2109372 (Refugee)

2109372 (Refugee) [2024] AATA 3944 (16 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109372
COUNTRY OF REFERENCE:                   China
MEMBER:Edward Howard
DATE:16 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 May 2024 at 1:55pm

CATCHWORDS
REFUGEE – protection visa – China – religion – underground Christian – friends detained and tortured and applicant and family harassed – no response to tribunal’s communications or appearance at hearing – vague claims and no supporting evidence – no evidence of membership or activity in Australia – passport, previous departures and returns, and final departure – country information – no adverse profile – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIMA v Lay Lat (2006) 151 FCR 214
Prasad v MIEA (1985) 6 FCR 155
Re Ruddock; Ex-parte Applicant S154/2002 [2003] HCA 60
SZBEL v MIMIA (2006) 228 CLR 152
WAKK v MIMIA [2005] FCAFC 225
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a of China, applied for the visa on 5 January 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or (aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
‘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 inhumane treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhumane treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
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 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 risk that the applicant will suffer significant harm; or where the 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The’ real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether there is a real chance, if the applicant returned to China, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk that the applicant will suffer significant harm.
Protection visa application
On 5 January 2018 the applicant made an application for a protection visa. In her application, the applicant made the following claims. Firstly, in relation to why she left China, she stated:
“I am a devout underground Christian. Through the Lord’s 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 restrains (sic). I can give my everything to the load (sic). I hope the Australia can help me to stick to my belief without any restrains (sic).”
In relation to whether the applicant experienced harm in China, she stated:
“No”.
In relation to whether the applicant moved or tried to move to another part of the country, she stated:
“No”.
In relation to why the applicant did not try to move to another part of China, she stated:
“No. Because China is one-party dictatorship, it forbids the existence of underground Christina (sic). There is no freedom of religious belief in China. No matter when I go, I will be harm the government”.
In relation to what the applicant thinks will happen to her if she returns to China, she stated:
“If I return to China, I will be harmed by the government just like other underground Christians. I am regarded as a heretic by the government. They will arrest and insulted me”.
In relation to the type of harm or mistreatment she might receive, she stated:
“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 ”.
In relation to whether the applicant believes that the authorities would protect her if she returned, she stated:
“No”.
In relation to why the applicant believes the authorities could not or would not protect her, she stated:
“The local government will not protect me. Because China is one-party dictatorship, it required total obedience. There is no freedom of religious belief in China”.
As to whether the applicant would be able to relocate within China where she would not be harmed, she stated:
“No. The entire China is the same. There is no freedom of religious belief in the whole China. As an underground Christian, I can not (sic) survive in China”.
Request for further information
The Department, in correspondence to the applicant on 14 May 2021, invited her to provide further information regarding her claims. This invitation requested further details as to her religious practice and personal experiences in China, including specific dates, locations and details of events in relation to her claims. Further, the Department invited comment as to the applicant’s ability to depart China and travel to Australia. The Department also invited comment as to why the applicant would not be able to attend a state sanctioned church in practising her religion in China. The applicant had not provided any further information as requested prior to the date of the delegate’s decision.
Delegate’s decision
The delegate’s decision of 15 July 2021 to refuse the applicant’s application for a protection visa was made on the information before the delegate. The delegate refused to grant the visa on the basis the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk she will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Pre Hearing information form
On 31 May 2023, the Tribunal forwarded to the applicant a Pre Hearing Information Form, informing the applicant that her matter was being prepared to be sent to a Tribunal Member. The applicant was requested to complete the form in order to assist the Member conduct a review of her matter. The applicant did not respond to the Tribunal’s correspondence nor did she forward a completed information form.
Invitation to attend Hearing
On 17 April 2024, the Tribunal invited the applicant to attend a review Hearing at the Brisbane Registry on 8 May 2024. This correspondence advised the applicant that the Tribunal has considered all the material before it relating to their application , but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a Hearing. The invitation stated that if the applicant did not attend the Hearing, the Tribunal may make a decision on the case without further notice. This correspondence also requested the applicant complete and return the attached ‘Hearing Response’ form.
Pre Hearing contact
On 30 April 2024, the Tribunal forwarded an SMS message to the applicant reminding her of her Tribunal Hearing on 8 May 2024. The message requested that the applicant check the Hearing invitation to confirm the details of the Hearing and asked her to immediately reply to that Hearing invitation. The applicant was also given a phone number to call the Tribunal if she had any further queries.
On 7 May 2024 the Tribunal forwarded a further SMS message to the applicant reminding her of her Tribunal Hearing on 8 May 2024. The message requested that the applicant check the Hearing invitation to confirm the details of the Hearing and asked her to immediately reply to that Hearing invitation. The applicant was also given a phone number to call the Tribunal if she had any further queries.
Review Hearing - 10:30 AM - 8 May 2024
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled Hearing.
On the morning of the scheduled Hearing, the Tribunal attempted to contact the applicant via two telephone calls to the phone number provided by the applicant for the purposes of the review.
