1715467 (Refugee)

[2023] AATA 2654

1715467 (Refugee) [2023] AATA 2654 (4 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715467

COUNTRY OF REFERENCE:                   China

MEMBER:Jane Marquard

DATE:4 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 April 2023 at 12:21pm

CATCHWORDS
REFUGEE – protection visa – China – religion – I-Kuan Dao – Jiliu Buddhism – Fo Guang Shan – claimed arrests and detention – victim of domestic and family violence – fear of unemployment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The applicant is a [age]-year-old woman from Fuqing, Fujian Province, People’s Republic of China (China). Her parents, [siblings] and [children] live in China.

3. She first arrived in Australia [in] July 2015 on a Visitor (FA 600) visa.

4. She applied for this protection visa on 24 September 2015. She claimed protection in Australia on the basis that she would suffer persecution due to her I-Kuan Dao religion (also known as I-Kuan Tao). According to the World I-Kuan Tao Headquarters website, ‘I-Kuan Tao is one of the most significant spiritual movements in Taiwan’, which is ‘rooted in Chinese traditions, with teachings emphasising traditional values such as family, honour, respect and moderation’. The website states that it is the definitive and authentic Chinese form of spirituality but is open to everyone.[1]

   [1] World I-Kuan Tao Headquarters website, <>

   The delegate of the Department of Home Affairs (the Department) was not satisfied that the applicant practised I-Kuan Dao or would practise it if she returned to China. The delegate was not satisfied, therefore, that she met the criteria for a protection visa.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

5. The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[2] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

   [2] See Schedule 1, cl 1401; Schedule 2, cls 866.1 to 866.611 of the Regulations.

6. Australia acceded to the 1951 Convention relating to Status of Refugees[3] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[4] in 1973, thereby undertaking to apply their substantive provisions.[5] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[6]

   [3] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Convention).

   [4] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

   [5] Convention.

   [6] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

8. An applicant must establish that they:

   a.are a refugee (the refugee criterion);[7] or

   b.qualify for complementary protection (the complementary protection criterion);[8] or

   c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[9]

   [7] Section 36(2)(a) of the Act.

   [8] Section 36(2)(aa) of the Act.

   [9] Section 36(2)(b), (c) of the Act.

   Refugee criterion

9. Section 36(2)(a) of the Act 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.

10. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality:  s 5H(1)(a) of the Act.

11. Under s 5J(1) of the Act, 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 must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

12. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

13. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).

14. 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 of the Act, which are extracted in Attachment A to this decision

    Complementary protection criterion

15. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

16. 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) of the Act, which are extracted in Attachment A to this decision.

    evidence considered in this review

17. The applicant appeared before the Tribunal on 9 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant early in the hearing confirmed that she was satisfied with the interpretation, although she later said that she had difficulty expressing herself in Mandarin and had requested a Fujian interpreter. The Tribunal noted that she had requested a Mandarin interpreter in her application dated 24 September 2015 and had not specified a Fujian dialect interpreter. Although it appeared to the Tribunal that she had no difficulty understanding the interpreter and no further comments were made about interpretation, the Tribunal held a second hearing on 22 March 2023 to provide a further opportunity for her to provide evidence. At the second hearing she expressed satisfaction with the interpreter, and also confirmed that she had no problems with the interpreter at the first hearing, except for the one occasion when she had provided comments.

18. In addition to evidence before the Tribunal, the Tribunal has also considered the evidence provided to the Department in the application and supporting documentation, and independent country sources about various Buddhist practices, I-Kuan Dao and China.

19. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[10]

    [10] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    KEY ISSUES FOR DETERMINATION BY THIS TRIBUNAL

20. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

    ·     Whether the incidents described by the applicant took place in China (findings of fact).

    ·     Whether the applicant is a genuine follower of I-Kuan Dao.

    ·     Whether there is a real chance of serious harm or a real risk of significant harm if she were to return to China for reasons of her religion, domestic and family violence or because she could not find a job.

21. These issues and other threshold issues are discussed below.

    FINDINGS

    Nationality

22. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

23. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

24. The applicant has a passport from China, issued in 2010 in Fujian Province, which expired in 2020. The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of China, and that China is the receiving country for the purposes of the legislation.

    Personal particulars and background

25. The Tribunal accepts the following evidence provided by the applicant about her family and background. This evidence has been consistently provided and there is no reason to doubt that it is true.

26. The applicant was born in a village in [Town 1] in [year], and lived in [Town 1] from [year] to 2012, and then in Fuqing City from 2012 to 2015.

27. She has two [children], [Child 1] and [Child 2], aged [age] and [age], who live in China with her parents in the same village where she was born. She also has [number] brothers living there. Her sister is married and moved to a different village. Her father and mother were farmers, selling food in the markets, and her brothers are working in construction. Her sister is a housewife. Her grandparents came from the [Town 1] area, in an adjacent village, and she had extended family living in the area, including aunts, uncles and cousins. She is in close contact with her parents and speaks to her siblings once a month.

28. The applicant was married at the age of [age] and had a [child], and they divorced in around 2009. She re-married and adopted another [child]. She wished to divorce again, and separated in 2012, but her husband refused to divorce.

29. She went to primary school for two years in [Town 1] but she did not go to secondary school as the family were poor. She had to work in the fields farming, getting rid of weeds and looking after sheep and pigs. She said that her mother did not think that she should go to school, so she had to stay home and look after the pigs. She slept with the pigs. Her mother beat her and preferred her brothers to her. She had a difficult childhood. She worked on farms until she came to Australia and worked in a clothing factory and petrol station. She was working in a factory from 2001 until she came to Australia.

30. Her mother is now over [age] years old and suffers from epilepsy.

    Did the applicant practise I-Kuan Dao in China, and does she practise it in Australia?

31. The Tribunal has considered the applicant’s evidence and claims regarding her involvement in China in I-Kuan Dao (which is known also as Yiguan Tao or Yi Guan Dao, Tian Dao or Tien Tao).[11]

    [11] See the website.

32. The delegate of the Department was not satisfied that she was a practitioner of I-Kuan Dao considering her ‘vague’ information on the subject and the fact that she did not know the address of the [Suburb 1] temple in Sydney.

33. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510. The applicant in this case emphasised that she was poorly educated. She was also unrepresented. The Tribunal attempted to assist the applicant by providing two hearings in order for her to present her evidence, and by outlining to her relevant law and procedures.

