1713762 (Refugee)

The case concerned a protection visa application made by a female citizen of China and her Australian-born daughter. The applicant claimed she feared persecution upon return to China due to her involvement with the "Local Church," a non-recognised religious group. She alleged that during a return visit to China in 2009, she provided Bibles to friends, who were subsequently arrested and tortured, implicating her in their activities. The applicant had been in Australia since 2008, initially on student visas, and became an unlawful non-citizen in 2010 before applying for the protection visa in 2015. The decision was made by Penelope Hunter, a member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing significant harm as a necessary and foreseeable consequence of removal. This involved assessing the applicant's credibility, the genuineness of her fear of persecution based on her religious beliefs and activities, and the availability of effective protection in China, considering the country information provided by the Department of Foreign Affairs and Trade. The Tribunal was also required to consider Ministerial Direction No. 84 and the Refugee Law and Complementary Protection Guidelines.

The Tribunal's reasoning focused on the applicant's religious activities and the consequences thereof. While acknowledging the applicant's past involvement with the Local Church and her current active participation, the Tribunal found that the evidence did not establish that she would be persecuted for reasons of religion under section 5J of the Act. The Tribunal noted that the applicant had disengaged from her faith during a period of personal difficulties and that her reconnection with her faith and church community occurred during a period of personal hardship, raising questions about whether her conduct was solely to strengthen her claim. Furthermore, the Tribunal considered that the country information indicated that proselytising and religious education of children were not permitted in China, but did not necessarily equate to persecution for mere attendance or membership.

Ultimately, the Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy section 36(2)(a) of the *Migration Act*. This indicates that while the Tribunal did not find the applicant met the refugee criterion, the case was not definitively dismissed, allowing for further assessment or a different approach to the protection obligations.