

103.   The Tribunal further finds that should the applicant continue to attend an underground church, anywhere in China, he will be in company with tens of thousands of other participants who also practice outside the CCPA church congregation, and who are largely left alone so long as they are discreet and ‘careful’ in practice, and as the applicant was doing previously, and in such a way as to not compromise his faith, and where the congregants, including the applicant and his wife, are ‘low level’ and are not high profile church leaders or activists.

Conclusion

104.   The Tribunal has listened to all the evidence carefully and taken into consideration what was said at the hearing, together with the applicant’s statement and his comments at the Department interview and to the first Tribunal.

105.   In essence, the Tribunal can accept that the applicant has been to an underground church in China together with his wife. It is likely in the Tribunal’s view that it was an underground Roman Catholic church gathering, not part of the CCPA, but otherwise a church practising the Christian religion in private meetings in homes and different villages.

106.   The Tribunal accepts that the applicant is a low-level member of the congregation, which is relatively small, regularly comprising 20 to 30 members from the local villages. The Tribunal can accept that the applicant was detained on one occasion in company with a large number of other church members. The Tribunal can accept he was detained and interrogated and released the same day on payment of a fine.

107.   As a consequence, the Tribunal understands and can accept that the applicant has some fear of police oversight of underground church gatherings, and further detention is possible. The probability however for that occurring, needs to be assessed against the following facts.

108.   The applicant has continued to practice his religion after being arrested in January 2017, until he departed for Australia in May 2017. He was not intercepted on departing the country and left freely of his own accord.

109.   On arrival in Australia, he joined a congregation at [Suburb] but was not baptised. He maintains he had been baptised in China but in Australia, had continued to study Roman Catholicism. He was unable to indicate what that entailed, and what he may have learned. He did not appear to understand some basic principles such as the difference between a church controlled by the Pope and the church controlled by the Communist state, assuming the state-controlled church was not established by God. He had not heard of the CCPA. He did not refer to the Pope at all as being the person with authority over true Catholics. He has not regularly practised as a Christian or Roman Catholic for the past 2 years because of the pandemic.

110.   He maintains he has prayed silently, alone, at home, and listened or watched religious media broadcasts on his mobile phone. He could not indicate whether this was a frequent occurrence, but the Tribunal was left with the belief that this did not occur at all as the applicant could not describe details of what he heard or saw, whence it came, and content.

111.   Even though restrictions since the pandemic have now ended some months ago, he has not returned to the congregation at [Suburb]. He gave no indication he intends to do so saying only that if he returns to China he will then return to the underground church.

112.   The Tribunal formed an adverse opinion as to the applicant’s credibility. The Tribunal is mindful in that regard that in assessing credibility the Tribunal ought be sensitive to difficulties applicants may face if they are generally credible, but who cannot substantiate their claims, in this instance, such as baptism, or membership of a particular church group, or provide objective and reliable information such as certificates, letters of support, or acknowledgment from a local Australian priest.

113.   On his own evidence, he is simply ‘unknown’ in Australia, where he has professed to escape to practice his religion freely and where it is reasonable to anticipate after 5 years, he would have made some connections, and would be able to produce some evidence of local church support. He has not produced anything, and relies entirely upon his oral statements, which the Tribunal has found were generally vague and unresponsive.

114.   As the decision-maker, the Tribunal is not obliged to give the benefit of any doubt to every applicant in such circumstance, and when it cannot be satisfied on the oral evidence and statements provided that they are all truthful, and in the sense that answers provided directly deal with the question posed, are fulsome and without equivocation.

115.   The Tribunal finds the applicant was not forthcoming with his responses. He did not respond directly to questions, even when given several opportunities to do so. He maintained steadfastly that if returned to China he would continue to practice Christianity in an illegal or underground church, which he no doubt believes is what is required in order to succeed in his visa application. He acknowledged that being careful and by maintaining a low profile, his wife has successfully managed to continue to practice in an underground church in and around his local village since 2015, without issue.

116.   The Tribunal does not accept the applicant’s statement this was just due to “luck”. It aligns with the information available to the Department that in China, provided the underground church members and ordinary congregants, as opposed to church leaders, take a low profile and are discrete, the chances of detection, discovery, or harm at the hands of the State in different parts of the country, are quite low, given the breadth and extent of Christianity in the entire country and many millions of Christians, and Catholics, both unreported and reported, who practice in villages, towns, and cities.

117.   The Tribunal finds that the applicant has not regularly practised as a Roman Catholic and does not accept his statements that he was baptised. The Tribunal finds that the applicant has not practised regularly as a member of a church congregation at [Suburb] in Sydney, despite the opportunity to do so freely. The Tribunal does not accept that the applicant has joined the congregation at [Suburb], that he has studied Roman Catholicism, or that he intends to continue practising with the congregation. The Tribunal rejects entirely the applicant’s evidence that he participates silently and privately at his home and by listening to or watching religious services on his mobile phone.

118.   As conceded by the applicant in his evidence about being ‘careful’, or discreet, if returned to China, just as he has done in Australia, the Tribunal accepts that he will take reasonable steps to modify his behaviour, just as his wife has successfully done, and to avoid a real chance of persecution by doing so, and where such care or discretion will not alter his religious beliefs or conceal his true religious beliefs, or cause him to cease to be involved in the practice of his faith and in the way in which he says he has himself practiced in Australia, alone and privately in his room.

119.   The Tribunal acknowledges that the concept of real chance focuses on the future, which involves a certain degree of speculation[12], and weighing up the reasonable possibilities of the chance of serious harm occurring. The Tribunal finds, for the reasons given above, that for the reasonably foreseeable future, the applicant does not have a well-founded fear of persecution for reason of practising his religion in an underground church environment in China.  

[12] Minister for immigration and ethnic affairs v Guo (1997) 197 CLR 559;

120.   The Tribunal can accept there is a risk due to the high state of oversight by the State in China for Catholics generally, who have not joined a CCPA authorised church. The Tribunal however, accepting the available information from DFAT, finds that the real chance of persecution and serious harm to the applicant for reason of his religious practice in this instance is quite low, given his evidence based on past events, and particularly as the applicant’s evidence is that he would take care to maintain a low profile in his involvement, and also for reason that the Tribunal has found he has not been an active participant as a practitioner in any event. He is not a church leader nor participant in high-profile Christian activity and unlikely to be the focus of any attention.

121.   The Tribunal finds the applicant has exaggerated his fear of persecution for reason of encouraging support for his application for refugee status and in order to remain in Australia with the hope of bringing his family here as well.

122.   The Tribunal finds that should the applicant be returned to China, and as he asserts, continue to attend the ‘true’ underground church in his village with his wife and children, and not an approved CCPA church, which in any event he knew nothing about, he will be at low-risk of persecution for that reason, being the reason claimed under s.5J(1).

123.   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).

Complementary protection

1. 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).

125.   The Tribunal has found based on country information that most Catholics in China will follow their local leadership, whether it is controlled by the State or the Vatican. It is the leaders themselves such as priests, nuns, and bishops, who are more likely to face State sanction than members of the congregation.

126.   The Tribunal can acknowledge that the situation may differ from place to place or community to community and local conditions may prevail but generally, Roman Catholics, throughout China, and whether underground or CCPA members, are subject to low levels of societal discrimination, and unless active as church leaders, unlikely to attract attention.[13] r these reasons and the reasons given above 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).

[13] DFAT report at 3.40

Conclusion

1. 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).

2. 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 criterion in s 36(2).

   DECISION

129.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Alan McMurran
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

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(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.

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