34. The Tribunal has also taken into consideration the fact that applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

35. These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[12]

    [12] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >

    The applicant claimed in her application that she practised I-Kuan Dao in China, following her parents’ traditions. She claimed that she became a practitioner in 2009, the same year that she divorced. In her interview with the Department, she said that she met someone who introduced her to I-Kuan Dao. She said that her family had a temple shrine at home, and they had ceremonies on the first and fifteenth day of the month according to the lunar calendar. She claimed that she adopted her second child out of kindness, and adherence to the Five Virtues and Eight Compassions. She said in her application that she preached to her second husband, [Mr A], but he did not support her religious practice. She also emphasised that her religion gave her the mental support she needed, and that supporters of I-Kuan Tao helped her. Asked at the Departmental interview about how she practised, she said that she bows for ‘100 times, 1000 times, 10 000 times’ and she did daily prayers before meals. She was asked what the five rituals common to I-Kuan Dao gatherings are. She said that there are three stretches, a portal and a gesture. She said at the temple they kneeled. She said that they watched the honourable presence and saluted them. She said that the beginning ritual was to be enlightened, ‘to go through the heavenly way, to seek Dao’. She said that a master carries out initiations. Asked what the three treasures were, she said ‘hartoum’ and ‘portal’. She knew that the religion originated from Taiwan.

36. The Department was not satisfied on this evidence that she had sufficient knowledge of I-Kuan Dao to be a practitioner.

37. The Tribunal also has had significant doubts about whether she is an I-Kuan Tao practitioner. She referred to ‘Jiliu’ Buddhism as her religion when asked a number of times by the Tribunal at the first and second Tribunal hearings what religion she practised. The interpreter at the hearing confirmed the spelling of ‘Jiliu’ with her. She also told the Tribunal that she went to various Buddhist temples for worship and it did not matter to her which one she attended, and she had not been to an I-Kuan Tao temple for a long time. She also confirmed that Jiliu Buddhism was the religion she practised in China, as did her family, and that it was the same as the temple of Fo Guang Shan which she currently attends. This evidence suggests she practises Buddhism in various forms, and is not specifically focused on I-Kuan Dao but rather on Fo Guang Shan. Her evidence is discussed further below.

38. The applicant told the Tribunal at the first hearing that her grandparents, parents, siblings and children are Buddhists, and she grew up as a Buddhist, ‘following the steps’ of her parents. She said that she is still a Buddhist now. Some of the other members of her extended family are Buddhists, and some are not. She was asked if she was referring to a particular type of Buddhism that all these members of the family practise. She said that they ‘have a lot of Gods to worship’. She was asked how she and her family practised Buddhism. She said that on special occasions, such as the beginning or middle of the month, they would eat special vegetarian meals and pray for happiness in the temples. They would listen to monks preaching the principles of Buddhism. She was asked to describe the temple where they prayed. She said that the temples were in the village and there were statues of Gods inside the temples. There was a furnace where people burnt incense. There were about 10 people in attendance, but sometimes about 20. She had some friends who attended. Her family and friends are still worshipping in this temple on the first of the month and the middle of the month, which are the fixed times. She was asked if this kind of Buddhism had a particular name and she said that it was Jiliu Buddhism (congregation all saints). She said that she still practises this kind of Buddhism today. She was asked at the Tribunal hearing what the key principles of Jiliu Buddhism are. She said that Buddhism ‘gives her a good feeling’ and she said that ‘it is no pressure’. She was asked what Jiliu Buddhists believe in. She said that ‘they will give me freedom and no pressure’. She was asked by the Tribunal why she stated in the application that she was a practitioner of I-Kuan Dao, whereas she had told the Tribunal she practised Jiliu Buddhism. She said that Jiliu is the name of the temple and I-Kuan Dao was just the name of the Buddhism. Searches of the different types of I-Kuan Dao did not reveal a form called Jiliu.[13] Asked why she did not tell the Tribunal about I-Kuan Dao, she said she had a slow reaction.

    [13] Association for the Sociology of Religion, Yunfeng Lu and Graeme Lang, <Impact of the State on the Evolution of a Sect>, 01 January 2006, and Journal of the Graduate School of Letters, 9: 41-53, Ka Shing NG,<Yiguan Dao in Hong Kong: A Case Study of its Organizational Characteristics and Conversion Experiences of Adherents>,  01 March 2014.

1. The Tribunal is of the view that if she was practising I-Kuan Dao she would have told the Tribunal about it specifically when asked. Clearly from her evidence she was practising Buddhism of some variety but it was not clear from her evidence that it was I-Kuan Tao. Her evidence is discussed below.

2. The applicant did not have detailed knowledge of I-Kuan Dao, for example it’s foundation in beliefs of Confucius, although she did have some understanding of the moral tenets, some of which are also common to other types of Buddhism.Asked to explain I-Kuan Dao beliefs, she said that the principle is to do good things by other people and to visit the Gods and change people into good people. She was asked whose beliefs I-Kuan Dao are based on (Confucius[14]). She said that she does not understand or know how to express herself in Mandarin. She was asked if she understood what the I-Kuan Tao beliefs are in relation to family. She said that it is about solidarity and love. She said that ‘whenever I have difficulties the gentlemen in I-Kuan Dao help me.’ She was asked about the I-Kuan Dao belief of ‘cultivation’. She said that she could only express herself in Fujian. The Tribunal put to her that she had requested a Mandarin interpreter. She said that she asked for a Fujian interpreter. She said that she did not know the Tribunal would ask about cultivation. The Tribunal put to her that she had confirmed earlier that she understood the interpreter and it did appear that she understood and could express herself. She was asked if she could broadly explain cultivation. She said that cultivation helps her avoid hardship.

   [14] I-Kuan Tao website, <What is Tao | AUSTRALIA (NATIONWIDE) I-KUAN TAO HEADQUARTERS INC>.

3. According to sources about I-Kuan Dao:

   We teach the basic principles of human interaction put forward by Confucius over 2,500 years ago. Confucius believes that a good society begins with the family unit and a good family unit begins with the individual. His ideas are based on genuine respect and compassion for each other. Therefore, to change the world for the better, we must first not change others; we must change ourselves. This journey requires one to put moral values such as sincerity, respect, humility and compassion into practice. We commonly refer to this process as “cultivation”.[15]

   [15] I-Kuan Tao website, <What is Tao | AUSTRALIA (NATIONWIDE) I-KUAN TAO HEADQUARTERS INC>.

