2111815 (Refugee)

2111815 (Refugee) [2022] AATA 4728 (6 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2111815
COUNTRY OF REFERENCE:                   China
MEMBER:Mark Bishop
DATE:6 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 October 2022 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – female – unemployed – physically and mentally harmed by authorities – court ordered repayment of debt – fear of harm – insufficient evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 201 FCR
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 31 August 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 citizen of China applied for the visa on 20 March 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a Protestant Christian as claimed.
The applicant appeared before the Tribunal on 16 June 2022 and 6 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
In evidence to the Tribunal during the first hearing the applicant advised the Tribunal she was illiterate. She was not represented. Accordingly at the conclusion of the first hearing the Tribunal determined to review the evidence and schedule a second hearing if necessary. In reviewing the evidence the Tribunal was alert to the possibility or unintended error or accidental omission in responding to Tribunal questions. The applicant’s grounds of review are not particularised as she disavowed any knowledge of the particulars in her Application for a Protection Visa. While “problematic”, the Tribunal’s (as presently constituted) preferred approach is to be mindful that, where an applicant is both illiterate and unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or to understand what is required of them, the Tribunal should understand the applicant’s evidence as broadly as possible and remain astute to the possibility of accidental omission, lack of full understanding of Tribunal processes, lack of awareness of her rights and inability to fully respond in a second language in a strange country. The purpose of the second hearing was to address these types of concerns in a reasoned manner so that the applicant had a full and second opportunity to provide all necessary detail to the Tribunal.
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The Tribunal summarises the following detail as set out in the applicant’s Application for a Protection Visa. The applicant is a [age] Chinese national born in Fuyang, Anhui. She arrived in Australia on [in] March 2019. However her protection visa application indicates she was living/working in [Country 1] up until [in] March 2019 and departed China o[in] March 2019 as the holder of a passport provided by the Consulate-General of PRC in [Country 1]issued [in] July 2011 and expiring [in] July 2021. She completed her education in 1989. She arrived in Australia as the holder of a visitor visa. She declared her marital status as married. Her marriage certificate shows a registration date of [in] October 2008. She declared her spouse and 2 adult children were not included in the Application for a Protection Visa. Her father has passed and her mother is alive. She has previously travelled to South Korea, the [Country 1]and the UK. She holds a temporary work visa in the [Country 1]. She declared her ethnic group to be Han Chinese and her religion to be Christian. She worked in various clerical/administrative capacities in the years 1989 until 2019. She provided details of her previous residential address in Fuyang, Anhui Sheng China. The Tribunal notes that in evidence the applicant provided detail that contradicted a lot of the detail outlined above (education status, trips to other countries, marital status, work history, work experience and grounds for seeking a protection visa). In these circumstances the Tribunal has preferred the oral evidence of the applicant.
In her Application for a Protection Visa dated 20 March 2019 the applicant declared as follows:
·The applicant left China because she and her family suffered persecution because of her Christian faith.
·Persecution of Christians in China is on the rise again.
·She is a Christian in a house church. She and her fellow church members suffer from persecution.
·She was deeply influenced by communist ideology in her formative years but lost faith in that system because of widespread corruption. There is no freedom and democracy in China. By 2004 she had lost faith in the communist party system in China. It is a one party dictatorship and she does not have any faith in the official institutions of Chinese society.
·Christians are persecuted because of their faith in God. In China Christians are imprisoned, tortured, disabled and killed. She outlined details of alleged spiritual, physical and emotional torture. She outlined the history of early church martyrdom. There is a history of persecution of previous generations of her family because of their position of authority or leadership in their family church. Her parents raised her to be a family church leader.
·Unlike the west, China has autocratically imposed laws. Christianity is growing in China. She sought help after being mistreated. Her friend’s sister disappeared and she sought to find her with the aid of the police and the government. Neither would help. It is impossible to fully practise open Christianity in China.
·She could not shift to another part of China because of the household registration system and accompanying life to death documentation. Other faiths (Buddhism, Islam and Hindu) suffer similar persecution as do Christians. She attempted to shift but ended up living on the street in a box and used up all her savings. As she missed her family she returned home.
·If she returns to China she will live a life under police monitoring. She will not receive protection from the authorities. Her family might be harmed again. As long as you are a Christian and have participated in a house church, then you will be arrested at any time. In Australia she attends the local Chinese church. It is warm and welcoming. Persecution in this context ranges from having house churches being ordered to join the state sanctioned Three-Self Church or being banned from renting space for worship, all the way to having meetings raided, with attendees arrested, beaten, and in some cases imprisoned.
·The Chinese government believes recently promulgated ordinances and regulations concerning the detail of practice of faith are lawful and consistent with UN human rights instruments. This is just superficial. Previously identified Christians are regularly fined increasing amounts.
·The Chinese authorities will not protect her if she returns to China. The Chinese government distinguishes between official churches and house churches. The Chinese government promotes cultural traditions such as Confucianism and Buddhism.
·Tolerated underground systems forcibly remove organs from detainees in detention centres. Police actively participate in this process. This practice is common.
The Tribunal notes the qualifier as set out in the last sentence of paragraph 11 above. The Tribunal notes the evidence of the applicant as set out in paragraph 26 below as to having no knowledge of the particulars as set out in this Application for a Protection Visa and the decision of the Tribunal in the last sentence of that paragraph.
Attached to the Application for a Protection Visa were ID cards, Family Relationship Evidence and Passport with exit stamps in the name of the applicant.
In summary as set out in hr Application for a Protection Visa the applicant’s main claim is to be Christian, her profile is that of Female, Married, Unemployed, Christian and Han Chinese. The applicant declares she is a Christian and suffered brutal persecution while living in China because of her religious faith and practice. The applicant asserts there is no religious freedom, freedom of speech or democracy in China. The applicant declares she has been physically and mentally harmed by the authorities while in China because of her religion. Her friends and relatives have also been threatened. The police arrested and detained her for one month when she attended family church, as they claimed it was an illegal gathering spreading an illegal religion. Although she sought assistance from the government and the police, she did not receive any help. She did not move to another part of China because of the complexity of the household registration system. She claims Christians are also targeted for their organs while in detention centres. The underground trading organisations collude with the police, to force the removal of the organs of Christians. She fears the police. She claims her freedom will be limited. She will have to live a life under police monitoring. She will have no religious freedom and she will be arrested and detained and sent to a labour reform camp or prison when she attends her family church. The government authorities will not provide her with any protection.
The applicant did not provide any further information documents or commentary to the Department. The applicant did not respond to requests for information from the Department.
On 26 May 2022 the Tribunal wrote to the applicant and advised we (the Tribunal) had considered the material before us but were unable to make a favourable decision on this information alone. The Tribunal invited the applicant to attend a hearing on 16 June 2022. The Tribunal requested the applicant provide “all documents you intend to rely on to support your case by 7 June 2022”. The Tribunal also scheduled a second review hearing on 6 October 2022.
On 31 May 2022 the applicant advised the Tribunal in writing in a signed and dated statement she did not intend to rely on any documents at the hearing inclusive of written witness statements, written submissions, country information or other evidence. In addition the applicant advised the Tribunal in writing she would not call any witnesses.
Country Information
The most recent DFAT Country Information Report (CIR0 for China was published on 22 December 2021. It sets out the following:
·China officially recognises 5 religions inclusive of Catholicism and Protestantism.[1]
·Religion in China is traditionally not as separate from everyday life as in the West.[2]
·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.[3]
·Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise 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. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.[4]
·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 any 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.[5]
·DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise 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 face a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.[6]
[1] DFAT China Country Information Report (CIR) December 2021 para 3.22
[2] DFAT China Country Information Report (CIR) December 2021 para 3.23
[3] DFAT China Country Information Report (CIR) December 2021 para 3.24
[4] DFAT China Country Information Report (CIR) December 2021 para 3.27
[5] DFAT China Country Information Report (CIR) December 2021 para 3.34
[6] DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise 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 face a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.
Refugee considerations
In her Application for a Protection Visa the applicant claims she faces persecution in China as a practitioner of Christianity. In lengthy evidence to the Tribunal the applicant explained she did not wish to return to China for the following reasons:
·She had to repay a loan she had taken out many years ago.
·Her children may not be nice to her as she did not care for them and left them.
·She had nowhere to live.
·She had a little fear of the Chinese government because of the fact she was a Christian. However she explained to the Tribunal that it used to be very strict and was much less now. She did not really have any serious fears relating to her practice of Christianity.
As to the detail outlined in paragraph 19 above the Tribunal repeatedly asked the applicant to explain her reasons for seeking a Protection Visa and the applicant said on a number of occasions her reasons were as outlined in paragraph 19 above
Immediately prior to the hearing the applicant provided a copy of her passport. The applicant confirmed her prior written advice that she did not have any other documents to provide to the Tribunal.
At the outset the applicant was asked if she wished to give an oath or swear on a holy book. The applicant advised the latter. The hearing attendant asked the applicant to choose her book and the applicant asked which was the Bible. The hearing attendant pointed to the book clearly marked in bold letters “Holy Bible”. The applicant picked up the book and swore as appropriate.
The Tribunal asked the applicant why she did not choose the Bible without assistance. The applicant explained she could not read or write Chinese or English, had never attended school in China and had never received any formal or informal instruction to learn how to read and write.
As the applicant had provided detailed written responses in her Application for a Protection Visa and in oral evidence to the Tribunal and disavowed any knowledge of the content of her Application for a Protection Visa the Tribunal took the view it was necessary to examine the applicant on matters normally declared in such an application (see paragraph 26 below).
In evidence to the Tribunal the applicant advised she currently resides in Australia as the holder of a visa. She did not know the type of visa excepting that it was for refugees.
The applicant explained to the Tribunal that she had never read any of the detail in her Application for a Protection Visa. She was not familiar with the content. She explained a friend introduced her to a Chinese Migration Agent (MA) in Chinatown in Sydney. He asked her some questions as to basic factual detail (DoB, marital status, spouse detail, children detail, departure and arrival dates, work history and education, etc.). The applicant advised the MA charged $2,000 for the preparation of the Application for a Protection Visa and advised her payment of the fee would enable her to live in Australia “forever”. The applicant did not read her own Application for a Protection Visa as she could not read it. The MA did not read the detail as set out in the Application for a Protection Visa to her. The applicant was not familiar with the content contained in the Application for a Protection Visa. The Tribunal gives the written Application for a Protection Visa no weight.

In evidence to the Tribunal the applicant advised as follows: she was born on [DOB] is now [years of age], cannot read any Chinese language, did not attend school in China because she was the middle child and had to look after 2 younger siblings, cannot read English, her father passed she thinks 20 years ago, her mother is still alive, both her parents were farmers, she lived in a small village (only one shop) in China until 2006, the school in her village only took student s to grade 5, her parents were both illiterate, she was married on two separate occasion, but cannot remember when she was married, is now divorced, was divorced “many years ago”, last lived with her first spouse as man and wife prior to 2006 but cannot remember the year, was the mother of 2 boys aged she thinks [age] and [age], both of her sons are married and her eldest son has 2 children, she has 4 siblings living in China all of whom went to school, she legally departed China in 2006 as the holder of a valid passport, returned to China for a month in 2011/2012 to [work]in her 2^nd husband’s factory, lived in [Country 1] from 2006 until 2019, renewed her passport whilst living in [Country 1], worked in [Country 1]as a [occupation] in a factory owned by her 2nd husband, her children lived with her former spouse after her divorce (“he would not give me the children”), arrived in Sydney, Australia [in] March 2019 after overnighting in Shanghai from [Country 1], currently lives in [Victoria], last lived in China in 2006, her current passport was issued by the Chinese consulate in Sydney and she previously held 2 passports issued by the relevant Chinese authorities and on her visits to and from China since 2006 has never had engagement with Chines police, security officials, intelligence agencies or customs and passport officials.
In evidence the applicant advised she works work in Australia for a Chinese woman in [Suburb] as a [carer]and earns approximately $1,000 every week. The applicant repeatedly advised the Tribunal she earns $1,000 per week and this is sufficient for her rent, food, clothing, entertainment and other necessaries of life.
In evidence to the Tribunal the applicant advised she was exposed to Christianity at the age of 12/13 as her mother wished her to become Christian, she did not attend church in China, she prayed and worshipped with a small number of family members and sisters (not biological sisters but friends in worship) on occasion on Fridays and Sundays in a house, did not attend church in China, did not attend church in [Country 1], prayed occasionally in [Country 1], does not practise her religion in Australia, does not go to church in Australia, had been to church in Australia on one occasion only, is not a member of any church in Australia, does not know the name of any church in Australia, did not know the name of any Minister or Pastor in Australia, does not know the names of any other people in this church service she attended on one occasion only, does not maintain any contact with these people or those who lead the service, she believes in Christ, she believes the Lord will protect her, she adopted Christianity because her mother told her to do so and she believes in Jesus and she believes in the Lord.
In evidence to the Tribunal the applicant explained a house church service was raided by the local police in 2004. She and her parents were taken to a detention centre and detained for 15 days. She was beaten. After 15 days she was released without explanation. She does not have any documents or papers relating to this period of detention. She advised she does not recall signing any documents upon release from detention. Post detention she did not seek any assistance from the police or other government bodies. She did not complain to the police or any government bodies. She did not complain or lodge any complaint. She advised her parents had not had any problems with Chinese authorities since 2004. She advised the period of detention in 2004 was her only time of engagement with the Chines police or authorities in the time she lived in China (essentially pre-2006). Since leaving China and on her occasional visits to China or transiting through China she has not had any engagement with any official agencies or officials of the Chinee state.
The applicant advised the Tribunal she departed China in 2006 and lived in [Country 1]from around 2006 until 2019.
The applicant advised the Tribunal she did not practice Christianity in [Country 1] and did not attend any church services in [Country 1]. On occasion she prayed in [Country 1].
In evidence to the Tribunal the applicant explained she did not wish to return to China for the reasons outlined in paragraph 19 above. Her friend had applied to the court in China for an order to enforce repayment of the debt and the court had granted the order. She did not have any documents relating to this debt or subsequent processes and could not provide any relevant documentation to the Tribunal. She thought she had an obligation to repay the debt but the interest bill was now too high. She thought the police might seek to enforce the court order if she returned to China.
Findings
The Tribunal finds as follows:
·The applicant has been exposed to Christianity since her teenage years.
·The applicant occasionally practised Christianity in China from her teenage years. There were periods of many years from her age of 13 until the birth of her first child that she did not pray at all. Until 2006 that practice was done in private with a small group of family and friends in what are known as “house churches” in China.
·The applicant has not practised Christianity in any meaningful way in [Country 1] or Australia since she departed China in 2006. The applicant has rarely practised Christianity in any traditional form by attendance at church services and the like since leaving China. On occasion the applicant engages in prayer by herself.
·The applicant has had a set of engagements with the Chinese government since her initial application for a passport in 2006 or around that time (various applications for passports, return to work in China around 2010/2011, overnighting in Shanghai en route to Australia and WeChat dialogue). Those engagements have been routine and there is no evidence before the Tribunal that the applicant is noted on any watch list or list of concern to the authorities in China.
·The applicant’s parents (or mother, as her father has passed) have not had any engagement with the police or government authorities since their initial and only detention around 2004.
·There is no evidence before the Tribunal that the applicant has ever had any leadership role in any Christian organisation since her teenage years.
·There is no evidence before the Tribunal that the applicant has ever sought some formal instruction in Christianity since her departure from China.
·There is no evidence before the Tribunal that the applicant is a person of interest or concert to any arm of the Chinese government.
·The applicant’s practice of Christianity in Australia has been episodic, sporadic minimal and conducted on an ad hoc basis.
The applicant advised the Tribunal she suffered what might be described as a 15-day period of arbitrary detention in 2004. Her parents and fellow religious practitioners were similarly detained. She was released without notice. She was not a person of interest to the police or government authorities in China from the time of her release until her departure from China in 2006. She was not a person of interest to agencies of the Chinese government on any of her returns to China post 2006. She did not provide any written statements or statements of witnesses that might have addressed her period of detention. She did not provide any official documentation that might have noted her period of detention and release. She is still in contact with her mother and reported to the Tribunal that her mother as a continuing resident in China has not had any engagements with the Chinese police or other authorities since her release in 2004. She is in communication with family and friends in China via the WeChat platform. It is notorious this platform is monitored by Chinese authorities. She has applied for passports in [Country 1] and Sydney. She overnighted in Shanghai on her way to Sydney. None of these engagements with the Chinese state have resulted in any follow-up monitoring or activity of any kind.
The applicant did not provide any confirmation or verification of these occasional phone or video hook-ups with ‘sisters’ in China. The applicant did not provide a statement from her mother or other persons who may have been detained by Chinese authorities in 2004.
As outlined above in paragraph 33 the applicant referred to a debt. She advised the person who made a substantial loan to her many years ago had applied to the relevant court in China for an order enforcement of repayment of the loan. This process is entirely appropriate and proper. The Tribunal is unable to draw any conclusion that this lawful process is untoward in any way.
The Tribunal is not convinced the applicant is a person of Christian faith. The Tribunal does not accept the applicant’s evidence as to the occurrence of a detention and beating in 2004. The Tribunal is troubled by the applicant’s, at best, irregular practice of her professed faith. The Tribunal has concerns as to the very limited practice of Christianity by the applicant since her departure from China when she has had the clear opportunity to participate in Chinese diaspora of a Christian faith in both [Country 1] and China. The Tribunal does not express any concern as to the applicant’s limited knowledge of basic tenets of Christianity as she is illiterate and unable to read or understand basic texts. It is not unusual for illiterate persons to be unfamiliar with Christian text and rely upon information, doctrine or theology from church leaders, officials or persons in the congregation who provide pastoral care or instruction of a basic nature. It is troubling to the Tribunal that the applicant has not to some degree sought comfort and support from any of the Chinese Christian churches in Australia or [Country 1]. The Tribunal notes the applicant gave evidence on two separate occasions. The applicant’s evidence on these occasions as to dates, times periods, sequences relating to time, events relating to time or in specific periods or decades lacked specificity and was often unclear. The Tribunal does not draw any adverse inference as to this evidence as the applicant is illiterate and thinking in time is a function of literacy. Over the period of the two hearings the applicant’s evidence, although expressed broadly as to most matters (but not all) was mostly consistent.
The Tribunal is of the view the applicant has established a safe, secure and well-paid environment in Australia in which she can live, work and move around in a degree of comfort. The Tribunal accepts the applicant wishes to remain in Australia for these reasons.
The evidence considered in totality, is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would suffer serious harm for reasons of religion if she were returned to China now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act, and therefore the applicant is not a person in respect of whom Australia has protection obligations, and the applicant does not satisfy the criterion in s 36(2)(a).
Complementary protection
The Tribunal now turns to consider whether the applicant satisfies the criterion in s 36(2)(aa) of the Act. A person will satisfy the criterion if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk the applicant will suffer significant harm. The definition of significant harm is stated in s 36(2A) of the Act which is reproduced in the attachment to this decision.
The Tribunal finds that the evidence is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant will suffer serious harm for reasons of religion if she returns to China now or in the reasonably foreseeable future. The Tribunal is not satisfied the applicant will engage in religious conduct in China that will lead to a real risk of the applicant suffering significant harm in China. The Tribunal is not satisfied the enforcement of a court ordered repayment of a debt leads to a real chance the applicant would suffer serious harm.
In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246], [297], [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a) of the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk she will suffer significant harm.
Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa).
There is no suggestion that the applicant meets the family member criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Bishop
Senior 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.
…

[2022] AATA 4728

6 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction