1714784 (Refugee)

1714784 (Refugee) [2021] AATA 3038 (18 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1714784

COUNTRY OF REFERENCE: China
MEMBER:Luke Hardy
DATE:18 May 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 May 2021 at 10:20am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – unregistered church – police closure of family churches – preaching Christianity in China – Cantonese-speaking churches in Sydney – delay in seeking protection in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 June 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[The applicant, named] and her son, are citizens of China. [The applicant’s son] entered Australia [in] April 2006 on a student visa, which was valid to 15 March 2008. He then became a unlawful non-citizen for the next nine years until he was granted a bridging visa associated with the current protection visa application, which he and his mother lodged on 17 February 2016. [The applicant’s] migration history is somewhat similar, in that she arrived in Australia [in] May 2006 on a three-month tourist visa on which she defaulted by overstaying. She spent around eleven years as an unlawful non-citizen in Australia before being granted a bridging visa in connection with the present application.
The applicants claimed protection in Australia on grounds of being Christians who belong to a church that would be unauthorised and therefore repressed in China. The delegate refused to grant the visas on 15 June 2017, largely on grounds of lack of credibility. One of the factors in the delegate’s decision was that he was apparently unable find independent evidence of a church in Sydney identified by the applicants as the [Church 1]. With a little help from Google Maps, I have found independent evidence of the existence of that church, and of its specific location at [an address in Suburb 1].
There were three attempts to commence hearings in this matter, two of them undone due to the applicants’ adviser having lodged substantial submissions on the morning of the scheduled hearings. The applicants ultimately appeared before the Tribunal on 11 May 2021 to give oral evidence and present arguments. The hearing was facilitated by two interpreters in the Mandarin-English medium.
The applicants’ adviser did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted evidence, the applicants are entitled to protection in Australia as refugees or, if not, on complementary protection grounds.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims to the former Immigration Department (the Department)
The applicants’ claims to the Department are contained in a short statement from [the applicant] who was born in [year] in China’s Guangdong province. She said she lived in Jiangmen city. She claimed that while she was visiting Hong Kong in 2000, she “got the chance to know [a] local Church” in Hong Kong and became “impressed” with its members who she found to be kind and having “so much to offer to the God.” She said she was “touched by their spirit” and “decided to become one of them.” She said it was the biggest thing in her life and that she was so lucky. [The applicant] claimed that when she returned to China she “was delegated” to spread the Christian Gospel, albeit clandestinely as she would not have been allowed to do so publicly. She claimed she first preached to family and friends who, she said, did not believe what she was preaching and warned her that she would be arrested. She did not suggest that she met any serious or significant harm. It appears from her claims that although her fiends warned her of the risk of harm, she received no actual threats of harm.
[The applicant] claimed she came to Australia for the purposes of visiting her son here. In this way, she did not suggest that she fled here for safety from harm. She claimed that while she was here she started visiting the [Church 1] in [Suburb 1], which I note attracts a largely Chinese-speaking congregation and conducts services in Chinese languages. She claimed she joined that church. She claimed that [the applicant’s son] joined the church. She claimed that they were both baptised in 2014 which, I note, would have been eight years after they both arrived in Australia, eight years since [the applicant] became an unlawful non-citizen and about six years after [the applicant’s son] had become the same. [The applicant] indicated that around this time she and her son “both felt” that they should stay in Australia to avoid harm that Christians were facing in China and to commit themselves to the church here.
Appearing to address the issue of delay in applying for protection in Australia, [the applicant] said she “decided to apply [for protection] now [because] I think it is time [and] because we have lost […] faith [in] the Chinese government[.] I think they will never change [their] attitude [towards] the Christian [people in China].”
In the original primary application form, [the applicant’s son] did not cite any past or present employment. He said he attended primary school from [between specified years] and attended junior high school at a “[specialist]” school in Hunan where he and his family lived. He said he commenced his senior high school education in 2006 in Sydney but withdrew from it in 2008.
The applicants submitted no material to the Department in support of their primary application.
Evidence to the delegate
For the purposes of this review application, the applicants submitted a copy of the delegate’s primary decision record which contains an uncontested summary of oral evidence that they gave to the delegate at a protection visa interview in early 2017.
[The applicant] told the delegate she visited Hong Kong in the year 2000, which would have been around five or six years before she left China, evidently legally, for Australia. She said she was not accompanied by [her son]. She said that a friend in Hong Kong took her along to a church one day about a week after she arrived from China. She said she did not know which church it might have been although in retrospect she thought it to have been a Protestant church. She said she went to the church each Sunday and remained in Hong Kong for three months before returning to China. She said that on the eve of her return she “was delegated” by her friend, who suggested she spread the Gospel in China. She was evidently not baptised. She said she preached in China on a weekly basis.
[The applicant] made an evidently new claim to the delegate, saying that she attended an unregistered “family” church comprising 20 members who gathered in a private home in China on a twice-weekly basis and joined its Bible reading and other activities. This claim strikes me as being quite different from her original evidence because it says that [the applicant] situated herself amongst believers rather than amongst friends and relatives who did not believe her. In another new claims, she said that she attended this church until it was dismantled in February 2006, which would have been during the month prior to when he son was granted his student visa and two months before she was granted her visitor visa. In her description of the dismantling of the church, [the applicant] said that a Christian crucifix that had hung on the front door of the house door for as long as she had attended it was removed. In another new claim, [the applicant] told the delegate that the church group she attended had been declared by Chinese authorities to be a “cult.”
Asked why these claims did not appear in her original application, [the applicant] did not appear to answer the question on its point: rather, she said that the church had for several years been required to register and that it had only survived on donations. Responding to independent country information about the Chinese authorities at that time generally not preventing small gatherings of the type she described in family homes, [the applicant] said the authorities suddenly became very strict in 2006. I note that there has been a hardening of church regulation in in China since around 2017, and that [the applicant] did not provide independent evidence in support of her claim about authorities in Guangzhou suddenly adopting strict measures in or around 2006.
[The applicant] told the delegate that she started attending [Church 1] after she arrived in Australia. She said she was living in [Suburb 2] at the time but had a friend who lived in [Suburb 1] who introduced her to that church. She was evidently vague about the address of the church because, she said it had changed addresses once since she started attending and because she moved into and out of [Suburb 1] and then back there again in the years between joining the church and the time of the delegate’s interview.
The delegate interviewed both applicants on their subjective understanding of the Bible, on the basis that both had claimed to have spent several years attending regular Bible reading sessions. The applicants were able to name five of the books in the New Testament. The delegate, however, appeared to draw negative inferences from this. To be fair, it is hard for me quite to construe, let alone be certain of, the context in which the information was given or requested. The delegate also asked the applicants to name their church’s sacraments other than baptism and drew negative inferences when they were unable to do so. Again, it is not clear what information could have underlain the delegate’s questions, as he had not been able to locate evidence of the existence of [Church 1], let alone knowledge of its specific rites; in any event, whereas a finite number of “sacraments” are more common to the Catholic and Anglican churches, along with some other Protestant churches, the name of [Church 1] appears clearly to set it apart as an evangelical church, which means that the rites that it might call its own sacraments might be somewhat unique to it. I draw no negative inferences from what the delegate regarded here as shortcomings in the applicants’ religious “knowledge,” as it were.
The delegate went on to ask the applicants about “the five major milestones” in the life of Jesus. Again, answers to such a question will always be subjective. Some, for example, may include “milestones” that others omit, or not go to, or stop at, five. In ay event, [the applicant] only named the crucifixion. The delegate drew a negative inference from this, which does not seem completely unreasonable, since the Resurrection is arguably as central to the Christian message, if not more so; but these things are all subjective.
Asked why it took so long for them to be baptised, [the applicant] told the delegate that she was baptised in 2010 and that her son was baptised in 2014. This evidence appeared inconsistent with what she had said in her original statement of claims, in which she had said she and her son were both baptised in 2014. [The applicant] evidently said she had given her baptism certificate to her lawyer, whereupon the delegate put to her that she and her son had originally, and still, claimed to be unrepresented.
[The applicant] told the delegate she was not harmed for attending a family church in China, although the hed of the church had been arrested just before she left for Australia. This again appeared to be a substantial new claim that was not included in her original statement.
The delegate evidently put to the applicants, on the basis of independent country information, that there were no theological differences between registered and unregistered churches. Asked if she and her son could attend a state-registered church in China, [the applicant] evidently said that she would not do so because of state influence on such churches and because one of her friends, who had tried to attend such a church “did not like it.”
Asked what would happen to the if they returned to China and attended another small family church, [the applicant] said that one of her friends who had attended the church she attended had disappeared. Again, this was a new claim that she had not made in her original statement to the Department.
The delegate raised the potentially relevant issue of the applicants’ apparently long delay in bringing their protection claims to light in Australia: a period of about eleven years, whereas all the reasons for seeking asylum purportedly existed at or soon after the time of their arrival here. In reply, [the applicant] evidently said that she was illiterate and had had little education China. I note that this claim does not appear to sit with evidence she provided in her original application form, in which she claimed to be able to read and write Chinese. She also claimed to have completed her primary education and, although this did not leave her as educated as her son, they were here together all this time.
The applicants evidently told the delegate that deficiencies in their evidence were due to their having passed material to their lawyer which did not eventually accompany their application. The delegate put to them that they were unrepresented, as they had not nominated anyone in the role of representative. I note that they did not identify anyone as having helped them with their original protection visa application.
Evidence submitted to the Tribunal
The applicants submitted various items of supporting material to the Tribunal.
A 9 March 2021 submission from a mor recently-engaged migration agent provides references to actions by Chinese state authorities against various unauthorised churches around China in recent years in addition to the closure of formerly state-authorised “Sunday schools” for children.
A 10 March 2021 statutory declaration from [the applicant] declares that she joined the [Church 1] in 2011, which struck me as a new claim that was inconsistent with earlier evidence about having joined it quite soon upon arrival in Australia and, in version of events at least, about having been baptised in that church in 2010. In her declaration, [the applicant] criticises what she calls the Chinese government’s unreasonable control of the state-authorised Protestant church. The declaration discusses the treatment of unauthorised Christian congregations in different parts of China and discusses the teachings of the Dalai Lama in contrast with Maoism, Marxism-Leninism and other dogmas underpinning the power of the Chinese Communist Party.
[The applicant] submitted a photocopy of what purports to be her baptism certificate: it is dated [a day in] June 2011; that is to say, it is not dated either 2010 or 2014, as elsewhere claimed. The applicants also submitted a copy of a baptism certificate apparently pertaining to [her son]: it is dated [a day in] June 2014.
The applicants submitted a certificate of Bible study made out in the name of [the applicant], stating that she commenced a period of Bible study in February 2018 and completed it in February 2019.
The applicants submitted a photocopy of what appears to be an order of service for [a day in] February 2017, and also a photocopy of a February 2019 church activity roster in which [the applicant’s] name evidently appears.
The Tribunal received a short letter of reference from a pastor of [Church 1] stating that [the applicant], who was baptised [in] June 2011, and who had attended (unspecified) Bible study, prayer and choir activities, was a diligent person of good character. The author of the letter is evidently aware of her protection visa application, expressing the wish that she be allowed to remain in Australia. There is a similar letter in echoing language for [the applicant’s son], with the exception of his baptism date being given as [a day in] June 2014, consistent with other evidence provided in this matter.

The applicants submitted ten evidently very recent colour photographs of them participating in what appear to be church activities.
[The applicant’s son] submitted additional material in April 2021. In a short 7 April 2021 statement, he said:
Hello Tribunal member
My name is [name]. Now I live in [Suburb 1] with my mother. I serve in the church with my mother. I apologize for making my statement so late. Because I have never wanted to criticize my motherland, but recently I suddenly found out that I was wrong. I am very disappointed with China now. Not only did it not change. Instead, it became worse. China is now more unreasonable and domineering than before. We really can't go back to China, because I have deeper understanding about China and the Communist Party. I attended [a named vocational college] in [year]. After graduation, I worked as a [trainee] at local [agency] for 2 years. I know the situation inside and [saw how police] deal with [difficult] people. I have seen many things from personal experience. How did our police station personnel inquiry them? [Where police] caught a suspect who was stealing something, then he would be asked if he pleaded guilty, if he did not plead guilty, he would be tortured in various ways. For example, pour water on him, then shut into the room, and then turn on the fan. Also, pour water on the suspect's head and then use an electric stick to prod the suspect until they pleaded guilty. The fines for gambling could be bargained, gave money and let go. It's the same with catching a bewitched [drunk?] boy in a fight. If he's an acquaintance or have money, just let go, and if he's not an acquaintance or have no money, shut him up. I have seen too many injustices. I no longer had ambition to [work in this field] at all. There are really no freedom and human rights in China. What is happening in China now? I believe the tribunal member is also very clear. Just look at how they treat Xinjiang and Hong Kong. The United States, Europe, and Australia condemned China. China is now an enemy of the whole world. So we can't go back. My mother and I have lived in Australia for fifteen years. We are already settled here. We enjoy freedom and human rights here. And the people here are very nice. We really can't go back. Because I know how China will treat my mother and Christians. I plea the tribunal member can let us stay.
[The applicant’s son] submitted untranslated evidence of what appeared to be a personal document identifying him as a student at the junior high school he attended in China. The second attempt to conduct a Tribunal hearing in this matter was adjourned to given the applicants time to have the document translated.
[The applicant’s son] submitted what appear to be two photographs in which he is featured in alternate [school] uniforms.
I note that [the applicant’s son] made no mention of the “[named vocational college]” in his original application but, rather, referred by name to a different school. He also made no reference to having been [in this trainee position], as suggested in the above-cited statement.
Evidence given at the Tribunal hearing
Initially, I took evidence from [the applicant] and [the applicant’s son] separately. [The applicant’s son] waited outside the hearing room while [the applicant] gave her oral evidence, and [the applicant] sat at the back of the hearing room while [the applicant’s son] gave his. After a fifteen-minute adjournment, I discussed their evidence with both of them together.
[The applicant’s] evidence
[The applicant] said that prior to coming to Australia, she lived in Jiangmen with her husband and another son, whereas her other son, the applicant [the applicant son], lived and schooled in Hunan Province [between specified years], when he left China to complete his secondary education in Australia. She said her husband travelled with [her son] on his student visa as a parent/guardian. Amongst them, it appears, it was not decided that she should use the opportunity to leave China as [her son’s] parent/guardian. It was evidently left for her to apply for a visitor visa after her husband and son had left China and come here later in the event of the visa being granted (which it was).
[The applicant] told me she visited Hong Kong in 2000 for one week to visit and stay with her [sister]. She said her sister worked in Hong Kong as [an occupation] at [an employer]. She said she did not know anyone else there. She denied having stayed in Hong Kong for three months, suggesting this was an error on the part of the delegate. I accept that she visited Hong Kong for a week.
[The applicant] claimed she accompanied her sister’s neighbour to the Hong Kong church she claims to have visited. She said she only went once and only spent two hours there. She said she only spoke and understood Cantonese at the time. She said the service she attended was in Mandarin and English. She confirmed that at the time she spoke and understood no Mandarin, coming as she did from Guangdong Province near Hong Kong and having attended only primary school there. She said she also said she did not understand any English. She did not suggest having had any comprehensible conversations with any of the congregants of the church, although she indicated that someone told her to go and preach in China on return there.
I asked [the applicant] if she could now remember the name of the church and she said it was called the “[Anglican Church 1].” I put to her that she had not been able to recall the church’s name in evidence to the delegate in 2017. She said that this was because she had still, at that time, only known the English name of the church and did not know how to translate it into her language. She informed me that the interpreter used at the delegate’s interview had been a Cantonese-English interpreter. [The applicant] told me she only learned Mandarin since starting to attend the [Church 1]; more on this topic follows below. Meanwhile, it struck me as odd that she had learned only the English name of the church because she also told me she had not known how to read its name.
I asked [the applicant] to explain to me her spiritual transition, i.e., when and how she first subjectively became a believer in the Christian religion and embraced Christian faith. In reply, she said that she became a genuinely believing Christian in 2000 while she was in the Anglican church in Hong Kong. I expressed surprise as she was only there for two hours watching people engage in a ritual the words of which she could not even have comprehended. In reply, [the applicant] said she was emotionally affected by the warmth and devotion that she could see. I put to her that she seemed thus far to be describing mere observations of a foreign ritual. I asked her again to tell me about how she went from being subjectively non-religious to religious, and a Christian at that. In reply she said she heard hymns and saw a crucifix with someone hanging on it. She said she came to know that this was Jesus and that he died to “save all Mankind.” It struck me as odd, on the evidence so far, so far that she could have comprehended this, in the claimed circumstances, all within the two hours of being in the church.
I asked [the applicant] who had asked her to preach Christianity on return to China, and she said that the neighbour asked her. [The applicant] said she only preached to friends and family. I put to her that the Anglican Church is generally not regarded as an evangelical church. I put to her that it seemed odd that an Anglican would enjoin her to preach Christianity to non-Christians in China, particularly in the claimed circumstances in which she had had arguably too little time to comprehend anything. In reply, [the applicant] made what struck me as a new claim: she said that her sister’s Anglican neighbour gave her the contact details of a relative in Guangdong Province. She said that relative invited her to attend a small “house church” or “family church” there. Recalling claims she had made in her original application, I put to [the applicant] that this did not sound like she preached in China. She then said she preached to friends and family. I asked her to which family members she had preached, and she said she had preached to her auntie, her husband’s [sister] and a friend. I recall her having said in her original statement of claims that everyone to whom she preached had disbelieved her and warned her against continuing. I asked if her if the people she had just named in response to my question were the only people to whom she had preached and she said, “Yes.” She then changed her evidence after I asked her if she did not preach to her husband and sons: she said she also preached to them back in China.
I asked [the applicant] how she could possibly have been in a position to preach on return to China from Hong Kong after having spent only two hours at a service that she could not have been able to comprehend. In reply, she said she went back to China and joined the “family church.” I put to her that becoming a new follower was not the same as preaching to convert others who were not yet followers. In reply she said that everyone came to that church to worship. I put to her that that in itself would not make her a preacher. In reply, she said she did not have any religious knowledge but she did have passion. She said she cooked lunch for the family church group and helped in its readings from the Bible. I put to her that none of that sounded like preaching; rather, it was merely “joining in.” She then quoted to me something that she said was from one of the Letters to the Romans: “As long as you have a pure heart …” It was not clear to me how long she had been familiar with this verse. However, essentially she was saying, quite reasonably, that sincerity is more important in matters of faith than knowledge. What concerned me more directly, though, was that she did not provide plausible and consistent evidence of having preached to anyone in China. Meanwhile, her “family church” met discreetly, according to her, and did not grow over six years. By her descriptions of this church group, it was not evangelical.
I asked [the applicant] for more information about her family. She said her husband and other son became devoted Christians, back when she was in China, under her guidance. She did not suggest that [the applicant son] had become religious back in China. [The applicant son], for his own part, was later to say the same thing about himself.
I asked [the applicant] when she last saw her husband and she said he had remained in Australia up to about seven or eight years ago. I asked her if her husband had overstayed his parent/guardian visa and she said, “Yes, definitely.” She said that while her husband was here, their other son was being raised by her mother-in-law. In view of the family purporting to be a Christian one that left China around the time their church was labelled a “cult” and closed down, its leader and others meanwhile arrested, I was concerned at their having left one son in China. In any event, [the applicant] did not suggest that he had faced any potentially relevant harm.
I asked [the applicant] if her husband had thought about applying for a protection visa in Australia rather than having to return to China. She said he did try to apply for a protection visa but was scammed by his migration agent, with the result that the application was perhaps not even lodged. She said she was at least unaware of there ever having been a decision made in the matter. [The applicant] said her husband started to prepare his protection visa application around two to three months before [the applicant’s son’s] student visa was due to expire. This would have been almost two years after he had first arrived in Australia, which is arguably after some considerable delay. She said she did not know anything about the intended grounds of her husband’s application and did not know if she and [her son] were intended to be included in it. She said specifically that she did not know if her husband had intended to claim asylum on grounds of ‘religion.” She indicated that whatever she knew about that aborted or unsuccessful application she had gleaned from a friend in 2007, rather than from her husband himself. She indicated that her husband had not discussed the matter with her.
I asked [the applicant] why she did not apply for a protection visa at least for herself around that time, and she said that she did not do so because she could not speak English. This struck me as odd, since not being able to speak English or Mandarin had purportedly not prevented her from becoming a Christian within an interval of two hours in Hong Kong. Bearing in mind that [the applicant] would have been able to access interpreters here, I asked her how it was possible that lack of English would have prevented her from applying for protection, and in reply she said she was busy working at the time in [Town 1] which, she said, was a long way from Sydney. I asked her if she were not more interested in working (illegally) at the time than claiming protection from being deported (as an unlawful non-citizen) to China, and she said she initially did not have a job here, which did not seem to address the question on its point. I reminded [the applicant] that she had come here on a tourist visa which did not permit her to work. In reply, she said that she had sought the visa for the purpose of visiting her son who, I note, had only left China a few weeks earlier. I put to her that her visa had been a visitor visa in the tourist stream. She said that her migration agent back in China had told her the visa would allow her to work. She said she sought work in Australia not knowing any better because she did not speak English or have any friends here. Her evidence generally indicated that she knew she was already an unlawful non-citizen by the middle of August 2006. I infer from this that she must have known she was no longer permitted to work by then in the event of being genuinely mistaken about the conditions of the visa whilst it had still remained valid. Generally, I found [the applicant’s] evidence here quite unsatisfactory.
I asked [the applicant] what her husband and other son are doing in China these days. She said her husband is currently not working due to a back injury. She said her other son had paid for her husband’s back surgery. She said the state had contributed towards paying for this through state health insurance. She said that her husband and other son have encountered no other difficulties. She said they continue to pray in China but do not attend any church there because the house church they attended until 2006 had been closed. She said her husband made one visit to one of the state-authorised Protestant churches but did not like it, telling her it was not like the one house church they had attended up to 2006. I asked her when her husband made that one visit to the state-authorised Protestant church and she said, “Last year.” I asked her why it had taken so many years for her husband to try out that church, and she said it was because the church was located far from where they lived, therefore not being convenient to visit. I asked her if her husband and other son could not just go to the state-authorised church and pray directly to God there, even if they did not like aspects of its relationship with the state. In reply, she said her husband and son preferred just to pray at home.
In this way, [the applicant] said that her husband and brother just pray at home and go about their lives. She indicated that they had come to no potentially relevant harm. I asked her if her husband and other son just prayed at home out of preference or in equanimity, or out of fear of being persecuted; she said they do so out of fear of being persecuted. I have weighed this response alongside [the applicant’s] evidence to the effect that her husband and other son pray at home rather than ging to a church they do not like, that is in any event far from their home, because they prefer to do so.
I asked [the applicant] why she could not do the same as her husband and other son in the event of returning to China. In reply, she said she could not do so because she had vacated or provided a venue for the use of the “house church” back in China in 2005. She said the property belonged to her [sister] who lived in Hong Kong.
It was hard to see how this response addressed the point of my question. [The applicant] may have been saying that her action in 2005 set her apart from her husband and other son no matter what she did not do on return to China. However, as I put to her, this was an entirely new substantive claim, not mentioned in her original application and apparently not raised with the delegate; in any event, this newly-claimed activity had not caused her to flee China when she left, as she had already claimed that her purpose in coming here was simply to visit her son and to avail herself of what she had viewed as an opportunity to work here.
It is also of interest to me that [the applicant] did not say that merely praying at home would amount to repressing some essential vocation to evangelise, but as I looked through the evidence of [the applicant’s] activities with her church, it was evident that none of them appeared to involve any proselytising or outreach beyond the church’s own premises, or group excursions together, with the partial exception of welcoming new attendees at church services.
I asked [the applicant] when she first attended a church in Australia. She said that she first visited a church here in 2011. I put to [the applicant] that, in her original statement of claims, she had said that in 2006 she came to Australia to visit her son and also went to [Church 1] in Sydney. I put to her that she thus indicated that both things happened in the same year. This had also been what she evidently claimed in her oral evidence to the delegate. In reply, [the applicant] said she did first go a different church but because it had been an English-speaking church she only went once. She said it took her five years to find a church that spoke Mandarin. She had not mentioned this church when I asked her to say when she had first visited a church in Australia; I had not specified the [Church 1]. [The applicant’s] reply also struck me as incongruous because at the time she had purportedly not even begun to understand Mandarin: she had previously claimed that from all her time in China she had only been a Cantonese speaker from the Cantonese-speaking province of Guangdong; on this evidence it made no sense that she would spend five years searching Sydney for a church that conducted its practices in Mandarin. [The applicant] said she was not interested in looking for a Cantonese-speaking church because most of the Chinese people here spoke Mandarin. In this way, she indicated that finding a Mandarin-speaking church, however long that took, was more important than getting on as soon as possible, say, in a Cantonese-speaking evangelical church. She need not mention the need to evangelise at all during her discussion of her priorities here.
I asked [the applicant] to tell me in which year she had lived in [Suburb 2]; she said the year had been 2006. I put to her that according to the primary decision record that she had submitted to me without rebuttal, correction or amendment, she had said at her protection visa interview in 2017 that she had been living in [Suburb 2] when she first visited [Church 1]. (She evidently said to the delegate she had travelled all of the distance between the two suburbs because a friend of hers lived in [Suburb 1] at the time.) In response, [the applicant] said, “It’s so long. I forgot.” However, she proceeded in her evidence on the basis of having first ever gone to the [Church 1] in 2011.
I asked [the applicant] when [her son] first started going to the [Church 1], and she said he began going there in 2012. I asked her why he did not start ging until a year after she did and she said that her husband and other son had already been Christians before [the applicant son] became one. I put to her that she had just claimed to me that she converted her husband and both sons back in China, to which she said, “Yes.” Her evidence here struck me as being inconsistent and confused. She then said that [the applicant son] started out as a Christian in China but did not get baptised until 2014. Her evidence continued to seem confused when she said that [this son] first started accompanying her to the church in 2011 (rather than 2012) and did not become baptised until 2014 because he did not believe in Christianity until then.

On this evidence, [the applicant] was suggesting that a person could attend the [Church 1] for several years without actually being, or yet being, a genuine Christian. In reply, she said this was correct. I asked her why people would do so if they were not really Christian and she seemed at a loss to respond. I asked her if people might go there for company and for social contact and she agreed that they might.
At another stage in the hearing, [the applicant] indicated that she really did not have as much influence on [the applicant son] back in China as she did at the time on her other son because [the applicant son] was at school in a different province, Hunan Province, from [year] until the time he came to Australia. In this way, she appeared to abandon her claim about having converted him in China and adhere, rather, to the claim that his conversion occurred between 2011, or 2012, and 2014.
[The applicant’s son’s] evidence
I asked [the applicant’s son] when he first started believing in the Christian faith and he said this happened in 2012. I asked him how this spiritual change had occurred in him and he said it happened because he used to accompany his mother to the [Church 1]. I asked him to tell me when his mother [named] started discussing Christianity with him and he said this happened after his mother [the applicant] been attending the [Church 1] for a while. I asked him to tell me when was the first time he had ever encountered Christian people and he said that this happened in 2012 when he first met “[a named pastor]” at the [Church 1]. I note that he did not say that he had ever knowingly met any Christians, including his mother, when he was back in China.
I asked [the applicant’s son] if, before 2012, he had had no religion at all, and he said this had not been the case, as he had been more or less of a Buddhist, and seemed to suggest that this had been more or less in line with his father’s family tradition. I asked [the applicant’s son] if he could recall if anything relating to Buddhism had been special to him and he said, “Not much.” He described offerings to the family shrine at home, the lighting of incense there, the focus in Buddhist teachings on “calm” and “peace.” He said he used to believe in reincarnation, but knew little or nothing about Buddhist teachings in how to free oneself of the when and extinguish in nirvana; which is reasonable, because not all Buddhists, let alone former Buddhists, necessarily do. He did say he believes in what Buddhist teaching calls karma.
[The applicant’s son] then said that even after 2012 he was not really a Christian and did not consider himself to have become one until he was baptised in 2014. I asked him again to describe what happened within him subjectively that caused him to abandon Buddhism, such as he had lived with it, for Christianity. In reply, he said, “My mum.” I put to him that that did not sound like a description of something changing within himself. He then said that he noticed in or after 2012 that his mother had stopped moping and looking unhappy and that he put this change down to her having started to go to church. This still did not help explain how [the applicant’s son] himself went from being “more or less” a Buddhist to being a Christian. He did not share any insights about himself.
[The applicant’s son’s] recollection about when he was baptised appeared to falter when he said, more than once, that he was baptised in 2015. Accepting that his 2014 baptism certificate is genuine, I take it that this was just a minor memory slip.
Returning to 2012, I asked [the applicant’s son] why he went to that church when at the time he initially did not believe in Christianity. In reply, he said his mother [the applicant] asked him to go. I put to him that this indicated a social aspect to joining and attending with that congregation; he concurred. I asked [the applicant’s son] if there are people who do not believe in Christian religion who nevertheless attend that church and he said there are many. I put to him that there might be a social need that the church helps to meet for them. He said that it is a place where they can speak Mandarin together. Again, I said that for some there seemed to be positive social factors for affiliating with the church. In reply, [the applicant’s son] said he was not sure why some people went t that church. I asked if one might attend the [Church 1] just to manufacture claims to strengthen a protection visa application. In reply, he said, “I don’t know their true intentions.”
I sked [the applicant’s son] about his father and brother. He said his brother works in a factory and that his father fell from a tree some time ago and needed treatment for a back injury, causing him to stop his previous work and set up a business running [services]. He said that Covid-19 pandemic restrictions had forced his father to close down the [service] business and that health regulations that are still to some extent in force had prevented him from re-opening it as yet.
[The applicant’s son] confirmed that his father came to Australia with him as his student parent/guardian. He said his father stayed in Australia for around six years, which means that he was unlawfully present in the country for around four years. On this basis, I put to [the applicant’s son] that his father had overstayed his visa and [the applicant’s son] said, “I think he applied for a Bridging Visa.” I put to [the applicant’s son] that if one intends to obtain a Bridging Visa (say permitting the holder to work in Australia for the duration of the visa), a person must usually apply for a substantive visa. [The applicant’s son] said, “Yes.” I asked him if he knew what kind of substantive visa application his father had pursued, and he said, “To be honest I don’t know [because my] father rarely talked about it.” I put to [the applicant’s son] that it did not sound, from this, as though his father had included him in the application, or intended application. In reply, he said his parents sometimes withheld information from him. I asked [the applicant’s son] if his father had in fact lodged a Bridging Visa application, and he said his father “should [i,e., might] have.” I asked [the applicant’s son] if he was aware of his father having received any visa decisions, and he said he did not know.
[The applicant] and [the applicant’s son] together
[The applicant’s son] asked me to consider a particular factor. He said that his mother had attended a small unauthorised church in Guangdong with a small number of followers. He said that had it grown any larger than it was, it would have attracted repression from the government. He seemed to imply here that the church did not outgrow its safety limits. [The applicant] said she agreed with this argument. She also told me that several times over the years, the police asked her group to register the venue in which they held their services. In view of there being no claims about the group having exceeded twenty persons, I asked how, in the claimed circumstances, it could have come to pass that the police took at least six years to close down the church, labelling it a “cult.” [The applicant] said that her local “family church” was labelled a “cult by the authorities in 2006 because some of the pastors who led its services were visitors from other churches. I indicated that this did not strike me as a satisfactory explanation, and [the applicant] said that the Chinese authorities could cause trouble even to a “family church” with less than twenty members if it did not obey their demands. Here she appeared to indicate that her small church group’s failure to meet in a registered venue designated for worship had been the reason why the authorities eventually called it a “cult.” This still did not appear to make much sense, as independent country information does not support the suggestion that mere failure of a small Protestant prayer group to register its church causes it to attract the label of “cult” from the state.
I also asked [the applicant] why, in her original statement of claims, she did not at all mention having joined an underground church that was closed by police who labelled it a “cult.” In reply, she said that there were no questions in the form that seemed to prompt her to mention it. I put to [the applicant] that several questions in the form that would easily have prompted the providing of such information, for example, Q.89: “Why did you leave your country(s)? Provide specific details,” to which she had replied “I HAVE ATTACHED MY STATEMENT”; and Q.91: “Did you experience harm in that country(s)?” In reply, [the applicant] appeared to change her position, providing a different reason for having omitted all this evidence: she said she had not been aware that the lawyer who helped her complete the original application had omitted the information. I drew to her attention that this was a change in her oral evidence; I also drew to her attention that she and [her son] had solemnly declared to the Department that they had not relied on anyone else to assist then with their protection visa application. In reply, she said, “That person wrote it for us.” I asked her to name the lawyer she was describing and she said she did not know and had no idea; then she said that the person had maybe not even been a lawyer.
I asked [the applicant’s son] if he wished to comment on his protection visa application having omitted potentially significant evidence about a close member of his family. He did not answer the question on its point but, rather, observed that sometimes his mother had been slow to understand the point of my questions until I had repeated them.
I put to the applicants that the delegate noted what he described as a significant delay in the lodgement of their protection visa application.
In response, [the applicant’s son] said that he and his mother had had no idea of the “laws,” i.e., the existence of a protection visa regime in Australia, until they went to the [Church 1]. I put to him that he and his mother still did not lodge their protection visa application until 2016, which would have been around four years after he started going to the [Church 1]. I put to him that the delegate appeared concerned that a person with genuine fear of being persecuted would have applied with much more urgency. In response, [the applicant’s son] said that his reason for the delay was that he had “personally always been reluctant to make such an application.” He said that it was not until later that he really wanted to stay in Australia.
For part, [the applicant] said that she waited as long as she did to apply for protection because her husband had been scammed by his migration agent back in 2007-8. I recall she knew about that at the time, which means that as far as she herself is concerned, she did know about the existence of the protection visa stream within two years of having arrived here.
The position of the applicants together appeared to be that for about a decade neither discussed how to apply to remain in Australia with the other. In [the applicant’s son’s] case, he did not think he wanted or needed to try to stay here until around two years after he was baptised, notwithstanding, I note, that he had overstayed his student visa by around eight years.
[The applicant] told me that from the time she first attended the [Church 1] in 2011, she was aware that many church members were lodging protection visa applications. She claimed she eventually felt encouraged to lodge a protection visa application because her pastor asked her if she had lodged such an application and she had replied, “No.” Initially she said she could not remember when she had this conversation with her pastor, the she indicated that it had taken place around the time she started attending the church. Then she changed her evidence, saying that the pastor did not speak with her about protection visas until 2016, which was the year in which she lodged the application. When I questioned this evidence, [the applicant] said she was not sure, but confirmed that the pastor had encouraged her to lodge a protection visa application.
I put to the applicants that, in the statement of claims in their original protection visa application, [the applicant] had given a different reason for the delay in lodging her application: she had said she had “decided to apply [for protection] now [because] I think it is time [and] because we have lost […] faith [in] the Chinese government[.] I think they will never change [their] attitude [towards] the Christian [people in China].” She had not mentioned her husband’s treatment by the scammer as a reason for holding off, even after witnessing many churchgoers having lodged protection visa applications of their own. Addressing this concern, [the applicant] said it was nevertheless true that she lodged the application encouraged by her pastor.
[The applicant’s son] said that he agreed with his mother’s evidence about the delay in applying for protection. He also said that he later lodged his own statement regarding his time as a [trainee] in Guangdong. He said he did not mention this at the time of the original application because even as he was lodging it with his mother he had no personal interest on his own part in applying. This struck me as odd in the claimed circumstances. I put to [the applicant’s son] that it was hard to comprehend why he would lodge a protection visa application if he was not genuinely interested at the time in doing so.
I referred the applicants to the primary decision record where the delegate recorded a summary of how they had responded to questions about the Bible. I assured them both that it can be dangerous to embark on a quiz, not least because it is reasonable to understand that faith and knowledge are, or can be, reasonably unrelated. I indicated to [the applicant] that on the face of things, she did not appear to have possessed, at the time of the 2017 interview, the knowledge of a Christian preacher.
At this point, [the applicant’s son] asked if he could intervene and I allowed him to do so. He said that, at the 2017 interview, their interpreter had been a Cantonese-English interpreter. I note from this that [the applicant] would therefore have heard the delegate’s questions in her mother tongue, Cantonese. [The applicant’s son] went on to say that his mother had not been able to understand the delegate’s religious knowledge questions through the interpreter because she reads the Bible in Mandarin (i.e, in the simplified Chinese character script, rather than in the traditional script generally understood by Cantonese speakers in Guangdong and Hong Kong).
[The applicant] agreed with this information and thus adopted her son’s evidence as her own. She said that the [Church 1] uses a Mandarin Bible with the simplified Chinese characters adopted nationally in China. I asked [the applicant] to confirm that Cantonese is her mother tongue and she said, “Yes.” I then put to [the applicant] that I was having some difficulty understanding how she would have had difficulty understanding questions that were put to her at the delegate’s interview in her mother tongue, even if they were about her religion. In response, [the applicant] said she had been able to understand the questions but had had difficulty answering them in Cantonese because she uses Mandarin in church. She then said that her Mandarin at that time was not good. In this way, she seemed to be explaining to me why she had asked the Department to provide a Cantonese-English interpreter for her interview with the delegate.
[The applicant’s] evidence here nevertheless struck me as problematic, as she had told me that she preached, prayed and read the Bible in China for six years in the company of up to twenty other Christians all of whom communicated with each other in the local dialect Cantonese, back at a time when, she said, she had not yet begun to learn or practice the national language Mandarin. On the evidence before me, I am unable to give any weight to [the applicant’s] explanation as to why she was unable in 2017 to answer questions about her purported Christian faith in Cantonese.
With regard to the applicants not having commenced attending a Christian church in Sydney until, respectively, 2011 and 2012, I asked them both why they, or at least [the applicant] for her own part, had not much sooner sought out a Cantonese-speaking Christian church here. In response, [the applicant] said that there are very few Cantonese-speaking Christian churches in Sydney. I put to her that a few is still more than none. In fact, Cantonese-language services are provided in Sydney by the West Sydney Chinese Christian Church (WSCCC),[1] the Gordon Baptist Church,[2] the Chinese Christian Church,[3] the Sydney Chinese Alliance Church in Rockdale,[4] and the Central Baptist Church,[5] to name just a few of many that appear in a simple Google search using “sydney cantonese church” as keywords.
[1]
[2]
[3]
[4]
[5]
In reply to this, [the applicant] said that her family was nevertheless unable to find any Cantonese-speaking churches when they first arrived here. She said that all the people she met here spoke Mandarin. [The applicant’s son] concurred, saying that after they moved to [Suburb 1], they found that everyone there spoke Mandarin. I note that according to the applicants’ original protection visa application form, they did not move to [Suburb 1] until 2010, both having lived in [Suburb 2], on the [other] side of Sydney from 2006 to 2010. I note, meanwhile, that when I asked [the applicant] at the hearing to tell me how long she had lived in [Suburb 2], she said she had only lived there for one week in 2006 before moving to [Town 1] where she worked. In any event, the applicants lived around four years in Australia before they moved to [Suburb 1] where, they said, “everyone” spoke Mandarin rather than Cantonese.
[The applicant’s son] clarified that he attended a [specialist] school in Hunan [between specified years] when he graduated. He said that his graduation certificate, a copy of which he submitted to the tribunal and which was translated at the hearing with the help of the first interpreter, showed that he graduated in “[specified subjects].” He said that the name of the institution issuing the certificate was different from the one he attended because the former was the headquarters of the other. He said he did his [training in a specified role] in Jiangmen, Guangdong, his home city, from [between specified years]. He and his mother both gave evidence of the period leading up to the decision to send him to Australia to complete his secondary schooling. It was described to me as a period of some degree of estrangement, during which [the applicant’s son’s] standards of social behaviour substantially declined to appoint where he was getting drunk and even sleeping rough. It was clear from this evidence that the decision to send him to Australia had nothing to do with [the applicant’s] church-related problems and all to do with straightening [her son] out, as it were. It appears to me that this may explain why it was decided his father should be his guardian here.
I asked [the applicant’s son] to explain the relevance of his 7 April 2021 statement. In reply, he said he wrote it in support of his mother’s case. He said he wanted to argue that if the Chinese government could mistreat people in Hong Kong and Tibet they could surely mistreat his mother for being a Christian. I drew to his attention the fact that he seemed only to be arguing this on his mother’s behalf and not his own, and he said, “Right.” This response seemed odd, however, because, looking at [the applicant’s son’s] 7 April 2021 statement, it is not really as he described it at the hearing. Rather, it makes arguments on [his] own behalf as well as his mother’s.

I acknowledged having received various items of documentary evidence from the applicants, including church activity rosters in which their names evidently appear, along with their baptism certificates and letters from their pastor, in addition to the various photographs of them praying and participating in church group excursions. I acknowledged that it was to be expected, in light of all the evident activity, that they would be more able to answer questions going to knowledge about Christianity and the Bible. I indicated, however, that I needed to consider at their human respective narratives as a whole. [The applicant’s son] said that he was worried that his mother was not sufficiently articulate in her evidence at the hearing. He said that sometimes she says the wrong thing because she is too honest. [The applicant] appeared to concur, thus adopting this as her own position.
I put to both applicants that I could not find evidence of Chinese nationals having been persecuted on or after return to China due to having joined and attended Catholic, Protestant or evangelical Christian churches during their time abroad: according to DFAT, the Chinese authorities are much more concerned with which churches people join while they are residing in China.[6] [The applicant’s son] was first to respond, saying that the Chinese government has become more domineering in recent years having adopted more strict regulations about church activities in China. [The applicant] said that she had attended Sunday school in [Suburb 1] and worshipped here online. I invited her to address the question more on its point, and she said that when she was in China, the authorities had warned her family church group. She also said that the Chinese government had arrested many Christians since she came to Australia. Information from DFAT[7] supports the position that this has happened to leaders of unauthorised churches in some circumstances and also to people involved in banned groups labelled as “cults.” However, neither applicant directly addressed the issue I raised here, which was about prospects for people returning to China after attending Christian churches abroad.
[6] DFAT Country Information Report China, 3 October 2019
[7] Ibid.
I asked both applicants if they might meet their spiritual needs praying and Bible reading at home the way [the applicant’s] husband and other son were described as doing. I put to them both that I had not heard any evidence from either of them about the other two members of their family having faced relevant harm; in fact, both applicants had indicated to me that [the applicant’s] husband and other son live stable, unremarkable lives day-to-day.
In reply, [the applicant’s son] said that people are experiencing “lockdown” in China due to the Covid-19 pandemic. He added that Chinese authorities can harm the population arbitrarily. It is not clear to me what these how two assertions, taken together or separately, addressed the issue I raised.
For her part, [the applicant] confirmed that her husband and son have not been harmed for reasons of their religion. She said that they had been warned about affiliating with unregistered churches. She then said that she herself would be persecuted in China because she is different from her husband and son in that she did once affiliate with an unregistered church in China.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[10] It is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[11]
[10] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[11] Sun v MIBP [2016] FCAFC 52 at [69].
I have considered the claims and evidence of each respective applicant separately and cumulatively. I have not relied on the evidence of one applicant to make any potentially negative findings in relation to the other. That said, I have not closed my ears to evidence they gave in support of each other.
After hearing all of the evidence from both applicants about their having joined and been baptised in the [Church 1], which can clearly be regarded as conduct into which they entered in Australia, I asked myself if s.5J(6) applied in this case:
(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.
I find on the evidence before me that both applicants entered into the conduct of joining and attending the [Church 1] from around 2011, when [the applicant] attended with [the applicant’s son] taking her there, and later with the two undergoing baptism in the church respectively in 2011 and 2014.

100. I recall that both applicants gave evidence of having integrated into the Mandarin-speaking community. I heard evidence to the effect that one of the benefits of attending the [Church 1] is that it provides a milieu in which people could speak and practice Mandarin. I also found evidence to the effect that, not least in its conducting of group outings, the church provides an arguably attractive social environment for its followers. There are also lunches held each Sunday where people who just finished attending Sunday service can gather for lunch and chat. I can easily accept that [the applicant], for instance, enjoys the company of good and helpful people, and that some such people attend the [Church 1]. I also heard evidence from [the applicant’s son] to the effect that he first attended without even considering himself to be Christian because he was being an obedient son.
101. On the whole, whereas I do have concerns as to the reliability and good faith of both of the respective applicants in this matter, I am unable to conclude that they joined and attend the [Church 1] solely for the purpose of strengthening their respective claims to be refugees.
102. For this reason, I have regard to the evidence of the respective applicants’ relations with the [Church 1] in determining whether either or both of them has/have well founded fear of being persecuted in China for one or more of the reasons mentioned in s.5J(1)(a) of the Act.
Findings in relation to [the applicant’s son]
103. I accept that [the applicant’s son] went to school in Guangdong and then studied in Hunan [between specified years], whereupon he undertook a two-year internship at a [local agency] in his home city of Jiangmen in Guangdong. I accept his evidence to the effect that during his internship his behaviour declined as he fell into teenage alcohol abuse and sleeping rough. I accept that one of the factors in this behaviour might have been a sense of impunity in the [agency’s] culture in which he worked, as described in his recent statement to the Tribunal. I accept that [the applicant’s son’s] anti-social his caused strain on his relationship with his parents and putting a distance between him and them. I find on the evidence before me that he was sent to Australia for the purpose of straightening him out, as it were, and that his father accompanied him originally to help instil some discipline and filial respect.
104. As noted, [the applicant’s son] said he was not exposed to Christianity and did not consider himself genuinely and subjectively to be a Christian until around 2011-12 when he began taking his mother to the [Church 1]. I have considered this alongside the written claims in his original protection visa application about his mother having embarked on preaching Christianity to her family after returning from a visit to Hong Kong, particularly in view of his being a member of her family.
105. I find on [the applicant’s son’s] evidence that he was not exposed to Christianity, either by preaching, or by example or anything else, before he came to Australia. However, even if the rest of his family in Guangdong were affiliating with Christians, which is a matter I shall further discuss below, it is not hard to accept that, consistent with his claim at the Tribunal hearing, he would have effectively had no exposure to Christianity in China as he was geographically and culturally remote from his family four around four years before coming here. Hence I give no weight, with regard to [the applicant’s son’s] case, to the original claim about his having been exposed to Christian teaching while he still lived in China, prior to 2006.
106. I accept on [the applicant’s son’s] evidence that he was first exposed to Christians and Christian observances and teachings in 2011-12 when he began accompanying his mother to the [Church 1]. I give some weight in this matter to his evidence to the effect that it is possible to be a non-Christian or not genuinely Christian and still enjoy inclusion in the church’s culture and activities.
107. I have considered [the applicant’s son’s] answers to my questions regarding the inception, in him, of a subjectively genuine Christian faith. It is likely that every individual who embrace religion, or a new religion, in adulthood would have a somewhat unique experience of this, that it might be hard to describe in an interrogation or “cold interview,” as it were. Meanwhile, it would be unreasonable to expect that there are generically right or wrong answers to questions about this. The individual’s whole human narrative needs to be weighed and considered.
108. In [the applicant’s son’s] case, when I asked him to describe the inception and growth of Christian faith within him, and while he did not appear to have difficulty articulating any position during the hearing, his answers were not impressive. He said he first considered himself a Christian in 2012 because his mother used to ask him to take her to the church. Then he changed his evidence, saying he did not regard himself subjectively a genuine Christian until he had been baptised in 2014. His answers to my questions about the inception of Christian faith struck me as being superficial and digressive. This was all the more so given his evidently easy ability to articulate an understanding of Buddhism, some Buddhist dharma (teaching) and Buddhist ritual, notwithstanding that he claims not ever having been wholeheartedly Buddhist. He was able to say with apparent conviction that he was interested in the concept of karma. By stark contrast, however, he said the overwhelming factor in his own “embrace” of Christianity was that he attributed to being Christian the changes in his mother from being a person who moped to someone who did not mope. He did not describe any potential changes in himself: in his world view, his subjective outlook, his inner feelings (say, aspirations or fears) or anything else for that matter.
109. On his ultimately poor evidence, I do not accept that [the applicant’s son] is a genuine Christian. My overall impression is that if his mother stooped requiring him to take her to the church he would stop going. I find that he will not engage in Christian prayer, activities, observances or affiliations in China for the sole reason that he is not a genuine Christian (rather, say, than for the reason that he is a genuine Christian who fears being persecuted).
110. I have considered, as witness evidence, all the written and oral claims and evidence that [the applicant] has provided in support of [the applicant’s son]. However, on [the applicant’s son’s] poor performance as a witness in this matter, I give very little weight to [the applicant’s] statements in support of him. I have come to a similar conclusion with regard to the reference letter from [the applicant’s son’s] church. Whereas it was probably written entirely in good faith, and whereas it says positive things about [the applicant’s son’s] general personality, it does nothing to overcome deficiencies in his own evidence about himself. Accordingly, I give it very little weight, apart from the extent to which it reminds the reader of [the applicant’s son’s] date of baptism.
111. In making my findings in regard to [the applicant’s son], I give some weight to [his] very long delay in lodging a protection visa in Australia. When I raised this issue with him he said that he had merely relied on his mother’s understanding and familiarity with Australia immigration law. I find that in giving this response, [the applicant’s son] was “passing the buck” as it were. In any event, he said he had not genuinely been interested in seeking protection here, though illegally present in the country for around eight years before doing so. He even said, at one point, that he had not subjectively at one with lodging the original protection visa application at the time he had lodged it. On the evidence before me, [the applicant’s son] was content to live here illegally for eight until, relatively recently, an opportunity to stay here legally cropped up. I give his delay in lodging a protection visa application in Australia some negative weight in this matter.
112. On the evidence before me, I am not satisfied that [the applicant’s son] faces a real chance of being persecuted in China for reasons of having affiliated with the [Church 1] here in Australia.
113. I have had regard to [the applicant’s son’s] 7 April 2021 statement and his subsequent evidence in speaking to it. I accept that the police in China are corrupt and heavy-handed. I accept that the Chinese Communist Party breaches human rights in Hong Kong, Xinjiang and Tibet, to name just a few contexts in which the state is reported to behave egregiously. However, I am not satisfied that [the applicant’s son] is genuinely interested in criticising the Chinese state with regard to any of its activities or instruments such as the police or any other institution, let alone that he is genuinely interested in being a “whistleblower,” as it were, against the Chinese police.
114. I give very little weight in this matter to [the applicant’s son’s] claimed awareness of his father and brother being or having been Christians, as he said he lived away from his father here in Australia, apparently even while his father was supposed to be his guardian here, and claimed to know little of what he was doing. Meanwhile, back in China he lived in a different province for several years and then lived a life as a [trainee] that evidently saw him spending less time under the influence of his parents and even sleeping at home. To sum up, [the applicant’s son’s] assertion that he knew his father to be a practicing Christian is inconsistent with what he described as an overall ignorance about his father’s behaviour, activities and motivations, to the extent that he told me at one stage that his parents used to hide things from him.
115. Having considered [the applicant’s son’s] evidence in its entirety, I am not satisfied that he faces a real chance of being persecuted in China for “religion,” or real or imputed “political opinion”.
116. These findings having been made in regard to [the applicant’s son], there still remains the question as to whether he is entitled to a protection visa for reasons of being a member of a “particular social group,” in this case being the “immediate family” of which his mother, claiming protection for reasons of “religion,” is a member.
Findings in relation to [the applicant]
117. [The applicant’s son] spoke a number of times at the Tribunal hearing in support of his mother, in particular to mention what he described as her difficulties answering questions of the kind that I was asking, and to suggest that her failures to give evidence in the past were due to her having to give it in her mother tongue, Cantonese. I have considered [the applicant’s son’s] words of support, with all of which [the applicant] concurred; however, on the evidence before me, I do not accept that [the applicant] has been prevented from giving meaningful evidence in this matter due to language issues or any factors beyond her control.
118. I accept that [the applicant], a Chinese national from Jiangmen city in Guangdong province, visited her [sister] in Hong Kong for one week in 2000. I accept that [the applicant] spoke only Cantonese at the time, notwithstanding that she had spent around five years in China’s primary school system in which it is reasonable to expect that Mandarin was the medium language. It is easy to accept that what Mandarin she had absorbed in those five years, she had forgotten by the time she was an adult, as Cantonese is still very widely spoken day-to-day in Guangdong, as it is in Hong Kong. Even TV News programs were being broadcast in Cantonese in Guangdong well into this last decade,[12] long after [the applicant] last left China.
[12] “China Is Forcing Its Biggest Cantonese-Speaking Region To Speak Mandarin,” Insider, 25 August 2014,
119. I find it hard to accept that with only a week to spend in Hong Kong, [the applicant] followed her sister’s neighbour on one of those days to a Christian church, let alone to one where she was not able to comprehend either of the languages being used there. It also seems far-fetched that no Cantonese was spoken amongst the followers of the church in Hong Kong to which she claimed to have been taken. Whereas an individual may well find some appeal and a sense of novelty from the sight of a group of people in Hong Kong being kind to each other, I am not satisfied on the evidence before me that this fostered any kind of spiritual “birth” in [the applicant], or even a desire to belong, with or without concomitant hymn-singing. I give more weight to the suggestion that she was, or would have been, in an unfamiliar social environment for less than two hours amongst people with whom she could not communicate for the duration of its proceedings. Overall, [the applicant] did not provide a compelling account of having undergone an inception of Christian belief either Hong Kong or China. [The applicant’s] claims to the effect that she was encouraged to preach Christianity on her return to China is riddled with inconsistencies and what I find to be new embellishments and improvisations. It also strikes me as incongruous, in the claimed circumstances, that [the applicant] remained behind in China in 2006 when she could have applied and been accepted as her son’s parent/guardian. She was evidently in no hurry to leave China in 2006. She gave inconsistent and generally unsatisfactory evidence about how she could have been in a position to preach anything to anyone on her return to China. She gave implausible and improvised evidence about the church she claimed to have joined being labelled a “cult.” Her claims about the church being put under such pressure for so long without being closed struck me as being generally implausible. Her claims about the church being put under such pressure for so long whilst never having over twenty members also struck me as generally implausible. Looking at all this evidence cumulatively, I do not accept that [the applicant] attended a church in Hong Kong, let alone that she embraced Christianity from the time of going there, or in any other way from her time in Hong Kong. It follows that I do not accept that she preached or tried to preach Christianity on return to China, to any members of her family, or to friends or anyone. I do not accept her relatively new claims, omitted from the original protection visa application, about having joined an underground church in China. I do not accept her explanations as to how these and other claims were omitted from the original application, least of all the one about not being asked in the form to mention such things. I give weight to [the applicant] not having tried to come sooner to Australia In the claimed circumstances. I give more weight to her claim as to the purpose of her coming here in the first place than to the suggestion that she was fleeing possible relevant harm at the time. I do not accept that [the applicant] was a Christian or even exposed to Christian teaching or observance prior to coming to Australia in 2006.

120. This is a significant finding of fact against [the applicant] and a hard one to ignore in the course of considering the rest of her claims about herself. It leads me not to accept that when she joined the [Church 1] she did so after years of unproductive searching for a suitable church to attend. Even her evidence about that search has been inconsistent over time. Whereas she evidently told the Department that she joined the [Church 1] soon after arriving in Australia, that claim was mutually exclusive with her evidence to me about not finding that church until 2011, after moving back to Sydney from [Town 1] where she had moved to find work, having previously lived in Sydney, in [Suburb 2], for only a week after arriving here. I do not accept that [the applicant], who claimed language issues, so easily found work illegally in Australia in 2006, whilst being unable to find a suitable church here before joining the [Church 1] in 2011, around five years after arriving here. I do not accept what I consider to be a recently-invented claim about [the applicant] having found a Cantonese-speaking church soon after arriving in Australia, but only going there once because it was not a suitable church for her. For this and other reasons involving what struck me as factual improvisations, I consider [the applicant’s] claim about waiting until she could find a Mandarin-speaking church, even for the reasons she gave, both far-fetched and fanciful.
121. The effect of this is that I do not accept that [the applicant] had a genuine desire or need to join a Christian church from the time she arrived in Australia. This finding has two implications: the first is that it makes me all the confident that she was not a Christian before coming here; the second is that it is very hard to accept that she found, or was led or directed to, the [Church 1] as a result of a genuine religious yearning.
122. This leaves me finding no reliable evidence as to why [the applicant] commenced attending the [Church 1] five years after arriving in Australia, and almost five years after beginning to overstay her visitor visa, except evidence to the effect that it provided some social support and a prospect of integration into a community that might eventually help her from having to return to China. True, [the applicant] displayed some religious knowledge both to the delegate and to me, and provided much evidence of integral involvement with the [Church 1], and in addition to this, her pastor’s letter attests to her good personality, but looking at her evidence as a whole I do not accept that she joined the church or was baptised in it on the basis of a genuine, subjective Christian faith. Essentially, I am not satisfied on [the applicant’s] evidence that she is a genuine Christian.
123. In the course of reaching the above conclusion I have given negative weight in this matter to [the applicant’s] long delay in seeking protection in Australia. I do not accept that she would have retained even tentative faith in the Chinese authorities over several years after coming here, particularly in circumstances that she claimed to be at the core of her eventual protection visa application. For a start, while that faith in China supposedly still existed, and did not expire until around 2016, she did not attempt to return there in the preceding decade; rather, she looked for and found illegal work in places like [Town 1]. Generally, I believe that interest in working here was her overriding reason to come here, and also to overstay. Whereas she claims to have considered seeking protection here before 2016, due to fears of being ripped off by venal migration agents, I do not accept on her general performance as a witness that she is being truthful. This claim about her husband was not in her original protection visa application and she did not evidently raise it in evidence before the delegate. Generally, her evidence about her husband’s supposed attempts to lodge a protection visa application, without her knowing if she was to be included in it, were vague and implausible and I do not believe them. That leaves me with [the applicant’s] pastor mentioning protection visa applications to her in 2016 and her taking his advice the basis of what I consider, on the facts before me, to have been an afterthought, perhaps motivated, on the strength of other evidence she gave me, by the potential opportunity to work here legally for an indefinite period.
124. On the basis of [the applicant’s] evidence about herself, I do not accept that she introduced her husband and other son to Christianity. I do not accept that they are genuine Christians. Hence I do not accept that her husband and son pray together or by themselves at home, or that her husband visited a state-authorised church, let alone that he found it not to his liking as a Christian. In view of the serious deficiencies in [the applicant’s] evidence, I give no weight to [the applicant’s son’s] claim, as a witness speaking in her support, about her husband and other son being Christians.
125. I am not satisfied on the evidence before me that [the applicant] will live as a Christian in China. I find that she will not engage in Christian practice or observance because, as I have found, she is not genuinely Christian. I am not satisfied on the evidence before me that she will be imputed by others to be a Christian. I am not satisfied on the evidence before me that she faces a real chance of being persecuted in China due to her having attended the [Church 1] here in Australia or having affiliated with Christians in Australian society.
126. As noted, [the applicant’s son] spoke several times as a witness in support of [the applicant], but I give very little weight to his evidence in her support due to her overwhelming lack of reliability in this matter on her own part.
127. Having considered [the applicant’s] evidence in its entirety, I am not satisfied that she faces a real chance of being persecuted in China for “religion,” or for any other reason cited in s.5J(1)(a) of the Act. Her claimed fear of being persecuted is not well founded. She is not a refugee.
128. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Further findings in relation to [the applicant’s son]
129. Having made the findings above, I am not satisfied that [the applicant’s son] faces a real chance of being persecuted in China for reasons of “membership of a particular social group,” in this case being membership of [the applicant’s] family. Ultimately, I am not satisfied on the evidence before me that he faces a real chance of being persecuted in China for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
130. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
131. Having concluded that the applicants do not meet refugee criteria, I have considered the alternative criteria relating to complementary protection.
132. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
133. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
134. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
135. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
136. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
137. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
138. Accepting that both applicants are citizens of China, I find that China is the “receiving country” in this case.
139. I find that the harm the applicants identify in their claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
140. The applicants’ claims to complementary protection are essentially the same as their refugee status claims, as detailed above. Those claims have failed as refugee status claims in each respective case due to their many instances of inconsistency and overall lack of reliability. In view of this, and of the "real risk" test imposing the same standard as the “real chance” test, those claims can no more succeed as complementary protection claims.
141. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that either of the respective applicants will suffer significant harm.
142. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
143. There is no suggestion that any of the applicants 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, they do not satisfy the criterion in s.36(2).
DECISION
144. The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy

Member
ATTACHMENT - 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.
…

[2021] AATA 3038

18 May 2021

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