4. She confirmed that ‘Tianran Zhang’ founded I-Kuan Tao. Asked what the heads of each branch are called, she said that their title was shiuping zhang. She was asked what the functions of initiators are, and she said that ‘shipuing zhang explains everything’. According to numerous sources, Zhang Tianran, who died in 1947, founded the sect in 1930.[16] The sources suggest that the sect is divided into branches, each branch being headed by a disciple, or a disciple of a disciple, of Zhang Tianran. Tian Dao temples are called Buddha halls. The Buddha hall (fotang) is the smallest organisational unit. A branch may comprise a dozen to several thousand Buddha halls. Branch leaders are called elders (quianren), and they have the right to ordain a group of functionaries called initiators (dianchuanshi). The main function of the initiators is to perform the initiation ritual. Below the initiators are the shrine masters (tanzhu).[17]

   [16] Immigration and Refugee Board of Canada, ‘China: The Tian Dao (Yi Guan Dao, Yiguandao, Yi Guandao) sect and treatment of believers by the authorities’, 14 October 1999, CHN32887.E, available at: Immigration and Refugee Board of Canada, ‘China: The Tian Dao (Yi Guan Dao, Yiguandao, Yi Guandao) sect and treatment of believers by the authorities’, 14 October 1999, CHN32887.E, available at: >

   She was asked who is shown in the picture in the altar in Buddha halls. She showed the Tribunal a photograph of a person who ‘explains things when they don’t understand’. She also showed the Tribunal photographs of followers, which she said were taken in 2016 and 2017 in [Suburb 1]. She said that she had not been to the temple for a while because of the COVID-19 pandemic and health issues. She said that the photographs on the wall in the temples are of the gods. She said that there are two kinds of Buddhas. She was asked if she knows what the oil lamp in the temples is called and what it represents. She said that there are three lamps. The middle is the iijalonu god, the right is jigong Buddha and the left is a Buddha Yuehui. (Sources state that the altar arrangement is standard in all Buddha halls: a picture of Zhang Tianran is displayed to the right of the altar, and a picture of his wife is displayed to the left. On the altar itself are displayed images of various deities, and in the centre is an oil lamp called the mother lamp (mudeng), which represents the Venerable Mother (laomu). The Venerable Mother is the supreme deity of Tian Dao.[18])

   [18] Immigration and Refugee Board of Canada, ‘China: The Tian Dao (Yi Guan Dao, Yiguandao, Yi Guandao) sect and treatment of believers by the authorities’, 14 October 1999, CHN32887.E, available at: >

   Asked what the hand in I-Kuan Tao represents, she said that it was the middle god ‘jigong’. (Tian Dao is represented figuratively by followers as a hand, the palm of which is the Dao, the ultimate way of the cosmos, and the five fingers of which are other religions that stem from it: Christianity, Islam, Confucianism, Daoism and Buddhism. Followers of the sect maintain that it is not a religion in the narrow sense, but that it represents the Dao, in which all specific religions are rooted. The sect is millenarian in outlook and believes that only its initiates will survive the impending end of the world.[19]) At the second Tribunal hearing the applicant said that the hand represents ‘respect to God’ but she had no idea what the fingers represent. She said she had not been to an I-Kuan Tao temple for a long time.

   [19] Immigration and Refugee Board of Canada, ‘China: The Tian Dao (Yi Guan Dao, Yiguandao, Yi Guandao) sect and treatment of believers by the authorities’, 14 October 1999, CHN32887.E, available at: >

   She was asked if she could explain the initiation ritual. She said that the ritual means ‘talking about the other monks who explain things’. Asked if there were requirements for new practitioners, she said that they ‘just registered and paid money but did not get a receipt and kneeled down’. (Sources state that an initiation ritual, which representatives bestow upon those whom they believe are ready for it is called "bestowing the three treasures." Tian Dao leaders accept that Christians or followers of other religions can continue to practise their religions, even after being initiated into Tian Dao.[20])

   [20] Immigration and Refugee Board of Canada, ‘China: The Tian Dao (Yi Guan Dao, Yiguandao, Yi Guandao) sect and treatment of believers by the authorities’, 14 October 1999, CHN32887.E, available at: >

   Some of the lack of knowledge about I-Kuan Tao may be explainable by the applicant’s lack of education. However the Tribunal is of the view that it is also a result of the fact that although she has been to I-Kuan Tao temples, she also practises other types of Buddhism and according to recent evidence primarily worships in a Guang Shan temple.

5. The Tribunal does accept she has visited I-Kuan temples. As noted above she had some minimal knowledge about I-Kuan Tao. She also provided a document written in Mandarin to the Tribunal without a translation. The interpreter viewed the document at the Tribunal hearing and told the Tribunal that it was a ‘before and after story’ about a person who converted to I-Kuan Tao and how much they got out of it.

6. However, her evidence was that her primary temple is Guang Shan, which is also the type of Buddhism she said is practised by her family in China. The applicant claimed in her application that she joined a temple in [Suburb 1] after arrival. At the Departmental interview she said that she did not know the address. She said that a work mate took her to the temple the first time, and she went once a month ‘normally’. She said that over 10 people attended. She was asked the address at the Departmental interview but did not know it. The delegate asked her if she had any documents to demonstrate her attendance, and she said that ‘The I-Kuan-Dao is not going to write anything or a certificate for us’. Her evidence to the Department was not convincing that she was attending a I-Kuan Dao temple. At the Tribunal hearing, she was asked if she is currently practising I-Kuan Dao. She said that she goes to temple on the first and middle of the month and is a vegetarian. Noting that she said that she had not been to the temple for a while because of COVID-19, the Tribunal asked her at the second hearing when she last went to the temple. She said that she goes two or three times a month if she is not too busy, and even if she does not attend, she gives donations for elders who need food. The primary temple she attends is [named] Temple, a Guang Shan temple in [City 1], about an hour from her home. She also goes to another Guang Shan temple in [Suburb 2]. She said that they sing and read scriptures. She also attends on the first and fifteenth day of the month of the lunar calendar to eat vegetarian food. She does not have friends there as she leaves straight after the service.  She said that one of the elders is a ‘fellow countryman’ who knows her personally. She only attends if the first or fifteenth day of the month fall on a weekend as she works during the week. She said that there are pictures on the wall of elders. She said that she is poorly educated so cannot read their names.

7. At the second Tribunal hearing the applicant confirmed that she and her family practised Jiliu Buddhism and that she and her parents and younger [sibling] were still practising Jiliu Buddhism. She said that she goes to assemblies in the town hall and prays to the gods when she needs anything or is down. She said that she also practises I-Kuan Tao. She said that she worships the following ancestors: Jhang Tian lan, Ming Ming Shang Di, Wu Jilaomu (infinite mother), Icun Hui Ming, Kuan-Yin Buddhism, Mitreya Buddhism and Jigong Buddhism. Asked how this form of Buddhism relates to I-Kuan Tao, she said that she cannot remember but she knows I-Kuan Tao can help her with her physical and mental health.

8. The applicant said that the temple she attends is a Jiliu Buddhism temple in Australia. She goes there about four times a month, but also attends temporal assembly where she is an observer. At the Tribunal hearing she provided a note from Fo Guang Shan [specified] Temple in relation to the ‘Qing Ming Dharm Service’. The note stated that the temple was ‘hosting a special Dharma service to commemorate the Qing Ming festival’, the 2 April Qing Ming Dharma Service. She said that the service ‘was an assembly and people write down scriptures’. She also provides donations (she provided to the Tribunal an untranslated note which she said was a request for a donation). She said that the temple asks people to bring friends and it is for a good purpose, that is, to help others. She said that this is the primary temple she attends.

