2113079 (Refugee)

2113079 (Refugee) [2023] AATA 4121 (29 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  2113079
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:29 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 August 2023 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – forced abortion of second pregnancy – religion – underground Roman Catholic – arrested at church gathering and taken to family planning agency for forced sterilisation – lived and worked in third country – detained and fined for church attendance during return visit – no attendance in third or fourth countries, attendance in Australia initially to support claims for protection visa, then more genuinely – considerable knowledge of Catholicism and situation in China – country information – general official toleration at the time – church membership at the time not accepted – recent agreement between Vatican and Chinese government – family planning policies – forced abortion accepted – sterilisation, possibly forced, accepted but unrelated to church attendance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), 65, 425
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)
CASES
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of the People’s Republic of China (China) and is [Age] years old. She was born in Fuqing City, Fujian Province, China. [In] June 2016 she arrived in Australia travelling on a Chinese passport as the holder of an Australian visitor visa.
The applicant applied for a protection visa on 4 July 2016.
The applicant attended an interview at the Department of Immigration and Border Protection on 29 June 2017.
On 2 August 2017 the delegate of the Minister for Immigration and Border Protection refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 22 August 2017.
There is no restricted material on the Department’s file.
The applicant first appeared before the Tribunal, differently constituted (Tribunal 1), on 19 February 2021 to give evidence and present arguments. The hearing was conducted remotely. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal affirmed the delegate’s decision, and that decision was set aside, by consent, by the Federal Circuit Court on 21 September 2021. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant gave evidence about her background, her migration history and her claims for protection. The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Remittal
The matter is before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Tribunal notes that Tribunal 1’s decision of 12 April 2021 was set aside because it was found to be affected by jurisdictional error. The Tribunal failed to put the applicant on notice of dispositive issues arising in the review that were not in issue for the delegate. In particular, the Tribunal did not put the applicant on notice that her claims that she was harassed by the Family Planning Office, underwent a forced termination and was forced to undergo sterilisation in 2008 were in issue. Accordingly, it was found that the Tribunal failed to afford the applicant an adequate opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425 of the Migration Act 1958 (Cth).
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).
[2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[3]
[3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.
In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal 1.
Material before the Tribunal
The applicant provided several documents to support her application for a protection visa, including:
Documents provided to the Department File No [Reference].
·Copy of the applicant’s Chinese passport issued [in] 2009.
·Statement setting out the applicant’s claims (English language) dated 1 July 2016.
Documents provided to the Tribunal File No 1718989
·Delegate’s decision record dated 2 August 2017.
·Letter from [Organisation] dated 3 February 2021.
·Letter from [Father A] dated 3 February 2021.
·Several photographs showing the applicant outside a Catholic Church in Sydney and photographs of the applicant standing together with members of the clergy.
Documents provided to the Tribunal File No 2113079
·Letter of support from [Fr. A] of [Organisation] 8 July 2023.
·Letter of support from [B], current president of [Organisation] 8 July 2023.
·Submissions made by the applicant 12 July 2023.
·Letter of support from [Fr. C] 9 July 2016.
·Letter of support from [Ms D] and translation 9 July 2023.
·Letter of support from [E], and translation 9 July 2023.
·Letter of support from [Sister F] and translation 8 July 2023.
·Letter of support from [G], ex-president of [Organisation], and translation 9 July 2023.
·Photos of church activities in Australia.
·Post hearing submissions made by the applicant 26 July 2023.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complimentary protection.
The relevant law is set out in the attachment.
Background
The applicant is [Age] years old. She was born in Fuqing City but later her family moved to a rural area in the Fuqing City District. Fuqing City is also known by its local name of Rongcheng – Fuqing is the Mandarin version. The city is located in Fujian province approximately 40kms south of the provincial capital Fuzhou[4].
[4] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000)
The applicant’s parents are living in their hometown in the rural area. The village is called [Village], [District], [Township], Fuqing City, Fujian Province. The home village has about 500 residents and it is about one hour by car from Fuqing City.
Her parents are farmers but are not employed. She has [brothers] and [sisters]. Her brothers live in the home village and her sisters live in other villages in Fujian.
The applicant attended primary school in the village, then middle school and vocational high school in the local area. She finished vocational high school when she was about 19 years old.
After she left school she worked in a factory for six years. She married in [Year] and she and her husband are still married. They have regular telephone contact. She and her husband have two children; [an Age]-year-old son living and working as [an Occupation in [Country] and [an Age] year old daughter who is still studying in China. Her daughter and husband are living in a rented apartment in Fuqing City. Her husband has been in poor health for 10 years and is unemployed. The family rely on the applicant for their financial support. She works in a [job] and sends them money.