The first phone call to the applicant occurred at 10:32 AM but was unanswered. A message was left for the applicant informing her that the Tribunal was seeking to contact her in relation to her scheduled Hearing and provided a phone number for her to call the Tribunal. The contact phone number for the Tribunal was repeated twice. The second phone call to the applicant occurred at 10:45 AM but was also unanswered.
The Tribunal appreciates that proceeding to a decision on the documentation available to it is a discretion only and that careful consideration needs to be given to whether all reasonable and prescribed efforts were made to reach the applicant to enable her to attend a Hearing and provide meaningful and detailed evidence. In this case the Tribunal is satisfied that all reasonable steps were taken to engage the applicant with the Hearing process. In the absence of any contact from the applicant that she wished the Hearing to be rescheduled, the Tribunal proceeds to a decision on the papers.
Country information
The DFAT Country Information Report on the People’s Republic of China, dated 22 December 2021, provides, in part, the following information under the heading of ‘Religion’:
3.22 China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18,2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.
…
3.24 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 culture, 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 of 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.”[1]
[1] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 22 December 2021, pp 15 & 16.
…
3.27 Overall, an individual’s ability to practice religion depends on whether the individual worships in registered or unregistered institutions, whether they practice openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues.[2]
…
Christians
3.28 Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figure 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.[3]
…
Protestants
3.32 The Three-Self Patriotic Movement (TSPM), established in 1949, is the official governing body for Protestant churches in China. ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation taken from the 19^th century missionary philosophies. It does not refer to the Trinity. The Three-Self Church comes under the authority of the CCP’s United Front Work Department and is the single state-sanctioned protestant church in mainland China.
3.33 Most Protestants worship in unofficial ‘house’ churches. These ‘underground’ churches may literally be in a house, or can be large gatherings in, for example, commercial office space. During COVID-19, some services moved online, which in some cases increased the size of congregations. In recent years the Government has increased efforts to force them to submit to the authority of the TPSM, teach party-aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TPSDM. Churches refusing to align with the TPSM have been closed or threatened with closure. DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches. Larger churches are most likely to receive Government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions.
3.34 The situation for Protestants differs from place to place and community to community. DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without interference. The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.
3.35 DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practice their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.”[4]
[2] Ibid at p 16.
[3] Ibid.
[4] Ibid at p 17.

In relation to women, the Report states, in part:
3.109 High levels of development in recent decades have improved prospects for women. China was ranked 39th out of 189 countries in the 2019 UNDP Gender Inequality Index (where 1 is considered the most equal). Despite high scores for gender equality, some entrenched patterns of discrimination remain. China’s culture is heavily influenced by Confucianism which emphasises a role for women in the home. In 2019 President Xi called on women to ‘shoulder the responsibilities of … care of the old and young’. An historic traditional preference for boys over girls has devalued daughters within the family.
3.110 Discrimination is reported in the workplace. For example, job ads may explicitly seek a male candidate. China has a gender pay gap of 22.5 per cent. Some pregnant women report having their employment terminated because of their pregnancy. Women also mandatorily retire earlier than men (at age 55 for white collar workers and 50 for blue collar workers versus 60 for men).
Later in the DFAT report, under the heading ‘Treatment of Returnees’, it is stated that:
5.28 DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear.[5]
[5] Ibid at p 39.
Under the heading of ‘Documentation and Fraud’ and the sub-heading of ‘Exit and entry procedures’, the Report provides that:
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.[6]
[6] Ibid at p 40.
In relation to exit procedures, “DFAT assesses it is impossible to exit China without authorities’ knowledge”[7] (at 5.35).
[7] Ibid.
Further, on the topic of passports, the report notes:
5.40 The term of validity of an ordinary passport is 10 years (five years for a person aged under 16). Passport applications may be refused if a person is serving a prison sentence, is a defendant in a criminal case, or is a criminal suspect. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uyghurs and Tibetans. China does not recognise dual citizenship.[8].
[8] Ibid at p 41.
FINDINGS AND REASONS
In reaching its decision, the Tribunal has considered the Department’s file in relation to the application. The Tribunal has also noted, as outlined above, that the applicant failed to provide any further information and particulars as to her claim as requested by the Department, and chose not to accept the Tribunal’s invitation to attend a Hearing and give evidence and present arguments.
As noted above, the applicant provided a copy of the delegate’s decision with her application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa. As such, the Tribunal has not relied upon the delegate’s decision record in forming its assessment and coming to its decision.
As recorded above, the Department’s file contains details of the identity page of the applicant’s passport, and a copy of this. Based on this material, the Tribunal finds that the applicant is who she says she is and a national of China, and assesses her protection claims accordingly.
There is no evidence that the applicant has a right to enter and reside in a country other than her country of citizenship, China. The Tribunal finds that s 36(3) does not apply to her.
The applicant’s claim is that she fears returning to China as she is a devout underground Christian who attended an ‘underground church’ in China and that her friends at the church were detained by the authorities during an underground church gathering and were tortured by the authorities in a detention centre. She claims that she would be arrested by the police because she is a devout underground Christian and further claims that the authorities continually came to her home and harassed her family.