9. She said that the assembly she attends is for I-Kuan Dao, which some people belong to. She said that for her it does not matter which Buddhist temple she attends, she just goes along when notified. She said that she sometimes goes to the I-Kuan Dao assembly, but on other days she goes to other temples. She clarified that she is happy to go to a variety of temples to practise I-Kuan Tao or other forms of Buddhism as she is open to all beliefs and believes in all the Gods. She said that it is not important for her to go to I-Kuan Dao temples, and she is happy to go to any Buddhist temples. She said that the beliefs are similar in the various forms of Buddhism. She gives money donations when she attends but does not ask for a receipt as she ‘does it from her heart’.

10. The Tribunal notes that it is difficult to establish from the above evidence exactly what form of Buddhism her family practised and continues to practise in China. The Tribunal notes that she has some basic knowledge of I-Kuan Dao. However, she has said that her family practised Jiliu Buddhism, which she also practised in China, and that she still practises this in Australia. She provided details of the Fo Guang Shan [specified] Temple she attends. This temple practises ‘Fo Guang Shan’ Buddhism. The temple has a website. In its ‘about us’ tab it refers to ‘Fo Guang Shan’ which is described as follows: ‘Since its establishment in 1967, the Fo Guang Shan Buddhist order has evolved from a small monastery atop a mountain of bamboo forest to become the largest Buddhist monastery in Taiwan. It has also become an internationally recognised site of pilgrimage under the guidance of Venerable Master Hsing Yun. Master Hsing Yun has inspired the selfless devotion of over 1.000 ordained disciples as well gained the ardent support of many lay devotees to assist him in bringing faith, happiness, hope and convenience to others’.[21] She also referred to attending a Guang Shan temple in [Suburb 2]. Various sources refer to a Guang Shan temple being in [Suburb 2].[22]

    [21] [Source redacted].

    [22] [Source redacted].

11. Sources indicate that there are at least 18 or 19 divisions of the I-Kuan Dao faith.[23] The divisions include: Tianxiang, Fayi, Xingyi, Baoguang, Jichu, Wenhua, Fasheng, Qianyi, Tianxiang, Jingguang, Tianzhen, Huiguang, Huaoran, Zhongyong, Andong, Mingguang, Puguang, Changzou, Chande and Zhengyi.[24] Of the divisions, Fayi, Xingyi, Baoguang and Ji Chu are said to be the most competitive, covering over 90% of total I-Kuan Tao Buddha Halls and the population.[25] The Ji Chu division is considered one of the most well-established of the faith. Adherents of the Ji Chu follow the I-Kuan Dao principles but practise their own variations of the rituals and, as with other divisions, they have their own temples.[26]

    [23]  Association for the Sociology of Religion, Yunfeng Lu and Graeme Lang, <Impact of the State on the Evolution of a Sect>, 01 January 2006, and Journal of the Graduate School of Letters, 9: 41-53, Ka Shing NG,<Yiguan Dao in Hong Kong: A Case Study of its Organizational Characteristics and Conversion Experiences of Adherents>,  01 March 2014.

    [24] Association for the Sociology of Religion, Yunfeng Lu and Graeme Lang, <Impact of the State on the Evolution of a Sect>, 01 January 2006.

    [25]' Association for the Sociology of Religion, Yunfeng Lu and Graeme Lang, <Impact of the State on the Evolution of a Sect>, 01 January 2006.

    [26] Journal of the Graduate School of Letters, 9: 41-53, Ka Shing NG, <Yiguan Dao in Hong Kong: A Case Study of its Organizational Characteristics and Conversion Experiences of Adherents>,  01 March 2014; see also < (esp pages 39, 59, 91, 105, 175 and 189, which identify the variations for the Ji Chu Zhong Shu branch of the faith); and Yunfeng Lu, <‘Chinese Traditional Sects in Modern Society: A Case Study of Yiguandao’> pages 67, 221-224.

12. One author who examined I-Kuan Dao in the context of Chinese traditional sects in modern society noted in 2005 that there were over 4,000 Ji Chu temples.[27] The locations of these temples are not explicitly stated, and it is unclear if this figure extends to mainland China, or whether it is confined to Taiwan and/or Hong Kong. There is, however, some information that an adherent of the Ji Chu faith raised sufficient funds to build a ‘super temple’ in Yulin, Guangxi, China.[28]

    [27] Yunfeng Lu, ‘Chinese Traditional Sects in Modern Society: A Case Study of Yiguandao’, City University of Hong Kong, January 2005, see, in particular, pages 221-224.

    [28] Yunfeng Lu, ‘Chinese Traditional Sects in Modern Society: A Case Study of Yiguandao’, City University of Hong Kong, January 2005, pages 142. 67, 221-224.

13. The applicant did not refer to Ji Chu or any of the other types of I-Kuan Dao referred to in these sources, although at the Department hearing she did describe some practices which take place in I-Kuan Dao temples. It is possible that when referring to Jiliu she meant Ji Chu, however the interpreter did confirm the spelling of the word she was using as ‘Jiliu’. Furthermore, even if she was referring to Ji Chu the temples she attends in Sydney are not I-Kuan Dao temples but rather are ‘Guang Shan’ temples.

14. The Tribunal accepts, on balance, after considering the evidence before the Department and Tribunal, that the applicant has primarily practised ‘Guang Shan’ Buddhism, which she also refers to as Jiliu Buddhism, which may also be a different type of Buddhism. The Tribunal accepts that she and her family may also follow I-Kuan Tao practices at times, and that she occasionally attends an I-Kuan Dao temple. Sources do indicate that in mainland China, the followers of I-Kuan Dao are likely concentrated in Guangdong and Fujian province, where it has gradually been re-establishing itself through the work of missionaries from Taiwan and Hong Kong.[29] Followers who have been formally inducted into I-Kuan Dao, who follow a vegetarian diet, and have taken a vow to spread the mission of the Tao, may apply for permission to establish their own mu-tang. [30] The applicant did mention vegetarianism and having a family shrine. Given her very basic knowledge of matters such as initiation, the altar and cultivation, the Tribunal does not accept that she is a devout follower of I-Kuan Dao. In fact, she confirmed to the Tribunal that in Australia she primarily attends the Guang Shan temple and had not attended an I-Kuan Dao temple for a long time. She also confirmed that she does not mind what type of Buddhist temple she attends.

    Was the applicant harmed in China because of her practise of I-Kuan Dao and did she leave China for this reason?

    [29] Department of Foreign Affairs and Trade, DFAT Country Information Report: People's Republic of China, 22 December 2021; Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: People’s Republic of China’, 21 December 2017, [3.36].

    [30] Joseph J.F. Chen, <'I-kuan Tao Temples, Rituals and Ethics'>, Author House, 01 January 2005.

15. The applicant claimed in her application that in 2014 she was ‘doped’ by someone and jailed for two days by the police. She claimed that she was tortured and abused. She also claimed that she was detained by police in 2015 after being caught at the Qing Ming Festival. She said that she had to ‘pay even more of a recognisance on this occasion’. She claimed that she became afraid to practise at home and so began attending temples, but this was difficult due to their illegality and for this reason she decided to leave China for Australia. She arrived in Australia in 2015.

16. At her interview with the Department, she said that she was detained in 2014 because ‘someone was against I-Kuan Dao and that person reported me to the government and I was arrested’. At interview she said that she was not given food and had to stand. Her evidence about when she was arrested and the details of the arrest is set out below:

    A: 2014

    D: Why were you arrested?

    A: Because someone was against I-Kuan Dao and that person reported me to the government and I was arrested

    D: What happened when you were arrested

    A: I was detained for two days. They told me never to go again. They didn’t give me food and didn’t let me sleep. They told me to stand there instead of laying down to sleep. They also made me pay a fine

    D: Is this the local police?

    A: Yes the local police

    D: Then what happened?

    A: After that they wanted me to pay the fine. The first time the fine was 5000.

1. She said in her application that her husband was guarantor for her bail on the basis that she stopped practising her religion. At the Department interview she said that she had to pay a fine to local police.

2. The applicant told the Department that at the Qing Ming Festival in 2015 she was arrested again by police while she was preaching her religion. She claimed in her application that she had to pay money to get released. She said that she was under surveillance and had to report to the police weekly. In her Departmental interview she said that ‘this time my husband was asked to help in bailing me out ‘. He did not help her as he did not have money so a friend helped her. She stated as follows in her interview:

   D: What happened there

   A: This time my husband was asked to help in bailing me out otherwise the fine would have been much more

   D: Did he?

   A: My husband didn’t go he didn’t have the money

   D: So what happened?

   A: I asked my friend to help to borrow money and to pay to them

   D: The local police station, what’s the name of the local police station?

   A: That person is named Police [B], Officer [B]

   D: What is the police station, the location of the police station

   A: Shandong province.

3. During the first Tribunal hearing the applicant was asked if she had any problems with the authorities in China. She said that she was temporarily detained for two days in 2012. She was at home after praying, and the police came to her house and arrested her. After two days she was released on bail. The Tribunal asked her why she had not mentioned this earlier in the hearing when asked on a number of occasions about why she had come to Australia. She said that her ‘head reacts slowly’. Asked why she was detained for two days, she said that it was because she went to the temple to listen to the monks teaching. She said that according to the authorities, she broke the law as it was not legal to listen to the monks. Asked if praying in the Buddhist temple was not legal, she said it could ‘influence other people’. She said that she had no further problems from the authorities between 2012 and 2015.

4. The Tribunal does not accept that the applicant was arrested in China because she practised I-Kuan Dao. Her evidence about these arrests was inconsistent in the various accounts she has provided, did not contain the kind of detail commensurate with truth and she also did not refer to arrests as a reason for leaving China, which could reasonably be expected if it had in fact happened. Furthermore, country sources do not suggest that practitioners such as the applicant are persecuted for occasionally practising I-Kuan Tao.

5. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. The Tribunal has considered the evidence in its entirety and not in isolated parts, an approach supported in a number of cases including Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997) and the Migration and Refugee Division ‘Guidelines on the assessment of credibility’.[31] The Guidelines state that the Tribunal must consider all evidence before it assesses whether contradictions, omissions or inconsistencies are material to an applicant’s claims and would lead to an adverse finding of credibility.[32]

   [31] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >

   When considering the inconsistencies in the context of the totality of the evidence, the Tribunal is not satisfied that the arrests took place. In her application and at the Departmental interview, she said that she was arrested on two occasions in 2014 and 2015 and in 2014 her husband paid a fine. However, at the Tribunal hearing she said that she was arrested only once in 2012 and her husband could not pay the bail. She also did not mention in her Departmental interview that her husband had to guarantee her bail in 2014, referring to this in relation to the 2015 arrest. When asked about these inconsistencies by the Tribunal, she said that she could not remember all these things and that she was detained twice, once in 2014. The Tribunal is not required to accept uncritically claims made by an applicant[33]. The Tribunal does not accept that she would not readily remember how many times she was detained. She also provided minimal description of the arrests and detention, which would have been expected had she had direct experience of them.

   [33] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155.

6. The Tribunal also does not accept that she was arrested in China or that she left China because she felt persecuted because of her religion, as she did not mention the arrests when asked why she departed or what she fears. She told the Department that she came to Australia as she had no money at the time, and she told the Tribunal that she travelled to Australia to look for work and to escape her husband. She was asked if there were other reasons besides wanting work and fearing her husband for coming to Australia and she responded that she enjoyed the freedom, and also the work that Australia provides, and that she cannot go back.  She said that she could not imagine the ‘abusive scene’. Asked what she meant by ‘the abusive scene’ she said in China there is no work and no money but in Australia she has freedom. Again, when asked why she did not bring her children to Australia, she said that they were young, and she had to look for work. She said that she left them with her mother. Despite being asked on a number of occasions for her reasons for leaving, she did not refer to the instances of arrest or leaving the country for reasons of her religion.

7. Finally, independent sources do not suggest that practitioners such as the applicant are persecuted in China. These sources are discussed later in this decision.

8. For all these reasons, the Tribunal does not accept that the applicant was harmed in any way due to her religion when living in China.

   Did the applicant suffer domestic and family violence in China?

9. The applicant claimed in her Department application that she was beaten by her husband. She said that she asked for help from the local government who told her to follow the instructions of her husband and his family. She claimed that after the second arrest, her husband continued to beat her up, but she could not seek help from the local authorities, as they thought that she would not stop practising her religion. At the second hearing, she also mentioned that he had sexually assaulted her.

10. The Tribunal accepts that the applicant suffered domestic and family violence in China up until 2012.

11. She has made this claim since she first applied for protection. Furthermore, when asked at the Tribunal hearing for reasons that she moved to Fuqing City in 2012, she said that she was ‘tortured back home’ so she went to Fuqing to get some friends to help her. She was asked what she meant by ‘tortured’. She said that there was family violence, so she ‘had to get away from him’ and she took her daughters with her. She explained that at a later time, the factory did not allow children so she had to leave.

12. Additionally, when asked by the Tribunal why she came to Australia, she said that it was because of family violence and because she could not make enough money, so she asked some friends about travelling to Australia. She had said that she moved away from her husband in 2012 to Fuqing City and got help from Jiliu Buddhists. She said that she was hoping to make some money when she travelled to Australia. Her husband was not happy about this and abused her. She felt that she would be free from her husband and not face violence.

13. The Tribunal asked if there was physical violence. She said that after they were married and before she separated from her husband, he did not allow her to eat or drink, ‘things like that’ and when in a bad mood he would lose his temper. She said that she went to the police, but they did not want to get involved. Asked how many times she went, she said that she went twice. Asked if she had copies of the police reports, she said that she did not. She was asked why she said in her application that husband beat her up, but when asked about this by the Tribunal, she said he would not let her eat or drink. She said that she did not want to comment. She said that her husband beat her and sexually assaulted her. She feels fear when she thinks of him at night.

14. Notwithstanding some differences in the various accounts in the evidence, the Tribunal accepts that the applicant was a victim of domestic and family violence, given that this has been mentioned on a number of occasions and she also referred to it as a reason for fearing returning to China.

    The refugee criterion - does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

15. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country[34].

    [34] Section 5H(1) of the Act.

16. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

17. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·     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 above; and

    ·     the real chance of persecution relates to all areas of a receiving country.

    Does the applicant fear being persecuted for one of the stated reasons?

18. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.  This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

19. The Tribunal is not satisfied that the applicant fears being persecuted for reasons of religion. As referred to earlier, when asked why she fears returning to China, she mentioned a number of factors, but religion was not one of the reasons given. When asked by the Tribunal why she feared returning to China, she said that she fears retuning to China  because there is no job for her, and the expenses would be huge. She was asked if there was any other reason she fears returning, and she responded that her husband might look for her and ‘l repeat the history’. She did not mention fearing returning to China for reasons of her religion. The Tribunal does not accept that if invited to give reasons for fear of returning that she would not mention fear of the authorities persecuting her for her religion if she genuinely held such a fear.

20. The Tribunal is satisfied that the applicant has a genuine fear of returning for reasons of domestic and family violence and for reasons of fear of unemployment.

    Is there a real chance of serious harm if the applicant were to return to her home country?

21. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Refugees Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[35]; not only must a person fear persecution, there must also be a prospect of that fear being realised.

    [35] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>

    The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[36]

    [36] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

22. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.

23. The applicant claims that she would continue to practise I-Kuan Tao if she returns to China.

24. The Tribunal is not satisfied that the applicant would practise I-Kuan Dao if she returns and finds that it is more likely that she would practise a form of Buddhism similar to Guang Shan if she returns, given that she is practising it in Australia and described it as Jiliu Buddhism, which she said that her family are also practising in China.

25. Whether she practises Guang Shan Buddhism or I-Kuan Dao, the Tribunal is not satisfied that there is a real chance of serious harm were she to practise in China.

26. Importantly, her family continues to practise Jiliu Buddhism and/or I-Kuan Dao in China and she has not provided evidence of their arrest, harassment or ill-treatment. When the Tribunal asked her why she fears practising her religion in China if her family can do so without harm, she told the Tribunal that she is used to life in Australia so wants to stay in Australia. She asked the Tribunal to help her stay in Australia.

27. Further, the Tribunal has not accepted that she was arrested in the past for reasons of her religion.

28. In any event, country information suggests that the attitude of the Chinese government to I‑Kuan Dao has changed and practitioners are unlikely to be arrested or otherwise harmed or harassed.

29. According to a recent paper, ‘often considered one of the fastest-growing religious movements in Asia, Yiguandao (the usual emic transcription is “I-Kuan Tao”) grew from a centuries-old sectarian context in late imperial China, but it was only in early twentieth-century northern China when Yiguandao emerged as an independent religious community. It exhibits an innovative synthesis of Confucian, Buddhist, and Daoist teachings and practices, as well as sectarian traditions and popular religious influences (Jordan and Overmyer 1986; Lu 2008; Billioud 2020).’[37]

    [37] N Broy, “Nodes and Hubs: An Exploration of Yiguandao Temples as ‘Portals of Globalization’”, Institute for the Study of Religions, Leipzig University, 23 February 2022.

30. I-Kuan Dao was established in its modern form in China in the 1930s and has deep roots in Chinese popular belief systems.[38] It is estimated that it grew to 12 million members by 1947.[39] It was banned by the Chinese government in 1946 as a xie jiao, which is often translated as ‘cult’ or ‘evil cult’ but in fact means ‘heterodox teachings’.[40] In the 1950s, it was the subject of a nationwide crackdown by the Chinese Communist Party, during which 820,000 leaders and organisers, and 13 million followers, were arrested, with thousands killed in the gaols.[41]  As a consequence of the persecution, I-Kuan Dao was almost eradicated in mainland China by the mid-1950s.[42] Sources suggest that it was able to gradually re-establish itself in mainland China in the 1990s and 2000s through the influence of Taiwanese I-Kuan Dao followers and a shift in attitude by the Chinese government. I-Kuan Dao had survived in Taiwan, where it had operated legally from 1987 and was popular among prominent Taiwanese business people, some of whom invested significantly in China and quietly brought I-Kuan Dao to their mainland factories.[43]

    [38] Bitter Winter, ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’, 6 November 2018, < Bitter Winter, ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’, 6 November 2018, < Bitter Winter, ‘Yiguandao: The Original Xie Jiao’, 8 November 2018, <

    [41] Bitter Winter, ‘Yiguandao: The Original Xie Jiao’, 8 November 2018, <

    [42] Bitter Winter, ‘Yiguandao: The Original Xie Jiao’, 8 November 2018, <

    [43] Bitter Winter, ‘Yiguandao: The Original Xie Jiao’, 8 November 2018, < Edward Irons, ‘Yiguandao’, World Religions and Spirituality, 2 December 2017, <>

    The Tribunal has had regard to the following information from the Department of Foreign Affairs and Trade (DFAT)[44]:

    Yi Guan Dao (YGD, also: Tian Dao or I-Kuan Tao) is a syncretic Chinese religion combining elements of Buddhism, Confucianism and folklore. In December 1950, YGD was the target of a nationwide crackdown, after which the group was driven underground. It sought to re-establish itself following China's cultural revolution, but quickly became the target of campaigns of arrests in 1983.

    YGD beliefs may take different forms in different communities and might be influenced by different religions when established in different places around the world. Most practitioners are vegetarian. As with other xie jiao [illegal cults], the range of communities and propensity to split means that different adherents might have different beliefs.

    While YGD continues to be prohibited in China, it is not included on the list of active cults released in 2017 (see xie jiao (illegal cults)). The Dui Hua Foundation reports YGD followers in mainland China are likely to be concentrated in Guangdong and Fujian. The current status of the group is not clear, but data on court cases collected by Dui Hua found that arrests and imprisonment of members does occur, for example for proselytisation activities.

    YGD is not as large as it used to be but reports of some attention by authorities continue. Members are not allowed to practise their religion freely. DFAT assesses that members of YGD face a moderate risk of official discrimination and a low risk of societal discrimination.

    [44] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: China’, 22 December 2021.

31. In December 2018 the Dui Hua Foundation reported on the treatment of I-Kuan Dao members throughout China. Most instances of ill-treatment were prior to 2006; however, there were some more recent reports of repression. In February 2018, a couple from Jiangsu was given suspended sentences for printing illegal religious books, including over 3,000 copies used by I-Kuan Dao adherents at a private gathering. A year earlier, police had detained the couple for printing nearly 8,000 copies of unlicensed Buddhist titles. The couple was convicted of illegal business activity, a charge frequently used against religious groups and private individuals operating outside the state’s control. In 2018 the Chenghai District government in Shantou, Guangdong, issued a notice concerning the I-Kuan Dao, labelling it a “superstitious secret society”, and stating that I-Kuan Dao carries out “infiltration and sabotage” in the name of “prostrating to Buddha” and “doing good deeds” when in fact they are “seriously and adversely affecting the socialist construction of spiritual civilization… and normal life of the people.” I-Kuan Dao followers were called to register with local police, write a statement of repentance, and vow not to re-join I-Kuan Dao.[45]

    [45] Dui Hua Foundation, ‘The Resurgence of Yi Guan Dao', 31 December 2018.

1. Over the years, I-Kuan Dao had an increased focus on Confucian values[46]. Sources suggest that a movement to restore traditional Chinese culture that emerged in mainland China in the 1990s led to demand for Taiwan’s experiences in the promotion of reciting Chinese classics and poems.[47] As part of this movement, Taiwanese I-Kuan Dao educators began to be discreetly invited to the mainland by the Chinese government to help promote Chinese tradition and slow down the rapid growth of Christian churches in rural areas.[48] Thereafter, there was further communication and interactions between Taiwanese I-Kuan Dao representatives and the Chinese government, some of which it was hoped would lead to I‑Kuan Dao being legalised in China.[49] . The United Front Work Department invited several top leaders of I-Kuan Dao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[50] The National Studies Fever of the 2000s provided a means for I-Kuan Dao to contribute to the revitalisation of traditional culture. The call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. Sources suggest that scholars, educators and parents were devoted to the trend and the state invested national resources to construct infrastructure and to promote the movement. Furthermore, Confucius institutes were established and there are now 500 branches offering 1,000 courses in China, educating in the Chinese language. According to one source, I-Kuan Dao associations made donations to assist victims of several natural disasters, leading to mutual understanding with authorities.[51]

   [46] Edward Irons, ‘Yiguandao’, World Religions and Spirituality, 2 December 2017, < Cheng-tian Kuo (ed), ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8, Religion and Nationalism in Chinese Societies, Amsterdam University Press, 2017, p.243.

   [48] Ibid, pp.234, 243-244.

   [49] Ibid, pp.244-245;  Dui Hua Foundation, 'The Resurgence of Yi Guan Dao', 31 December 2018, < Bitter Winter, ‘Yiguandao: The Original Xie Jiao’, 8 November 2018, < Edward Irons, ‘Yiguandao’, World Religions and Spirituality, 2 December 2017, < Cheng-tian Kuo (ed), ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8, Religion and Nationalism in Chinese Societies, Amsterdam University Press, 2017, p 245.

   [51] Cheng-tian Kuo (ed), ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8, Religion and Nationalism in Chinese Societies, Amsterdam University Press, 2017.

This evidence of inviting leaders to China and the academic revival of Confucianism, and the fact I-Kuan Dao has not appeared on the xie jiao lists of 2000, 2005 or 2017,[52] suggests I‑Kuan Dao has gained some degree of tacit acceptance by the Chinese government, although it has been illegal and had a history of harassment in the past and DFAT suggests that there may be some discrimination against practitioners.[53]

[52] Cheng-tian Kuo (ed), ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8, Religion and Nationalism in Chinese Societies, Amsterdam University Press, 2017, p 245.

[53] Country of Origin Information Services Section, Department of Immigration and Border Protection, China: CI170518131121268 – ‘Yiguandao (Yi Kuan Tao, I-Kuan Tao, Tian Dao)’.

I-Kuan Dao is no longer considered to be an ‘evil cult’. Academic Assistant Professor in Chinese Religion Studies at Taiwan’s National Chengchi University, Ching-chih Lin, states that:

[…] Some branches of Yiguandao sent followers back to China to set up preschools and extracurricular schools with specialization in reading Chinese classics and poems, plus highlighting moral teaching, which differentiates them from their regular competitors. In the 21st century, Yiguandao has been afforded a very promising opportunity to return to mainland China as part of the National Studies Fever. In fact, Yiguandao’s return was tacitly connived at by the PRC for multiple purposes: to promote the grassroots organizations of National Studies Fever, to win over the Taiwanese and overseas Chinese, and to stop the rapid growth of Christian churches and sects in rural areas.[54]

[54] Ching-chih Lin, ‘Yiguan Dao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, pp 243-244.

According to Assistant Professor Ching-chih Lin, representatives of the mainland Chinese government engaged in dialogue with I-Kuan Dao representatives in Taiwan in the 1990s and 2000s. He references material which suggests that the government is seeking a way to allow I-Kuan Dao to return to mainland China and states:

In fact, the backroom communication between the PRC and Yiguandao representatives started in the 1990s, and the public interactions began in the mid-2000s. In the first stage, the PRC government sent scholars with special backgrounds, such as retired police officers or officials of the Taiwan Affairs Office or the United Front Work Department to contact Yiguandao in Taiwan and abroad. Yang Liuchang (楊流昌), an official of the Taiwan Affairs Office, earned a PhD in Beijing investigating the history of Yiguandao and its development in Taiwan and published his dissertation in Hong Kong. This book suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China as it concentrates on the process of legalization and negotiations between the KMT and the religion.’[55]

[55] Ching-chih Lin, ‘Yiguan Dao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, p 244.

The Assistant Professor also notes that the Chinese authorities did not include I-Kuan Tao on the official list of evil cults issued in 2000, indicating a change in attitude. This was strengthened by invitations to I-Kuan Dao leaders to visit mainland China from 2006. He acknowledges that in the past, most activities of I-Kuan Dao in mainland China were under surveillance and some religious leaders were arrested or exiled. He states that there is now mutual understanding, which began in the early 1990s when I-Kuan Dao associations made donations to assist victims of several natural disasters. I-Kuan Dao leaders entrusted messages to scholars to communicate with the think tank Institute of World Religions, Chinese Academy of Social Science in 1996 and invited the Institute’s faculty members to visit branches of I-Kuan Dao and attend academic forums organised by the religion from 1997 onwards. I-Kuan Dao leaders were invited to visit mainland China from 2006 onwards.[56]

[56] Ching-chih Lin, ‘Yiguan Dao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press.

100.   The United Front Work Department invited several top leaders of I-Kuan Tao to branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[57]

[57] Ching-chih Lin, ‘Yiguan Dao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, p 245.

101.   Research undertaken by the Country of Origin Information Services Section of the Department of Home Affairs, in a report dated 7 June 2017[58], did not locate any information from searches of I-Kuan Dao practitioners being arrested, detained or imprisoned in mainland China. Searches undertaken through Google in October 2022 also did not reveal such information.  It is acknowledged that it is difficult to locate information about hostile actions of authorities in China towards their citizens, however, were practitioners of I-Kuan Dao being harmed, it is likely that there would be some reporting on it. When this information was put to the applicant at the Tribunal hearing, noting that she did not mention that she feared returning to China for reasons of her religion, she said that she had experienced harm. The Tribunal has not accepted that she suffered harm in China on the basis of her religion, for the reasons set out earlier.

[58] Country of Origin Information Services Section, Department of immigration and Border Protection, China: CI170518131121268 – ‘Yiguandao (Yi Kuan Tao, I-Kuan Tao, Tian Dao)’.

102.   Sources also suggest that Fo Guang Shan is flourishing in China at a time when there are restrictions on many other beliefs, and that President Xi Jinping is one of its backers. The President met with the Fo Guang Shan founder, Hsing Yun, when he visited China.[59]

[59] < China Daily, 7 February 2023, ‘Fo Guang Shan founder Hsing Yun dies at 95’,  The applicant is only at most an occasional practitioner of I-Kuan Dao, primarily practises Fo Guang Shan Buddhism, and is happy to attend any form of Buddhist worship. She is not a leader or activist, and her practise of the religion appears to be irregular.

104.   On the basis of her personal circumstances, her family’s situation and the country information, the Tribunal is not satisfied that there is a real chance of serious harm because the applicant and/or her family are members of I-Kuan Dao or Buddhist practitioners.

Does the applicant have a well-founded fear of persecution for reasons of domestic and family violence?

105.   The Tribunal is not satisfied that there is a real chance of serious harm from the applicant’s ex-husband.

106.   At the second hearing, the applicant added to her earlier evidence and said that her husband had sexually assaulted her during their marriage. While the Tribunal accepts that he inflicted domestic and family violence on her during the marriage, including sexual assault, she confirmed that she had not seen him since 2012 when they separated. Although she claimed he would not divorce her, and she was afraid of his voice, she lived in a different town from him and had no contact with him. He lived in his hometown, [Town 2]. At the Tribunal hearing, it was put to the applicant that she had had no contact with her ex-husband between 2012 and 2015, which would indicate that he was not intent on harming her if she lived in her town. She said that he would look for her and had demanded money from her. The Tribunal does not accept that he would look for her, given that he did not do so previously. The Tribunal notes that she does have her parents and other family members in Fujian, who could provide support to her.

107.   The Tribunal is not satisfied, therefore, that the applicant faces a real chance, that is a substantial or non-remote chance, of serious harm on the basis of domestic or family violence from her former husband.

108.   At the second Tribunal hearing the applicant told the Tribunal that she had suffered a great deal as a child. She said that her mother believed that boys were more important than girls, and so the applicant stopped attending school and did housework as her mother did not approve of her attending school. She said that she was made to take care of the pigs, and her mother beat and cursed her if things were not done perfectly. She said that she was not allowed to sleep at night and so slept with the pigs. She said that she suffered so much that she did not dare go back. She said that her mother is still alive and is ‘over [age] years old’. Her mother has aged, trembles a lot and has epilepsy. Asked if she still fears her mother, she said that she does but she is her mother. She said that she takes care of her sons and does not think of her daughter. Her mother wants the applicant to send money to her, but she helps people in need at the temple in Sydney and does not send her mother money.

109.   The applicant said that she hopes the Tribunal will approve the case so she can stay in Australia. She has told the truth even though she does not have a high level of education. For her future life she would like to own a property and earn money and does not want to continue a life where she sleeps with pigs.  

110.   The Tribunal accepts that the applicant had a very sad and difficult childhood. The Tribunal is not satisfied that there is a real chance of serious harm from her mother if she returns, given her mother’s age and health. The applicant told the Tribunal she would like her adopted daughter to come to Australia as she does not want her to have a miserable life in China. She said that if she could stay in Australia, she would give donations to people in need.

111.   The Tribunal has significant sympathy for the applicant, who clearly suffered during her childhood and wishes to remain in Australia, where she has lived since 2015, and with which she has developed a familiarity and affinity. However, the Tribunal is not satisfied that she meets the refugee criterion for the visa.

Does the applicant have a well-founded fear of persecution because she fears being unable to find a job?

112.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion because she could not find a job, if that were in fact to be the case. If she did suffer any financial difficulties, there is no evidence before the Tribunal that such an outcome would be for one of the reasons set out in the legislation. The Tribunal notes also that she does have family support in China.

Findings on refugee criterion

113.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.

Does the applicant meet the complementary protection criterion?

114.   If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa 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 (the complementary protection criterion).The evidentiary standard is ‘substantial grounds for believing’.

115.   ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.

116.   In accordance with Ministerial Direction No.84, the Tribunal must have regard to the Department’s Complementary Protection Guidelines[60]. Unless policy is unlawful or there are cogent reasons as to why the Department should depart from the policy, the Tribunal should have regard to government policy or policy from regulatory agencies. However, policy should not simply be applied without independent government scrutiny and to do so would be an error of law (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60). The Complementary Protection Guidelines are comprehensive and useful, and do not appear to be inconsistent with authoritative case law regarding s 36(2)(a).

117.    Section 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: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance of serious harm for reasons of her religion or due to domestic violence, for the reasons set out earlier. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation occurring were the applicant to be removed from Australia to China.

118.   The use of the words ‘necessary’ and ‘foreseeable consequence’ requires a causal and temporal connection between the removal of the applicant and the real risk of significant harm. The Tribunal is not satisfied that the applicant would not be able to get a job as a necessary and foreseeable consequence of her being removed from Australia to China. If in fact she were not able to get a job, it could be for a number of reasons rather than due to her removal. The Tribunal is also not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation because she could not find a job, if that were the case. The Tribunal is not satisfied that she would be arbitrarily deprived of her life, or the death penalty would be carried out, or she would 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’ require intentional infliction of harm, which would not be the case.

Findings on complementary protection

119.   The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk of significant harm.

[60] Department of Home Affairs, PAM 3, Refugee and humanitarian – complementary protection guidelines, re-issued 21 May 2015.

CONCLUDING PARAGRAPHS

120.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant 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, the applicant does not satisfy the criteria in s 36(2).

   DECISION

123.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Jane Marquard
Member

Attachment A  -  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.

…