1603167 (Refugee)

This matter concerned an application for a protection visa by a couple from China. The first applicant claimed she was at risk of harm due to her adherence to Christianity and attendance at an underground church, detailing an incident where police arrested her aunt during a bible study. The second applicant's claim was dependent on his wife's application as a member of the same family unit.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) or (aa) of the *Migration Act 1958* (Cth), and whether a section 438 certificate, which purported to restrict the disclosure of certain information, was valid. The Tribunal was required to consider the applicants' claims of past persecution and the risk of future harm in China, as well as relevant country information and policy guidelines.

The Tribunal found the section 438 certificate invalid, following the Federal Court's reasoning in *MZAFZ v MIBP*, which held that citing "internal working documents and business affairs" was insufficient to justify non-disclosure. The Tribunal then considered the applicants' claims, finding that while the first applicant did not satisfy the criteria for a protection visa under section 36(2)(a) or (aa), the second applicant was a member of the same family unit as the first applicant.

Consequently, the Tribunal remitted the matter for reconsideration with directions that the first applicant satisfies section 36(2)(a) of the *Migration Act*, and the second applicant satisfies section 36(2)(b)(i) on the basis of being a member of the same family unit. This outcome means the second applicant would be entitled to a protection visa if the remaining criteria are met.