The Tribunal has found the applicant’s claims lacking in detail as to significant events. The applicant has provided no particulars as to where and when she attended an underground Christian church in China, when her church friends were allegedly detained and tortured by the authorities, how the police came to know that she was a underground Christian, when the authorities came to her home and in what way her family was harassed. Equally of note is that the applicant has not provided any details of any continued practice of her faith in Australia, which might have gone to satisfying the Tribunal of the genuineness of her claims of being a practising Christian.
The Tribunal notes that the applicant departed China on her own passport [in] December 2017 from an international airport within China. There has not been any information provided by the applicant suggesting that the applicant had any difficulties in departing China. This is not consistent with the applicant being a security interest to the Chinese authorities due to her religious beliefs and practice.
The applicant’s passport confirms that the applicant departed and returned to China on three occasions in 2017 prior to travelling to Australia, as follows:
·[March] 2017, departed China for [Country 1]
·[March] 2017, arrived in China from [Country 1]
·[September] 2017, departed China for Australia
·[October] 2017, arrived in China from Australia
·[November] 2017, departed China for [Country 2]
·[November] 2017, arrived in China from [Country 2]
Having regard to the applicant’s claims of the authorities being aware of her underground Christian church involvement, including claims of police detainment and torture of fellow church members, police attendance and harassment of her family and fear of arrest and torture if she were to return to China - the Tribunal notes that such evidence is not consistent with the applicant being able to depart and re-enter China on three occasions in 2017 and then depart from Australia at the end of 2017. Having regard to the DFAT material, this ability to travel freely is not consistent with the applicant being a security interest to the Chinese authorities due to her religious beliefs and practice.
In the circumstances of the applicant not accepting the Tribunal’s invitation to attend a Hearing, the Tribunal has been unable to address the concerns it has regarding the lack of particulars of the applicant’s claims. The Tribunal notes that, in particular, as outlined above, the applicant has failed to respond to the Department and provide adequate details and particulars as to:
·the applicant’s religious practice and personal experiences in China, including specific dates and locations;
·the claim that the applicant’s underground church was visited by police and that church friends were detained and tortured by the authorities;
·what happened afterwards to the applicant and why the applicant could not attend a State-sanctioned church; and
·the applicant’s ability to depart and return to China on three separate occasions in 2017 and her ability to depart for Australia in December 2017.
In this regard, the Tribunal notes that it is for the applicant to make their case. In this case the Tribunal observes that the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of this case. In this regard, it is also noted that the applicant has not availed themselves of the opportunity to provide further details in response to the Department’s request, which identified the areas of concern that the Department considered needed further clarification by the supply of particulars so the Department could properly make its assessment. Further, it is noted, despite having received an unfavourable decision from the delegate, the applicant failed to provide the Tribunal with any further information in support of her claim and chose not to accept the Tribunal’s invitation to a Hearing to give evidence in respect of the claim.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[9] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[10] This is consistent with the established proposition that it is for the applicant to make his or her own case.[11]
[9] Section 5AAA of the Act.
[10] Section 5AAA of the Act, inserted by item 1 of Schedule one of the Migration Amendment (Protection and Other Measures) Act 2015 (Cth), with effect from 14 April 2015.
[11] Prasad v MIEA (1985) 6 FCR 155 at 169-70; SZBEL v MIMIA (2006) 228 CLR 152 at [40];Re Ruddock; Ex-parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The Tribunal finds, on the evidence before it, that the applicant’s fears of persecution from authorities or any other group due to being a Christian or practising her Christian religion in an underground Christian church in China are not genuinely held. The Tribunal finds that the applicant is not a Christian, nor has she been involved in a local or underground church in China, nor were fellow church members detained and tortured at the underground church she attended. The Tribunal finds that the applicant has not practised as a Christian in Australia. The Tribunal finds that the applicant will not genuinely practise as a Christian on return to China. As such, the Tribunal does not accept, on the evidence before it, that the applicant faces a real chance of serious harm if she returns to China.
The Tribunal also finds, on the evidence before it, that the applicant’s stated reasons for leaving China are not genuine. In this regard, the Tribunal finds that the applicant’s home was not visited by the authorities nor that her family was harassed.
Additionally, given the country information and the lack of particulars provided by the applicant, the Tribunal finds that the applicant, as a single woman, does not face a real chance of serious harm if she returns to China; nor does it find that she would face a real chance of serious harm as a failed asylum seeker if she returned to China.
Having carefully considered all of the evidence presented by the applicant, including documentary and oral evidence, the Tribunal finds that the applicant’s fears of persecution from authorities due to being a Christian or practising her Christian religion in China are not well-founded or genuinely held. As such, the Tribunal does not accept, on the evidence before it, that the applicant faces a real chance of serious harm if she returns to China.
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).
For the reasons given above, the Tribunal is not satisfied that, if the applicant were to return to China now or in the reasonably foreseeable future, there is a real chance that she will be harmed for the reason of her religion or any of the other reasons set out in s.5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution in China.
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).
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’ 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. [12]
[12] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp 170-1 at [1169], [1180].
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of ‘torture’ in s.5(1).
The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm is to meet the definition of ‘degrading treatment or punishment’ in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty.
The Tribunal, therefore, 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) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36 (2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Edward Howard
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3944

16 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice