1516465 (Refugee)

The Tribunal considered protection visa applications made by three applicants, identified as Applicant 1, Applicant 2, and Applicant 3. The dispute concerned whether the applicants had a well-founded fear of persecution or faced significant harm if returned to China, based on their religious beliefs and past activities. Applicant 1 had a history of involvement with Falun Gong and previous detention in China. The applicants claimed to have converted to Christianity in Australia and expressed fear of returning due to their new religious adherence.

The primary legal issues before the Tribunal were to determine if the applicants met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Alternatively, the Tribunal was required to consider if the applicants met the complementary protection criterion under section 36(2)(aa), which involves assessing whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, the applicants would suffer significant harm. The Tribunal also had to consider the meaning of "significant harm" as defined in sections 36(2A) and (2B) of the Act, and whether any effective protection measures were available to the applicants in China.

The Tribunal's reasoning focused on the evidence presented, including statements from the applicants, supporting letters from religious community members and leaders, baptism certificates, photographs of church activities, and country information from the Department of Foreign Affairs and Trade. The Tribunal found that the applicants had established that they were Christians who were members of a specific church in Australia. Crucially, the Tribunal considered the provisions of section 5J(3)(c)(i) of the Migration Act, which states that a person does not have a well-founded fear of persecution if they could take reasonable steps to avoid persecution by altering their behaviour, unless that alteration would conflict with a characteristic fundamental to their identity or conscience, or require them to renounce a religious conversion or conceal their true religious beliefs. The Tribunal was satisfied that the applicants had demonstrated a genuine conversion to Christianity and that returning to China would require them to conceal their faith, which would conflict with fundamental aspects of their identity and conscience.

The Tribunal concluded that each of the applicants was a person in respect of whom Australia had protection obligations and therefore satisfied the criterion set out in section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy section 36(2)(a).