CAT/C/51/D/434/2010
unregistered churches by 2025 and persecution, detention and harassment of different
religious groups in China.
5.11 In relation to the State party’s submission that the removal of the complainants from
Australia would not in itself constitute inhuman or degrading treatment or punishment, as
the State party immigration authorities routinely conduct assessments on individuals’
fitness for travel prior to removing them, the complainants note that the Department of
Immigration and Citizenship has disregarded the medical reports of 26 June and 28 June
2013 by an expert clinician in psychiatry, Dr. M. R., in which it was noted that due to the
deterioration in the complainant’s mental health and his wife’s mental health, they were not
fit to travel, nor to report to the Department. It is stressed that the complainants are
suffering from severe psychiatric disorders, which require the care of a treating psychiatrist
and significant medication and which have deteriorated over time primarily because of the
continual denial of the Department to grant them protection.
5.12 The complainants note that their mental status has rendered them incapable of
working whilst they have been in the State party. Furthermore, even if there were a
possibility that they would not suffer persecution upon return to China, they would not be
able to relocate to a safe place in China and to receive social resources, due to household
registration and the policy on allocation of resources in China. In addition, the complainants
submit that it is also inhuman to remove them from the State party because their son and
grandchildren reside in Australia.
5.13 As regards the State party’s argument that the main complainant was issued with a
passport and that he and his wife left China in June 2004 without any difficulties or
hindrance, the complainants, by referring to the UNHCR procedures and criteria for
determining refugee status under Convention on the Status of Refugees, maintain that the
existence of a passport may not serve as an indication of the absence of fear. In this
connection, the complainants believe that, in light of the responses of the Department of
Immigration and Citizenship to all the new information presented by the main complainant
with each subsequent request for ministerial intervention, the Department has adopted a
negative approach towards him and would never adopt a positive decision in relation to
him.
5.14 The complainants further express the criticism that the State party authorities did not
consider the statements of support from friends and family concerning the complainant’s
involvement with the Quiets Church and his persecution in China as constituting credible
evidence.
5.15 Further, as concerns the court summons and detention notice provided by the
complainant and the subsequent assessment by the national authorities that these documents
lacked any concrete details to support the main complainant’s claim, the complainants note
that the summons and detention warrant submitted to the national authorities on 5 August
2010 were only issued on 18 January 2010 and 1 February 2010 and that therefore they did
not exist at the time of the earlier hearings. They were submitted within the ministerial
intervention proceedings as evidence of anticipated future persecution, not of previous
detention.
5.16 As to the State party’s submission that the main complainant’s claim for a protection
visa were considered properly and were subject to a “robust process of merits and judicial
review”, the complainants firstly point out that this process involved only two opportunities
to provide evidence of claims of persecution in their country of origin and their claims of
future risk in that country. The first opportunity was at an interview held at the Department
of Immigration and Citizenship, while the second opportunity was at a hearing before a
member of the the Refugee Review Tribunal. They further note that thereafter a court
reviewed the decision that had been adopted in order to determine if an error of law had
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