In the application for protection visa the applicant set out her migration history as follows:
·[October 2007] - holiday/leisure trip to [Countries 1 and 2]
·[June] 2008 to [April] 2011 [Country 3]
·[April] 2011 to [October] 2011 China
·[October] 2011 to [June] 2013 [Country 3]
·[June] 2013 to [August] 2013 China
·[August] 2013 to [February] 2015 [Country 3]
·[February] 2015 to [March] 2015 China
·[March] 2015 to [March] 2016 [Country 3]
·[March] 2016 to [April] 2016 China
·[April] 2016 to [June] 2016 [Country 4].
Country of reference
The applicant claims she was born in Fujian Province, China and is a citizen of China. She provided a copy of her passport which was issued [in] 2009. She has consistently claimed that she is of Chinese nationality, she spoke Mandarin fluently and she was familiar with the geography and culture of Fujian Province.
Taking into account the available evidence, and noting there is no issue as to identity and nationality, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the statement accompanying the application for protection. The applicant discussed her claims for protection with the delegate at an interview on 29 June 2017.
The applicant gave oral evidence concerning her claims at the hearing held by Tribunal 1 on 19 February 2021. This hearing was held during the COVID 19 pandemic using MS Teams audio.
Following the remittal of the application to the Tribunal the applicant appointed a new migration representative in May 2023. The applicant provided further documents and the applicant’s submissions which related to country information on the situation for Chinese Catholics.
Essentially the applicant’s current claims are that if she returns to China, she faces serious harm from Chinese authorities because she is a Roman Catholic and she will join an underground Chinese Catholic congregation and will not join the registered Chinese Catholic Church.
Findings and Evidence
Claims of forcible sterilisation and membership of an underground Roman Catholic group in China.
In the applicant’s statement of 1 July 2016, she stated that she and her husband married at the end of [Year]. After they married, they opened and ran a [business] in Fuqing City selling [Products]. The applicant fell pregnant and gave birth to her son in [Year].
The applicant claimed that in [Year] she discovered she was pregnant again. She stated at the time the family planning laws were strictly observed and the officials from the family planning office suspected that she was pregnant. The officials tried to pressure her to submit to an abortion but she repeatedly refused. In [Year] family planning officials came to her shop and beat her and forcibly dragged her into the van and headed to the Fuqing City Family Planning station. When she arrived, she was forced to submit to an abortion. Due to the abortion her health deteriorated, and she had pelvic and chronological conditions which caused her to stay at home to rest for several years.
In [Year] she found she was pregnant again but escaped attention by the family planning authorities by avoiding contact with officials. She went into labour in [Year] and when she attended the hospital, she experienced difficulties in the birth process. She claimed during this time she was assisted by a midwife who was a Roman Catholic who told her to believe in God and pray. She gave birth to her daughter safely and was very grateful to the midwife.
She and her husband paid 15,000RMB for the birth of their daughter[5]. After the birth local family planning officials asked her to submit to sterilisation but she declined the request.
[5] “Social compensation fee” Article 46 of the Fujian Population and Family Planning Regulations 2014
The applicant claimed she became friendly with the midwife and started to attend underground Catholic Church activities from the beginning of 2006. Her husband was a Buddhist and did not approve but he respected her wishes to become a Roman Catholic.
She claimed that in August 2006 she was baptised to be Roman Catholic in a private church members home in Fuqing City.
She claimed that in [Year] she and 40 or so church members were participating in a church gathering when they were arrested by local police and taken to the Rongcheng[6] police station. She was questioned about her personal details and asked to give details about the underground church group to which she belonged.
[6] Rongcheng is the local name for Fuqing City.
She did not answer any of the questions about the underground church group. She claimed after about 15 minutes one of the policemen returned to the room with two auxiliary police officials. They handcuffed her hands took her to a police vehicle and she was taken to the Fuqing City Family Planning station where officials were planning to forcibly sterilise her. They gave her anaesthesia and sterilised her without her consent. After three hours she woke up and was told to go home. After the sterilisation her wound suffered inflammation and irritation and she developed a deep scar. After this took place, her daughter was given household registration.
She claims that after this incident she was frightened because she did know what would happen to her if she was discovered by police participating in the underground Roman Catholic Church. With the assistance of her sister’s son, she left China and travelled to [Country 3] at the end of June 2008. She worked in her nephew’s [business] until 2011 when she returned to China for a visit in April 2011.
The religious restrictions in China had not improved when she returned and the underground group still needed to hold religious activities in private homes. On the morning of [Date] when she was attending a church gathering with 30 or so church members at [Subdistrict] in Fuqing City police burst in and ordered them to stop the illegal underground Catholic activity. They confiscated rosary beads and other religious literature and all participants were taken to [a] Police Station.
In the police station they were interrogated separately and apart from giving details of her personal information she refused to answer questions about the underground church. All the female church members were locked into a small cell and at 6 o’clock in the evening they were all released in turn after their families paid ¥5000 fine. When she was released, police warned her that she needed to make sure she would not be caught again. In October 2011 she decided to return to [Country 3] and worked in her nephew’s business again. In 2014 she applied for [Country 5] visas twice and her visa applications were unsuccessful.
At the hearing held by Tribunal 1 the applicant gave evidence, amongst other things. about her claims that she was detained on two occasions in China, her travel and residence in [Country 3], her reasons for returning to China to visit and whether she had made an application for protection in [Country 4].
At the Tribunal hearing of 20 July 2023 the applicant gave evidence that she first became a Catholic in China. She stated that in [Year] when she was in hospital giving birth to her daughter she was having difficulty giving birth and a midwife came to her ward and asked if she could pray. The applicant did not know what prayer was but after the midwife prayed, she had a good delivery. She and the midwife became friends.
At the time of her daughter’s birth she and her family were living in a rented apartment in Fuqing City. After she and the midwife became friends, she joined the midwife and went to an underground Roman Catholic church gathering. She claimed that all the Catholic churches in Fuqing City were underground churches. The Tribunal put it to her that at that time there were quite a few official and underground churches in Fujian[7]. She stated that the genuine church is underground and the official Catholic church is controlled by the Chinese government.
[7] DFAT Thematic Report on Fujian Province People’s Republic of China 16 December 2016 pp 3.6, 3.7 3.8, 3.11, 3.12
She claimed the church group met in a friend’s home or secret location. She claimed that they changed location every time they held a gathering. When asked the name of the group she stated it did not have a name but they gave it a nickname “Belief, wish and love”.
The Tribunal put it to her that in [Year] country information indicated that there was a thriving Christian community in Fujian and officials generally tolerated official and underground Catholic churches[8]. She disagreed and stated this was the report for outsiders and the real story was the government did not tolerate underground churches. The Tribunal put it to her that while the situation for Christian churches has changed in recent years, historically, the authorities in Fujian had been tolerant of Christianity and Christian churches. Her description of her experiences at that time is not consistent with country information. She stated the situation became tougher after [Year].
[8] DFAT Thematic Report on Fujian Province People’s Republic of China 16 December 2016 pp 3.6, 3.7 3.8, 3.11, 3.12
She stated she attended a gathering on [Date] and the police attended that gathering and detained the participants. She and 40 others were questioned about the church and the priest.
When questioned as to how she recalled that specific date she stated she had a particular memory of that date because she underwent forced sterilisation on that date and has a scar on her stomach from that procedure. She stated that she remembers the rude attitude of the medics and the physical and mental effects of that procedure.
The Tribunal questioned why she would have been taken for forced sterilisation as a result of being detained for attending an underground Catholic church gathering. She stated that after giving birth and paying 15000RMB she refused to be sterilised and was not allowed household registration for her daughter. She claimed that after being caught at the church gathering, she was forcibly sterilised and her daughter was given household registration.
The Tribunal asked her why the police would take her to the family planning station when the police and family planning were separate agencies. She claimed the agencies were interrelated and someone in the police checked with family planning and found out about her refusal.

She claimed that she was taken to the Fuqing Family Planning station which was an agency dedicated to sterilisation and had operating theatres, anaesthetics, and medical staff.
The Tribunal put it to her that country information from [Year] indicated that there was pressure on those who had two children to be sterilised and while forced sterilisation was unusual it still took place at that time.
The applicant stated that the main reason she was sterilised was because she was attending a Roman Catholic gathering and had violated the religious regulations. The police took the opportunity because of her previous refusal to be sterilised. She stated after having the forced sterilisation she was scared what might happen to her, so her sister’s nephew helped her go to [Country 3]. She claimed if she had stayed in China she would have attended further gatherings and had no idea what would have happened if she had been caught.
The applicant stated that she first went to [Country 3] in 2008 to work in a business operated by her nephew, that is, [Company]. She stated that it was a trading company supplying [products] to local customers in Africa. Her work involved entertaining customers, monitoring sales, collecting cash, maintaining inventories, and organising deliveries. Her nephew is no longer operating his business in [Country 3]. He sold his business in 2019, returned to China and is now unemployed.
In her application for protection the applicant stated that she had lived and worked in [Country 3] from [June] 2008 to [April] 2011 then returned to China. During her visit to China she claimed that on [Date] she was attending a religious ceremony in a private home when police attended and detained all the attendees. At the police station the attendees were asked about priests and the location of church gatherings. They were all detained until 6pm and then released and fined 5000RMB. When she returned to her family home that evening her husband told her she either needed to give up her religious belief, get a divorce or leave China. She decided to leave China again for [Country 3].
She decided to return to [Country 3] [in] October 2011 where she stayed and worked until [June] 2013 when she returned to China again. She returned to [Country 3] from China [in] August 2013 and continued to live and work there from [August] 2013 to [February] 2015. She returned to China in February 2015 for a visit before returning to [Country 3] [in] March 2015. She remained in [Country 3] until [March] 2016 before she returned to China and then visited her cousin in [Country 4] in April 2016.
The Tribunal put it to her that she had spent a long time working and living in [Country 3]. She stated she lived with her nephew in an area called [City] where many Chinese people lived and worked.
The Tribunal asked the applicant if she had attended a Roman Catholic church in [Country 3]. She stated she had attended a church there but could not tell the Tribunal the name of the church or where it was located. The Tribunal put it to her that country information indicated there were a number of Roman Catholic churches in [City] an [Country 3]. She stated the church was attended by a lot of [local] people and someone from work used to take her there. The Tribunal put it to her that if she had attended for a number of years she would have known, and could have recalled, the name of the church and its location. She stated it was a small church; she could not remember the street name and could not provide other local details. She stated she did not attend for very long due to the poor personal security situation in [Country 3].
The Tribunal put it to her that she claimed she had gone to [Country 3] to exercise her freedom of religious belief but had not gone to church very often. She stated that there was freedom of religion in [Country 3], but it was unstable and that is the reason she did not go to church.
When she first went to [Country 3] her husband was working but in about 2015 he became sick and has not worked since then.
The Tribunal has considered the written and oral evidence provided by the applicant. In her statement she claimed that she had undergone a forced abortion in [Year] after the birth of her first child. This was not mentioned at either of the Tribunal hearings, however, the Tribunal accepts this evidence as it is consistent with country information in [Year] on the attitude of authorities to breaches of the family planning regulations at that time.
The Tribunal accepts that the applicant gave birth to two children and that after the birth of her second child she was asked to undergo sterilisation. This evidence is consistent with country information which indicates that in [Years] the family planning authorities were applying significant pressure on couples to adhere to the family planning regulations in force at that time and this included pressure to undergo sterilisation.
The Tribunal has listened carefully to the applicant’s evidence and accepts that in [Year] the applicant underwent a forced sterilisation procedure which caused her physical and mental distress. The evidence she gave regarding the procedure was detailed and appeared to have been recalled from her own experience of that procedure. Further it is consistent with country information on the practice of forced sterilisation to ensure compliance with family planning regulations in force in [Year].
In 2007 DFAT described China’s national family planning policy as ‘fundamentally consist[ing] of three elements: advocating delayed marriage and delayed child bearing, advocating one child per couple, and allowing eligible couples to have a second child’.[9] The official sanction for family planning violations, that is, for having unapproved children, is a social compensation fee.[10] These fees applied for violations such as having a child out of wedlock and for having more than the approved number of children. Fees varied according to a range of factors such as province, type of violation, personal income, average income of the area, and so on
[9] Department of Foreign Affairs and Trade 2007, DFAT Report 691 – RRT Information Request CHN32173, 31 August
[10] Population and Family Planning Law of the People’s Republic of China (China), art 41, promulgated 29 December 2001 (effective 1 September 2002) Chinese Government Official Web Portal < US Department of State 2012, Country Reports on Human Rights Practices for 2011 – China, 23 May, Section 6 <
In order to meet family planning targets, officials resorted to such measures as forced abortion and sterilisation. Freedom House reported in 2013 that ‘Compulsory abortion and sterilization, though less common than in the past, still occur fairly frequently’.[11]
[11] Freedom House 2013, Freedom in the World 2013 – China, 16 January <
The US Department of State similarly noted in 2012 in its report on human rights practices in China that the Chinese ‘coercive birth limitation policy’ had ‘in some cases result[ed] in forced abortion or forced sterilization’.[12]
[12] US Department of State 2012, Country Reports on Human Rights Practices for 2011 – China, 23 May, Section 6 <>
The US Department of State reported in February 2014 that „[i]n the case of families that already had two children, one parent was often pressured to undergo sterilization‟.[13]
[13] US Department of State 2014, Country Reports on Human Rights Practices 2013 – China (includes Tibet, Hong Kong, and Macau), 27 February, p.54, Section 6
Current country information indicates that forced sterilisation did occur in various parts of China where couples had breached the family planning regulations but from 2014 the practice was not common[14].
[14] DFAT Country Information Report People’s Republic of China December 2021
However, while the Tribunal accepts the applicant underwent a forced sterilisation it does not accept the applicant’s evidence that she became a member of the underground Roman Catholic church in Fujian as claimed and that attendance at a gathering was the reason for the sterilisation.
The Tribunal does not accept the applicant became friendly with a midwife present at her daughter’s birth who introduced her to an underground Roman Catholic church in Fuqing City.
The applicant’s description of the incident in [Year] which immediately preceded her sterilisation is not consistent with country information on the treatment of members of the underground Roman Catholic church in Fujian Province in [Year]. The country information from a number of sources indicates that authorities had traditionally taken a tolerant approach to the underground church and its ordinary churchgoers.
Further the claimed circumstances of her detention and conveyance to the Family Planning Station appears to be inherently unlikely. The Tribunal does not accept that if the applicant had been detained for reasons of attending an illegal church gathering she would then somehow be taken by police to the Family Planning station in Fuqing where a sterilisation procedure took place. She claimed that the agencies, that is, the police and the family planning office were interrelated, however, there is no country information which would support that claim. The Tribunal does not accept that as a result of being randomly picked up and detained she would then be immediately transferred to a facility which undertook sterilisations using anaesthetics and medical personnel and that she was forcibly sterilised as a result of her detention.
The Tribunal does not accept that the applicant attended, or attempted to attend, a Roman Catholic church in [City, Country 3]. The applicant could not remember the name of the church or where it was located despite living in [Country 3] for about eight years. Further her evidence regarding attendance was vague and absent of any substance. As put to the applicant at hearing the country information indicates there several Roman Catholic churches in [Country 3]. There are two Roman Catholic churches in [City] and several in other areas of [Country 3][15]. Despite characterising herself as a committed Roman Catholic she could not explain what steps she took to continue practising her religion or maintain a religious life in [Country 3] in circumstances where she claimed she had left her family and life in China to enjoy freedom of religious belief. While the Tribunal accepts that church attendance may have been difficult due to the security situation the Tribunal notes that the applicant lived and worked in [Country 3] for many years and that her work duties included entertaining local customers, collecting cash, organising sales and deliveries which would have involved significant interaction with members of the community in [Country 3]. The Tribunal does not accept her explanation for not regularly attending church.
[15] Special Churches in [Country 3] [URL].
The Tribunal’s finding that she did not attend a church in [Country 3] also supports the Tribunal’s finding that the applicant had not been a member of the underground Roman Catholic church in China.
The applicant gave evidence that she did not attend a Roman Catholic church when she visited [Country 4] for a period of over two and a half months in 2016 prior to coming to Australia. Despite claiming to be a committed and devoted Roman Catholic who had left China to exercise her religious beliefs she did not take any steps to find or attend a Roman Catholic church in [Country 4]. She claimed her cousin was a Christian[16] so she did not attend a Roman Catholic church. As stated by the applicant, the performance of sacraments is important to committed Roman Catholics and the applicant’s failure to attend church or at least take steps to find a church is not consistent with her claim that she was a member of the underground Roman Catholic church in China.
[16] A term often used in China for Protestant Christians.
As the Tribunal does not accept that the applicant was a member of the underground Roman Catholic Church in China and does not accept that she was detained in 2018 for reasons of attendance at an underground Roman Catholic church gathering it also does not accept that she was arrested and detained during her visit to China in 2011. It does not accept that on [Date] she was attending a religious ceremony when she and other attendees were detained, fined and released. It does not accept that her husband told her that she had to give up her religion, go abroad or get a divorce. It does not accept she left for [Country 3] in 2011 to seek freedom of religious belief.
The applicant’s arrival in Australia.
In the applicant’s statement of 1 July 2016, she stated that at the end of 2015 her cousin who lives in [Country 4] invited her to visit and she lodged a [Country 4] tourist visa application. [In] March 2016 she left [Country 3] and returned to China to visit her parents. She then left China on [Date 1] April 2016 and arrived in [Country 4] on [Date 2] April 2016. In [Country 4] she applied for an Australian tourist visa which was granted. She arrived in Australia [in] June 2016.
At the Tribunal hearing of 20 July 2023 the applicant stated that prior to travelling to [Country 4] in 2016, she first travelled to China where she stayed for about three weeks visiting family in her home village and in Fuqing City.
She stated that before she arrived in Australia, she had been in [Country 4] visiting a cousin for about a month. She then corrected her evidence and stated she had been in [Country 4] for about two and a half months. She stayed with her cousin and was not working through that visit. Her cousin lived in a large city, but the applicant could not remember the name and could not remember if it was [in one or another of two regions of Country 4]. When suggested it might be [City], she stated that it could have been. She did not attend a Catholic Church when she was in [Country] because her cousin was a Christian[17] and did not go to the Catholic Church. As it was only a short visit the applicant did not go to church.
[17] In China it is common to refer to Protestant Churches as Christian Churches to differentiate them from the Catholic Church.
She arrived in Australia [in] June 2016 on a tourist visa. The Tribunal questioned the applicant about her intention when she arrived in Australia. She stated her original intention was to visit only but when she arrived she observed that it was free in Australia particularly for religious belief, she decided to stay in Australia.
The Tribunal asked the applicant, if she had intended to visit only, what her intention was when the visit ended. Despite asking this question a number of times the applicant would not give a responsive answer. The Tribunal it to her that it appeared she had decided to come to Australia for the purpose of applying for protection. She agreed she had come for that purpose.
When asked why she had not applied for protection in [Country 4] she stated that her cousin had assisted her with her visit visa for [Country 4] and would not have been happy if the applicant had applied for protection in [Country 4] because it may have affected her cousin’s status. She stated that her cousin had suggested that she should try to apply for protection in Australia if she could get an Australian tourist visa.
Has the applicant been attending a Roman Catholic Church in Australia?
In her statement of 1 July 2016 the applicant claimed that after she arrived in Australia, she has been attending church activities organised by the [Suburb 1] Chinese Catholic community.
Since applying for review, and as set out above, the applicant has provided a number of letters, statements and photographs which relate to her claims that she has been attending [Parish] Roman Catholic Church in Sydney.
At the Tribunal hearing of 20 July 2023 the applicant gave evidence that when she first arrived in Australia, she did not have any contacts and did not know anyone. She stated when she was in [Country 4] her cousin helped her book a room at a hostel in [Suburb 2]. When she arrived at the airport in Sydney, she took a taxi to [Suburb 2].
She claimed she went to a local Chinese supermarket and bought a Chinese newspaper to look for jobs. She also asked about the location of a local Roman Catholic Church. She was told to go to a Chinese area on a Sunday and she could find people going to church. She claims she took a train on a Sunday and another Mandarin speaking passenger told her about a Roman Catholic church in [Suburb 1].
The Tribunal noted that she had made an application for protection not long after she arrived in Australia which suggested that she had intended to do so before she arrived. She stated that she had spent so many years commuting she was always searching for a country with freedom of religious belief. She stated someone at the church in [Suburb 1] gave her the telephone contact of someone who could help with an application for protection.
She claimed she first started attending the church at [Suburb 1] within a week of her arrival in Australia. The Tribunal put it to her that she had claimed she started attending church on 12 June 2016 and wondered why that date stood out. She stated she had been told the location of the church on that date.
The Tribunal noted that she had provided letters from a number of people which stated that she had regularly attended [Parish] at [Suburb 1] since 2016. Some of those letters stated that she had told them she had been attending since 2016 and others stated they knew she had been attending from 2016.
The applicant and the authors of her letters of support stated she has been regularly attending church, including Sunday services and Friday scripture and Bible class. She stated that during these sessions the group discussed the gospels and also talked about their daily lives. She stated they also discussed current Chinese policies and the suppression of religion in China.
The Tribunal has considered the evidence of the applicant and the material provided to support that evidence and accepts that the applicant has been regularly attending [Parish] Roman Catholic church in [Suburb 1], Sydney since 2016 and has attended Sunday services, Mass and other church activities. It finds that since she first started attending church in Sydney she has acquired a considerable amount of knowledge about Catholicism and particularly the situation for Roman Catholics in China.
The applicant spent some time talking about the latest political changes in China, the impact on the official and underground Roman Catholic Church and the different status and features of the official and underground churches. She also provided submissions which dealt in detail with the current situation for Christian churches in China. She claimed that if she returned to China she would not attend an official Catholic Church and she gave reasons for her stance.
The Tribunal discussed country information on the situation for the Roman Catholic Church in China, noting in particular the agreement entered into by the Vatican and the Chinese government in 2018 and those reports which indicate that the Chinese government is more interested in non-compliant members of the underground clergy rather than ordinary churchgoers[18].
[18] China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA) Immigration and Refugee Board of Canada 10 May 2022
The country information indicates that in September 2018, the Chinese Communist Party and the Vatican came to an agreement on the appointment of Catholic bishops after years of negotiations.[19] The Vatican recognised the legitimacy of seven state-appointed bishops and re-admitted them into the church, and agreed on a process for the appointment of bishops in which the Holy See will approve or veto candidates nominated by Beijing authorities after an initial diocesan election.[20] The agreement has been criticised by those who fear it could divide Catholics in the country and cedes too much power to Beijing. During 2018 and 2019, authorities in Fujian province have attended the premises of various unregistered churches and requested that they register their churches with the Chinese Patriotic Catholic Association.[21]
[19] ‘A step towards full diplomatic relations between China and the Vatican’, The Economist, 25 September 2018, ‘China cracks down on religion, crosses burned at Christian churches, Xi Jinping photos installed’, Australian Broadcasting Corporation, 25 September 2018,
[20] Pope defends China deal on bishops, says he will have final say on names’, Reuters, 26 September 2018, ‘What's new with the Vatican-China deal?’, UCA News, 27 September 2018, ‘Pope admits underground Chinese Catholics will suffer after Vatican deal with Beijing’, Associated Press, 26 September 2018
[21]Vatican signs historic deal with China – but critics denounce sellout’, The Guardian, 23 September 2018, 20190123131200; ‘With Vatican Talks and Bulldozers, China Aims to Control Christianity’, The New York Times, 24 September 2018

The Tribunal put it to the applicant that since the agreement the Vatican had encouraged clergy and churchgoers to register with Chinese authorities and has encouraged compliance[22]. She stated the Pope has never visited China and does not understand the situation for churchgoers. She also stated that the 2018 agreement had not been disclosed to the public and thus the public could not rely on this agreement. She also stated the bishops in the official church had not gone through the holy ceremonies of the church to enable them to be ordained as bishops.
[22] China Treatment of members of house churches including Protestant, Catholic and other Christian house churches by the authorities; the enforcement of the revised regulation on religious affairs in 2018 (2019 -October 2021); Research Directorate Immigration and Refugee Board of Canada 18 October 2021 P 3.1.1
While the agreement reportedly allows the Vatican to veto nominations of bishops by the Chinese government reports indicate that underground clergy remain under pressure to register and face detention, surveillance and removal from their churches if they do not register and seek approval from Chinese authorities. However, in a 2021 Canadian research response[23] sources reported that authorities treat house church leaders differently from members. One of the sources suggested that this represents a strategy to win over the vast majority of people and isolate those with greater responsibility. Sources also indicate that generally authorities in South, South-eastern China and coastal areas have a more relaxed attitude to enforcing religious regulations than the north or northwest areas of China, although this appears to be decreasing in some areas.
[23] China Treatment of members of house churches including Protestant, Catholic and other Christian house churches by the authorities; the enforcement of the revised regulation on religious affairs in 2018 (2019 -October 2021); Research Directorate Immigration and Refugee Board of Canada 18 October 2021 P 3.2
The Tribunal discussed country information from the Canadian Immigration and Refugee Board to the effect that church services of the official church in China are the same as those outside China, but they do not feature the Pope. The applicant agreed but stated that the services should mention the Pope.
At the end of the hearing the applicant stated that she felt sorry that she had lived outside China for so many years due to her religious beliefs. She felt this had been hard on her family members. She claimed that things were tougher in China for Christians but if there was a relaxation of policy, she would be willing to return. She stated she was not remaining in Australia just for work as she could make money in China. She stated she could still work in her former occupation as [an Occcupation] if she returned.

100. In her final remarks she stated that if she had proper status, she could look for work. The Tribunal pointed out she had given evidence that she was currently working. She stated if she had proper status she could find a decent job in the public service such as work at a hospital or at the airport.
Does the applicant meet the refugee criterion?
101. Taking into account the findings set out above and the country information referred to in this decision and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future, she faces a real chance of persecution for reasons of her religion, imputed political opinion or membership of a particular social group, that is, person affected by family planning policies.
102. As set out in the above findings, the Tribunal does not accept that the applicant was a member of the underground Roman Catholic Church in China. It does not accept she was baptised as a Roman Catholic in China as claimed.
103. It also does not accept that the applicant was detained in 2008 and as a consequence of her claimed detention that she was taken to be forcibly sterilised in the Family Planning station in Fuqing City. While the Tribunal accepts that the applicant was sterilised in 2008, and that it is possible she was forcibly sterilised it does not accept that this arose from the claimed detention in 2008.
104. The Tribunal also does not accept, for reasons set out earlier in this decision, that the applicant was detained and fined in 2011 during a visit to China for reasons of her attendance at an underground Roman Catholic church gathering.
105. The Tribunal accepts that the applicant has been regularly attending [Parish] Roman Catholic Church since 2016.
106. She claims, but the Tribunal does not accept, that if she returned to China she would attend an underground Roman Catholic church group and would not attend the official Catholic Church.
107. The applicant has characterised herself as a committed Roman Catholic who would not under any circumstances attend the official Catholic Church in China for the reasons she gave at the Tribunal hearing and in her submissions. However, the Tribunal considers that her background and past conduct is not consistent with that characterisation. The applicant claims that she was a practising and committed Catholic and that she left her life and family in China for this reason but then did not regularly attend church or make other arrangements for completing her religious obligations while she lived and worked in [Country 3] for eight years and then in [Country 4] for two and a half months.
108. Despite this conduct, she gave evidence that as soon as she arrived in Australia, she immediately found the location of a Catholic Church in Sydney with a large ethnic Chinese congregation and started attending from her first week in Australia. The Tribunal considers that she made a deliberate and conscious plan to join a Roman Catholic congregation in Australia to support claims for a protection visa and it considers she planned to do this before she arrived in Australia.
109. The applicant worked in [Country 3] for a number of years and gave evidence that her husband and immediate family have been dependent on her income for many years. She also gave evidence at the Tribunal that if she had proper status in Australia, she could look for decent work. The Tribunal considers that the main reason she is seeking a protection visa is to obtain a permanent migration status in Australia and to further her economic interests.
110. The Tribunal does not discount her attendance at church as solely intended to support claims for refugee status. It accepts that after a relatively long period of attendance that she may have found a group of churchgoers who are emotionally supportive and provide her with social contacts. She had given evidence that she does not have family in Australia and her church friends would provide her with company and support.
111. Even if she has absorbed, or engaged with, the Christian values of the church she is attending the Tribunal does not accept that she will return to China and attend an underground Roman Catholic church. The Tribunal accepts that there may be some underground Catholics in China who are unwilling to attend the official Catholic Church despite the Vatican’s encouragement to clergy and churchgoers to comply with the official church in China but the applicant does not fall into this category. The Tribunal does not accept she has been a member of the underground Roman Catholic Church in China for reasons set out above.
112. The Tribunal has also considered whether the applicant’s attendance at a Roman Catholic church in Australia from 2016 onwards would put her at risk of serious harm if she returned to China now or in the foreseeable future. There is no evidence or country information which indicates that ordinary churchgoers who attend a Roman Catholic church in Australia would be harmed by Chinese authorities on their return for that reason alone. The Chinese government does not prohibit attendance at an official Catholic Church in China and Catholicism is one of the religions recognised by the Chinese government.
113. DFAT notes in its most recent country report on China[24]
[24] DFAT Country Information Report China 22 December 2021
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.
….
Catholics
3.36 The Chinese Catholic Patriotic Association (CCPA) represents the official Chinese Catholic Church. Globally, matters of Catholic doctrine, ecclesiastical law and the appointment of leaders (bishops) are usually controlled by the Catholic hierarchy, headquartered in the Vatican. The CCPA does not recognise the authority of the Vatican. In the past, the Vatican has had some input into the selection of bishops but a number of Vatican-approved bishops also operate ‘underground’, separate from the CCPA. For some Chinese Catholics, allegiance to the Vatican Catholic Church hierarchy is an important part of faith because of their belief in a succession of authority that can be traced back to St Peter, a contemporary of Jesus. For those Catholics, Party-appointed priests and bishops are unable to validly confer sacraments that are central to their beliefs. On this basis they refuse to participate in religious activities associated with the CCPA.
3.37 In 2018, the Vatican and Beijing signed an agreement that would regularise the status of some Chinese-appointed bishops so they would be viewed as valid by the Vatican. In return, those ‘underground’ Catholic churches would join the CCPA. Most of the details of the deal are not known. The deal was extended in October 2020 for a further two years, allowing for more bishops to be recognised.
….
3.40 DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination.

114. While there has been a strengthening of restrictive religious regulations by the Chinese government in recent years there are many millions of Christians in China (estimated to be between 100 and 150 million) [25] . There is no evidence or country information before the Tribunal which indicates that membership of a Roman Catholic Church in Australia would attract any adverse attention by Chinese authorities on return to China. As the Tribunal does not accept that the applicant has been a member of an underground congregation in China and does not accept she has been detained by Chinese authorities for attendance at underground gatherings it does not accept she will face a real chance of persecution for reason of attendance at a Roman Catholic Church in Australia if she returns to China now or in the foreseeable future.
[25] UK Home Office Country Policy and Information Note; China; Christians November 2019 2.4.1
115. The Tribunal accepts that the applicant may have undergone a forced abortion and sterilisation in the past but there is no claim, and no evidence, which would suggest that the applicant might be at risk of future harm relating to family planning matters. The applicant stated that she had paid a social compensation fee in relation to the birth of her second child and that child has household registration. Further the country information indicates that the situation in China has changed considerably in the past few years. DFAT notes in its latest report[26] that “Enforcing child limits has become a low priority for government.”
[26] DFAT Country Information Report China 22 December 2021 p.3.121
116. For the reasons set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
117. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
118. The Tribunal has taken into account its findings on material questions of fact, its view of the applicant’s future conduct and relevant country information.
119. The Tribunal accepts that the applicant may have undergone a forced abortion and sterilisation in the past but there is no claim, and no evidence, which would suggest that the applicant might be at risk of further harm relating to family planning matters. Further the country information indicates that the situation in China has changed considerably in the past few years. DFAT notes in its latest report[27] that “Enforcing child limits has become a low priority for government.”
[27] DFAT Country Information Report China 22 December 2021 p.3.121
120. The Tribunal does not accept that the applicant was a member of an underground Roman Catholic congregation and does not accept she was detained and mistreated for reasons of attendance at underground Roman Catholic gatherings in 2008 and 2011.
121. The applicant accepts that the applicant has been attending [Parish] Church in [Suburb 1] since 2016 and that she had regularly attended services and participated in church activities. However, there is no country information which would indicate that if she returned to China the applicant would face a real risk of harm for this reason alone.
122. The Tribunal considers that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest she will be subject to significant harm, for any reason, if she returns to China.
123. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to that there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
124. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

127. The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT
Criteria for a protection visa
128. 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.
129. 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).

131. 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

133. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4121

29 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice