1721032 (Refugee)

1721032 (Refugee) [2023] AATA 2582 (27 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1721032

COUNTRY OF REFERENCE: China
MEMBER:Rachel Da Costa
DATE:27 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 June 2023 at 10:25am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – home church members – detention of family members – religious education of children – return visits to China – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, r 1.12; Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 August 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 29 April 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
The first applicant (the applicant) is [an age]-year-old woman from China. The second applicant is [an age]-year-old man from China and is the applicant’s husband. The third applicant is [an age]-year-old boy who was born in Australia. The fourth applicant is [an age]-year-old girl who was born in Australia. The third and fourth applicants are the children of the applicant and the second applicant.
In her protection visa application form, the applicant provides the following information. The applicant and second applicant have both overstayed visas in Australia. The applicant was born in Fuqing city, Fujian province, China. She speaks, reads and writes Chinese Mandarin and English. She is a Christian. She is married.
In China, she has her parents and [a sibling]. She is in contact with them by phone. In China, she always lived at [an address in] [Town 1], Fuqing city, Fujian province. The applicant completed middle school in China in [specified year]. From [year] to [year], she studied at [a named school] in Fuqing. She then came to Australia at attended High School from [year] to 2009 and did further study.
The applicant last arrived in Australia [in] February 2014 from China. She travelled on her Chinese passport with expiry date [in] 2017 and she held a Student visa.
When she first arrived in Australia, she held a Student visa which was valid until 15 March 2010. She held a further Student visa which was valid until 15 March 2014. She has returned to China several times since arriving in Australia to visit her family. In Australia, from 2008 to 2014, she worked as a [role] in a [business].
The second applicant provided the following information. He speaks, reads and writes Chinese. He is a Christian. He is married.
In China, he has his mother, father and sister. He is in contact with them by phone. In China, he always lived [at an address in] [Town 1], Fuqing city. He completed High School in China at [a named school] in [year]. In Australia, he has done casual work [in specified roles].
He last arrived in Australia [in] March 2007 from China. He travelled on his Chinese passport with expiry date [in] 2011. He held a Student visa which was valid until 16 September 2007. He held a further Student visa which was valid until 16 September 2009. He has subsequently obtained a new passport with expiry date [in] 2022. The second applicant has not returned to China since his arrival in Australia.
The third applicant’s protection visa application form indicates that he is a Chinese citizen, he was born in Australia in [year] and he is under the legal custody of the applicant and second applicant. The fourth applicant was added as a protection visa applicant in [year]. The applicant provided a copy of her New South Wales birth certificate from [year] to the Department along with a completed Form 1022.
Evidence before the Department
Migration history
As set out in the delegate’s decision, the migration history of the applicant is as follows:
·     31 July 2007: Student visa granted, valid to 17 November 2009
·     [August] 2007: arrived in Australia
·     17 November 2009: Student visa granted, valid to 30 June 2011
·     [January] 2010: departed Australia
·     [February] 2010: arrived in Australia
·     [February] 2011: departed Australia
·     [March] 2011: arrived in Australia
·     20 June 2011: Student visa granted, valid to 14 May 2014
·     [April] 2012: departed Australia
·     [June] 2012: arrived in Australia
·     [January] 2014: departed Australia
·     [February] 2014: arrived in Australia
·     15 May 2014: became an unlawful non-citizen
·     [date]: third applicant born
·     29 April 2016: applied for a Protection visa
·     10 May 2015: granted a Bridging C visa
·     [date]: fourth applicant born
As set out in the delegate’s decision, the migration history of the second applicant is as follows:
·     11 February 2007: Student visa granted, valid to 20 June 2007
·     [March] 2007: arrived in Australia
·     20 June 2007: Student visa granted, valid to 16 September 2009
·     17 September 2009: became an unlawful non-citizen
·     29 April 2016: applied for a Protection visa
·     10 May 2016: granted a Bridging C visa
Protection visa application
In a written statement entitled “Statement for my whole family” provided with the protection visa application forms, translated into English, the applicant makes the following claims:
·     She grew up in Fujian and came to Australia in 2007 as an overseas student.
·     Her parents are Buddhists.
·     She graduated from High School in Australia and from further study in 2013. Due to the financial hardship of her parents she was forced to withdraw from her studies.
·     She wanted to stay in Australia for her future prosperity. Her parents asked her to return to China to pay the debt but she did not want to and she had a boyfriend.
·     She and her boyfriend wished to form a family and married [in] April 2015.
·     Her husband’s family does not recognize their marriage because her parents are not Christians. Eventually her parents changed and attend family church.
·     At the end of 2015, her parents told her that people from the local family church were arrested by the government for evangelizing and the family church was closed down. She and her husband were terrified.
·     She has heard that in recent years, family churches in Wenzhou have been closed down because of people evangelizing.
·     Her husband's [sister] is [an Occupation 1] and a Christian. In 2016, she and a colleague were interrogated by the police for attending evangelization conducted by overseas preachers. Her colleague was accused of possessing some preaching CDs from overseas and was detained for [number] days. This colleague lost her job.
·     Her husband's father ran a business in Xinjiang. He attended family church there, fundraised for them and supported evangelization. After her husband's sister's issue, her father-in-law was also interrogated by police. He was fined heavily and his business had to close.
·     In China, they will not be able to pursue their religious beliefs freely or safely and they will not be allowed to evangelize.
·     They have a son now and they are afraid that the religious persecution will affect his future so they have applied for protection.
The applicant provided additional documents in support of the application including the bio-data pages of her and the second applicant’s Chinese passports, their New South Wales marriage certificate, and the New South Wales birth certificate of the third applicant.
Interview with the delegate
On 25 July 2017, the applicant attended an interview with a delegate in the Department to discuss her claims for protection.
In the interview, and as set out in the delegate’s decision, the applicant provided detail about her written claims and provided the following additional information:
·     The parents of the applicant’s husband approve of their marriage because the applicant’s parents have converted to Christianity;
·     The applicant’s family and her husband’s family attend house church in China;
·     The applicant did not experience any harm or threats in China;
·     As a baptised Christian, it is their task to spread the gospel. The applicant needs to spread the gospel in China and she fears religious persecution because of this in China;
·     There is no pastor or priest at the church she attends in Australia; just different speakers and people who organise gatherings;
·     Her children are not baptised; she will let them grow up and they can decide if they want to be baptised;
·     The applicant and her husband were not married in a church because at the time, she had just become a Christian and was not very familiar with everyone in the church;
·     If she returns to China, she will spread the gospels to those who do not believe in God and she will attend home gatherings.
The applicant provided some photographs in support of her church attendance and baptism in Australia.
The delegate’s decision
The delegate considered that the applicant did not have an in-depth knowledge of Christianity. The delegate was concerned that a celebrant had married the applicant and her husband when they claimed to be devout Christians. The delegate noted that the applicant said that she would evangelise and attend house church gatherings if she returned to China. The delegate noted the applicant had spent from May 2014 to April 2016 unlawfully in Australia and her partner had remined in Australia unlawfully from September 2009 until they lodged their protection visa applications. The delegate was concerned that their actions demonstrated a disregard for Australia’s migration laws. The delegate found that the applicant’s substantial delay in applying for protection undermines her stated fear of harm in China and that she is not a genuine Christian convert and that she does not have a genuine intention to practice Christianity in China. The delegate found the applicants are not persons in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Application for review
On 8 September 2017, the applicants lodged applications for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions
At the hearing, the applicant provided some materials in support of her claim to be a practising Christian in Australia. These include:
·     Undated photographs of the applicant, her husband and children participating in church activities, such as singing, eating and children doing craft (some of the photographs are duplicates of those provided to the Department);
·     Religious brochures in Chinese and English about church talks, from the [Church 1];
·     [Church 1] magazine from June 2016;
·     Letter of support dated 5 March 2023 from [Church 1] in [Suburb 1], NSW, signed by [Mr A] (Public Officer) and [Mr B] (Secretary) stating that the applicants have been regularly attending church meetings since December 2014.
The hearing
The applicant appeared before the Tribunal on 7 March 2023 to give evidence and present arguments. The other applicants did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Nationality
The applicant and the second applicant provided copies of the bio-data pages of their People’s Republic of China passports to the Department. They also provided copies of the New South Wales birth certificates of the third and fourth applicants. Based on the information provided, the delegate was satisfied of the applicants’ identities and citizenship. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicants are using their own identities and that their receiving country for the purposes of assessing their claims for protection is the People’s Republic of China.
The Tribunal is also satisfied that each of the second, third and fourth applicants is a member of the family unit of the applicant as defined in Regulation 1.12 of the Migration Regulations 1994 (Cth) and each of them is therefore also a member of the same family unit as defined in s 5(1) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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). 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, 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: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are 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 they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Analysis, reasons and findings
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the Tribunal hearing, the applicant confirmed that all the applicants fear returning to China for the same reasons and that she was giving evidence to the Tribunal on behalf of herself and the other applicants.
The applicant gave evidence that she completed the protection visa application forms herself and she wrote the statement of claims herself and she got someone to translate it into English. She confirmed that all the information she had provided was true and correct.
In the Tribunal hearing, the Tribunal discussed with the applicant her personal background and that of her husband, their migration history, their families, education and employment, their religion and the reasons they fear returning to China. Overall, the Tribunal found the applicant to be a truthful witness but for the reasons explained below that does not mean the Tribunal necessarily accepts all the applicants’ claims.
Migration history
In the Tribunal hearing, the applicant gave evidence that she dropped out of her studies in Australia because she could not afford the fees and she then started work. The same thing happened to her husband. The applicant came to Australia because she wanted to study here and to stay here because she thinks it is a good country. She travelled back to China various times, but she didn’t return after her last Student visa finished because she wanted to stay in Australia. Her family wanted her to return to China to work and help repay their debts but the applicant didn’t want to do that and so she stayed in Australia. Her husband also stayed in Australia after his Student visa finished because he wanted to make some money. They both stayed unlawfully.
The applicant and her husband decided to apply for protection visas around the time their son was born. Earlier, the applicant hadn’t thought too much about it and did not know about applying for protection until a friend told her about it. After her son was born she started to think about it and wanted to stay here for her family. They joined the church in 2014 and got baptised in 2015. Because of their religious beliefs they started to think about applying for a protection visa to stay in Australia.
The applicant confirmed that neither she nor her husband suffered harm in China in the past and the Tribunal accepts this. The Tribunal finds that it was not until starting a family in Australia that the applicants thought about applying for protection visas due to their Christian religious beliefs which they had developed in Australia.
The applicants’ religious practice in Australia
The applicant gave evidence that she and her husband joined their church in 2014. It is called [Church 1] in [Suburb 1], Sydney and the denomination is “brethren”. They were introduced to the church by a friend.
The applicant gave evidence about her Christian faith. She explained that being a Christian means to her that she has a new life. She and her husband were non-believers when they started going to church but after going for a while they realised the grace of God and were baptised in 2015. Both the applicant and her husband became Christians at this time when they were baptised, but the applicant’s husband used to attend church with his parents when he was growing up in China because they were Christians. In Australia, the applicant and her husband go to church on Sunday and listen to hymns. Each month there are family gatherings. Her children go to Sunday school. They read the bible together at home and they invite non-believers, such as friends or co-workers of her husband, to church. There is an annual music gathering and they invite friends to attend that. The applicant referred to the photos she provided which show the family’s participation in church activities.

The Tribunal asked the applicant whether her children were baptised. She said they were too young. She said there is no specific age for them to be baptised and they can do it in the future if they want to. She said they are young and only know basic things about God and she believes that when they have developed further learning and knowledge they will choose to be Christians themselves.
The Tribunal asked the applicant whether she was an ordinary member of her church or whether she has a special role. She said that she does some jobs, cleaning duties, helps educate the children at Sunday school, helps with hymn singing and helps in the kitchen. Her husband basically does the same.
The Tribunal notes that the delegate, who made her decision in August 2017, did not accept that the applicant had genuinely converted to Christianity or that she had a genuine intention to practise Christianity if she returned to China. Given the applicant’s evidence about her and her family’s practice of Christianity in Australia since that time, the Tribunal is prepared to accept that the applicant and her husband are genuine Christians now. The Tribunal accepts that they are ordinary members of their church, which is a Protestant Christian church. The Tribunal accepts that that they attend church on a regular basis and participate in church community activities and they engage in private worship activities at home like reading the bible. The Tribunal accepts that the applicant’s children attend Sunday school to study the bible and sing hymns. The Tribunal finds that given the young age of the children, they attend these activities in accordance with the wishes and actions of their parents, rather than through independently held religious beliefs. The Tribunal accepts that the applicant and her husband are baptised but their children are not and that baptism is a choice the applicant will let her children make in the future. The Tribunal accepts that the applicant would like her children to choose to be Christians when they grow up. The Tribunal accepts that the applicant and her husband sometimes invite friends and others to attend church activities. The Tribunal finds that the applicant and her husband do not proselytise in public.
The applicants’ families in China
In the Tribunal hearing, the applicant gave evidence that in China she has her parents and a [sibling]. Her parents live in [Town 1], Fuqing city and are farmers. She is in weekly contact with them. Her [sibling] works in Xiamen in the [specified] industry. [Her sibling] is [married].
The applicant’s husband has his parents and sister in China. They live in the same town as the applicant’s parents. The applicant’s father-in-law used to run a business in Xinjiang province but he had to stop working in around 2015. He was approached by the police for a reason to do with religion, he had to pay a large fine and he could not continue to run his business. The applicant’s sister-in-law works as [an Occupation 1] and she is married. She takes care of her parents and sometimes the applicant and her husband send them money. The applicant and her husband are in weekly contact with her parents-in-law.
The applicant and her husband both lived with their respective parents before coming to Australia (they did not know each other) and their parents still live in the same places as they did at that time.
The applicant gave evidence that her parents used to be Buddhist and they converted to Christianity in late 2015. They started attending church in their town and now they go to house church gatherings in the town with the applicant’s parents-in-law. A few dozen people attend these gatherings. Sometimes they go to a Christian church building that has a cross and sometimes they attend family gatherings in friends’ houses. Her parents and parents-in-law host gatherings in their homes around once a month. When they go to church, they read the bible and pray.
The Tribunal asked the applicant whether her parents have had any problems since they began attending church. She said they have not. She explained that there are some people at the church who had problems in Wenzhou where family gatherings were not allowed. Those people left their hometown and came to the applicant’s village to preach.
The Tribunal asked the applicant whether her parents-in-law had experienced problems. She said they have not. She mentioned that a friend of her sister-in-law got arrested for possessing a CD with preaching content and her sister-in-law got fired from the [workplace] where she worked because she was living with this friend and the authorities knew the sister-in-law was a Christian. The Tribunal asked the applicant whether she had any evidence to support this and she said she did not, but it is true that her sister-in-law was fired for this reason. The applicant confirmed that her sister-in-law has not had any problems since this time. The Tribunal notes the applicant’s evidence that her sister-in-law is currently working as [an Occupation 1], which suggests she has found employment again.
The Tribunal asked the applicant about the claimed situation with her father-in-law. The applicant said that her father-in-law was approached by the police in Xinjiang relating to something to do with preaching. They asked him some questions and his business had to shut down and he went back to Fujian. The applicant confirmed that her father-in-law has not had any problems since moving back to Fujian but he was not able to continue his business.
The Tribunal put to the applicant that even if it accepts that these things happened in the past to her father-in-law and sister-in-law, it appears that her husband’s family have not had ongoing problems with the practice of their religion in Fujian. The Tribunal put to the applicant that this might lead it to find that the applicants would not face problems connected to those past issues if they returned to China. The applicant responded that they have to think about their children.
The Tribunal accepts that the applicant’s parents and her husband’s parents live in [Town 1], Fuqing city, Fujian province in China and are Christians. The Tribunal accepts that they attend house church gatherings on a regular basis in their town at a church building and also in people’s homes, including their own. The Tribunal finds that they are ordinary worshippers and their worship activities consist of attending these gatherings, reading the bible and praying. The Tribunal accepts the applicant’s evidence that her parents and parents-in-law have not experienced problems as Christians in Fujian.
The Tribunal is prepared to accept that the applicant’s father-in-law had an issue with the authorities in Xinjiang province but finds he has not had ongoing problems since returning to Fujian. The Tribunal is prepared to accept that the applicant’s sister-in-law was involved in an issue with a friend relating to a CD and lost her job as [an Occupation 1], but that she is working as [an Occupation 1] again and has not had further problems.
The Tribunal finds that the applicants would not be of interest to the authorities due to any past interest by the authorities in the applicant’s father-in-law and sister-in-law connected to their Christianity if they returned to China in the reasonably foreseeable future.
The applicants’ religious practice if they returned to China
The applicant gave evidence that if they returned to China, they would live in the house of her husband’s family, which is in [Town 1], Fuqing city, Fujian province.
The Tribunal asked her how they would practice their Christianity if they returned to China. She responded that they would do preaching, spreading the good news as Christians, and they would attend church. She said they would attend the church and family gatherings that their parents go to. The Tribunal asked the applicant to explain what she meant by “preaching,” and she said it is what happens at their church here (in Australia) every day, that is, they invite friends and non-believers to the church and have activities for them, every year that have a preacher at the church who delivers sermons to them and so it would enable more people to know about the Lord. The applicant said that if they returned to China, they would invite friends to attend activities like singing hymns at the family gatherings their parents attend and tell these friends about Jesus, because they have to spread the good news.
The Tribunal asked the applicant why she thinks this would be a problem for them if they returned to China. She responded that preaching is not allowed in China and she does not have much confidence in Chinese churches. The Chinese government is not in line with what the bible says and in China, they have to sing national songs and love the government instead of God. Later in the hearing, the applicant said she thinks they will be harmed by the government if they return to China because they will preach at church and also outside their church in China.
The Tribunal finds that if the applicants returned to China, they would return to live with the applicant’s husband’s parents in [Town 1], Fuqing city, Fujian province. The Tribunal accepts that they would attend house church gatherings at the same church and homes that the applicant’s parents and parents-in-law attend. The Tribunal finds that the children would accompany their parents to church activities given their young age, and that they would not attend religious activities independently of the actions or wishes or their parents. The Tribunal finds that the applicants would attend as ordinary members of the church, as they do in Australia, and not be leaders. Noting that the applicant and her husband have not lived in China for many years and the applicant has not attended church in China, the Tribunal is prepared to accept that as they get to know people in the area, in time they may invite people to attend their house church gatherings and tell them about Jesus. This is consistent with the applicant’s description of “preaching” above. The Tribunal accepts that they would undertake private worship activities at home such as reading the bible. The Tribunal finds that the applicants would not proselytise or preach in public in China, just as they do not in Australia. The Tribunal finds that the applicant would not force her children to be Christians as they grow up, or to be baptised, and that the family would take a moderate approach to their religious practice in China consistent with their practice in Australia.
Do the applicants meet the refugee criterion?
In her written statement, the applicant states that she fears returning to China because religious persecution will affect the future of their child, underground churches are risky, preaching gospels is dangerous and they wish to have religious freedom as Christians. In the interview with the delegate, the applicant said that she fears returning to China because she will not be able to pursue her Christian beliefs and spread the gospel.
In the Tribunal hearing, the applicant gave evidence that she and her family fear returning to China because in many regions in China, Christians and family gatherings are persecuted. Also, children under 18 are not allowed to have religious faith, school textbooks cannot refer to the bible and children cannot attend church. Her children can’t go to church and Sunday school in China and the Chinese government will investigate and arrest people attending family gatherings.
In essence, the Tribunal considers that the applicants’ claims to fear harm if they return to China in the reasonably foreseeable future, as expressed by the applicant, can be described as follows:
· they fear harm from the authorities for practising their Christianity in the underground church and they will be restricted in the way they can practise their religion;
· the applicant and her husband fear harm for their children because their children will not be allowed to attend church or Sunday school or learn about Christianity.
In the Tribunal hearing, the Tribunal discussed with the applicant country information from a range of sources about the situation for Christians in China and, more specifically, Protestant Christians in Fujian province, which is where the applicants are from and where the Tribunal has found they would return to live in China. The applicant did not provide written country information to the Tribunal about the situation in China in support of the family’s claims.
As discussed with the applicant, country information including the DFAT Country Information Report: People’s Republic of China[1], the United States Department of State Report on International Religious Freedom: China[2] and research from the Canadian Immigration Review Board[3] (Canadian IRB) indicates that there are at least 70 million Christians in China and these days, more Protestants worship in unofficial house churches (also known as underground churches) rather than in Three-Self Patriotic Movement (TSPM) churches (officially registered churches). The Chinese government under President Xi has been trying to make the way religion is practiced more compatible with the values of the Chinese Communist Party (CCP) or ‘Sinicised’ and there have been restrictions placed on the way religion is observed, but the country information is also clear that the situation varies considerably from place to place.[4] An individual’s ability to practice their religion depends on where they do it and how they do it, and whether their activities might be considered by the authorities to be linked to other political, ethnic or security issues. Country information also indicates that leaders of churches are more likely to have problems with the authorities than ordinary worshippers.
[1] 22 December 2021 (DFAT Report)
[2] (accessed 7 January 2023) (US DoS Report). The Tribunal notes that the 2022 US DoS Report has been released since the hearing and the information it contains that is relevant to the applicants has not changed from the 2021 report: (accessed 23 June 2023)
[3] China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020-April 2022), Research Directorate, Immigration and Refugee Board of Canada, 10 May 2022, CHN200992.E; China, Treatment of members of house churches [also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches], including Protestant, Catholic and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019-October 2021), Research Directorate, Immigration and Refugee Board of Canada, 18 October 2021, CHN200760.E. See (accessed 7 January 2023).
[4] See, eg, US DoS Report
As discussed with the applicant, country information indicates that the situation for Christians practising religion in Fujian is generally more liberal than in many other parts of China.[5] While the country information indicates that religious control has tightened in recent years as it has all over the country, in Fujian it is coming from a more relaxed starting point. Country information indicates that although the restrictions being imposed by the CCP on religion are intensifying, Fujian province tends to see a more liberal approach to religious regulation than many other places provided people do not challenge the interests or authority of the CCP.[6] The situation for most Christians has not really changed and the risk of them experiencing treatment that amounts to persecution due to their religion is very low.[7]
[5] See, eg, China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020-April 2022), Research Directorate, Immigration and Refugee Board of Canada, 10 May 2022, CHN200992.E; DFAT Report 3.33 – 3.34.
[6] See footnote 3 above.
[7] In addition to the country information referred to above, see also UK Home Office Country Policy and Information Note China: Christians, November 2019.
According to the Canadian IRB, most Protestants worship in unofficial ‘house’ churches, which are not officially recognised but are able to operate so long as they are careful and keep a low profile. Many people begin in Three-Self churches and then leave for house churches because they prefer the atmosphere. Smaller house churches are likely to be able to operate without interference from the authorities. It is larger churches with larger congregations that are most likely to receive government attention.[8]
[8] DFAT Report 3.33.
The Tribunal put to the applicant that the country information seemed to reflect or be consistent with the evidence she had given in the hearing about the situation for her parents and parents-in-law as Christians in Fujian. The applicant responded that she thinks the Chinese government would allow churches in China but what they do and believe is different from in Australia.
The Tribunal also discussed country information with the applicant, including from the sources referred to above, about the particular situation for children practising religion in China. The Regulations on Religious Affairs (Regulations) introduced in China in 2018 place heavy restrictions on religious education and practice. While these Regulations do not appear to explicitly ban minors from religious activities, they are regarded by sources such as the US DoS Report as the basis for prohibitions on participation in religious activities and receiving religious education for people under 18 which are implemented by either the state-sanctioned religious associations (such as the Three-Self Patriotic Movement in terms of Protestant Christians) and/or local government bureaus.[9]
[9] See, eg, US DoS Report.
Country information indicates that implementation and enforcement of these Regulations varies widely from place to place and according to the US DoS Report, each provincial administration is allowed to issue its own regulations concerning religious affairs, including penalties for violations.[10] This is supported by a November 2021 report from a German-based Catholic non-government organisation China Zentrum,[11] which states:
As far as is known, there is no legal basis in national legal norms for the increasing local bans on minors entering religious sites and attending religious courses. The national Regulations on Religious Affairs do not contain any provisions on minors. In the meantime, however, provisions have been included in the local Regulations on Religious Affairs of five provinces, most recently in Yunnan Province.
[10] See footnote 3 above; DFAT Report 3.26; US DoS Report.
[11] (accessed 23 June 2023)
The report cites Article 35 of the Regulations on Religious Affairs for Yunnan Province which purportedly states, ‘No organization and no individual may organize, induce or force minors to take part in religious activities,’ and notes that similar wording is found in regulations in the provinces of Qinghai (2021), Shanxi (2020), Hubei (2019) and Guizou (2019). The report also observes that this means for the first time (with the exception of Xinjiang province) in legal norms on the provincial level there are provisions that explicitly restrict the religious education of minors and give the authorities the opportunity to take action against the participation of children and young people in community religious life. This report does not indicate that the same approach has been taken in Fujian by the official TSPM church or local provincial authorities.

In relation to Fujian, an article on the World Watch Monitor website dated 8 September 2017[12] refers to the TSPM there being told to report any activity (presumably involving children, based on the context of the article) held in registered religious venues or requests for permission to hold events in unregistered venues. Apparently, churches in Fuzhou[13] were told that “it is forbidden to force or tempt juveniles to believe in any religion”. The Tribunal has not seen further independent reference to this decree in other sources, including those referred to above, or reference to similar decrees made in other cities in Fujian. The same article notes that almost all churches in China have a Sunday school and the authorities generally turn a blind eye to this. Based on research by the Department of Home Affairs Country of Origin Information Services Section, the Tribunal is aware of a small number of reports in Christian publications since 2018 about churches or kindergartens attached to churches in Fujian being investigated or demolished by authorities, a report of a house church preacher who was home-schooling his children being issued with a court summons and a report of children being banned from attending a Christian camp.[14] The ChinaAid Annual Persecution Report 2022[15] does not refer to any “religious persecution” incidents in Fujian involving Christian children during the reporting period. It mentions one incident of a church being banned in a district of Fujian which is not where the applicants are from. The 2021 China Aid Report refers to a church school in a fishing village in Lianjiang county, Fujian province, of being accused of being a “cult” and being raided by police. The report refers to the school equipment being seized, an order for the building to be demolished and 20 teachers and students being interrogated overnight. It also refers to a church being banned from meeting in a particular place in Xiamen city, Fujian (but not the reasons why). The 2020 China Aid Report mentions a small number of incidents in Xiamen city, Fujian. In relation to children, it refers to a raid on a gathering of a group of mothers and children from the Xunsiding Church, which it describes as a “popular and influential house church” in Xiamen city. According to the Report, they had met to share parenting experiences.
[12] (accessed 23 June 2023)
[13] The capital city of Fujian province.
[14] (accessed 7 January 2023); (accessed 7 January 2023); (accessed 7 January 2023); (accessed 7 January 2023)
[15] (accessed 25 June 2023)
Estimates of the numbers of Christians in China do not distinguish between adults and children, however, given the country information above and the actions of the CCP to try to restrict the involvement of minors in religious activities, it is reasonable to infer that many children are involved in religious activities in China, including attending church, Sunday school and other religious activities such as summer camps. In the Tribunal’s view, the very small number of reports of the authorities in Fujian taking action in relation to children is consistent with the country information discussed above about the (generally) more lenient attitude of the authorities in Fujian to the practice of religion compared to some other parts of China. The Tribunal acknowledges there have been incidents, such as in Xiamen city, and acknowledges the decree to churches in Fuzhou city, however based on the evidence before the Tribunal, it is not aware of specific steps having been taken by the authorities in the area where it has found the applicants would return to live ([Town 1], Fuqing city) in respect of the involvement of children in religious activities. The country information consulted by the Tribunal (referred to above) does not refer to the authorities in Fujian attempting to interfere with ordinary people, including children, engaging in personal private worship activities at home. The applicant commented that although the authorities don’t harm children, she believes they (the applicants) could not achieve genuine freedom of religious belief.
The Tribunal notes that the DFAT Report, in a paragraph that deals with China generally and not Fujian specifically, states at [3.35] that:
DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.
As set out above, the Tribunal has found that if the applicants returned to China, they would return to live in [Town 1], Fuqing city, Fujian province. The Tribunal has found that they would attend house church gatherings at the same church and homes that the applicant’s parents and parents-in-law attend, and that the children would attend at the behest of their parents rather than independently. The Tribunal finds that the applicant’s children would not be prevented from attending house church gatherings under the Regulations, as the Regulations apply to TSPM churches. The Tribunal finds the children would not be prevented from participating in religious activities due to decrees made by local government bureaus in their area as the evidence does not indicate that such decrees have been made. The Tribunal has found that the family would attend religious gatherings as ordinary members and not as leaders. The Tribunal accepts that in time, the parents may invite people to attend their house church gatherings and tell them about Jesus. The Tribunal accepts that they would undertake private worship activities at home such as reading the bible. The Tribunal has found that the applicants would not proselytise or preach in public in China. The Tribunal has found that while the applicant would like her children to grow up as Christians she would allow them to make the choice, including about baptism. The Tribunal has considered whether its findings about these worship activities described above, including taking the applicant and her husband taking their children to house church gatherings in [Town 1], would increase the risk of the applicants coming to the adverse attention of the authorities. Having considered all the evidence before it, based on the Tribunal’s findings and the country information discussed above, the Tribunal finds that any increased risk of adverse attention associated with taking the children to religious activities in [Town 1] would not rise to the level of a real chance. Therefore, based on the Tribunal’s findings above, it finds that if the applicants returned to China in the reasonably foreseeable future they would not face a real chance of serious harm arising from their religious beliefs and practices as Christians.
The Tribunal has considered the applicant’s comment that what the Chinese churches do and believe is different from in Australia and she does not have much confidence in them. In the Tribunal’s view, the applicant’s comments and concerns relate to the nature of worship in TSPM churches or ‘official’ churches where country information indicates that the CCP exerts its authority over their worship practices and content as part of the “Sinicisation” of religion in China. As noted above, most Protestants worship in unofficial ‘house’ churches, which are not officially recognised and can conduct their worship services as they wish. Country information states that many people begin in Three-Self churches and then leave for house churches because they prefer the atmosphere. As noted above, the Tribunal has found that the applicants would attend house church services. Even if the Tribunal accepts the applicant’s comment as a claim, the Tribunal finds that this situation is not relevant to the applicants as they would not attend a TSPM church and therefore does not accept it.
The Tribunal has considered the applicant’s claim that her children will not be allowed to attend church or Sunday school or learn about Christianity. Based on the country information and the Tribunal’s findings above, the Tribunal does not accept that the applicant’s children would not be allowed to attend a house church or that they would not be allowed or able to learn about Christianity if they returned to China in the reasonably foreseeable future. The applicant referred to school textbooks not being allowed to contain religious content. Country information referred to above indicates that this is correct, particularly since the Regulations were introduced, however, the Tribunal does not consider this would amount to harm, or serious harm, in the case of the applicant’s children. Related to this, the Tribunal notes that the applicant did not claim that she wanted her children to attend a religious school in China. Therefore, the Tribunal finds that if the applicants returned to China in the reasonably foreseeable future they would not face a real chance of serious harm arising from these circumstances.
In terms of whether the applicant’s children would be allowed to attend Sunday school in China, the Tribunal does not have evidence before it about whether the house church gatherings the applicants would attend in [Town 1] have a Sunday school attached to them. The Tribunal notes the World Watch Monitor article referred to above says that almost all churches in China have a Sunday school and the authorities generally turn a blind eye to this. The Tribunal also notes the applicant’s evidence that the house church gatherings her parents and parents-in-law attend have not faced problems from the authorities, which would suggest that if there is a Sunday school attached to those gatherings it has not attracted the adverse interest of the authorities. The Tribunal acknowledges that its consideration of this matter is rather speculative given the lack of evidence, however, based on the limited evidence before it, it finds that the applicant’s children would be able to attend Sunday school if one exists as part of the house church gatherings and that if they did so, they would not face a real chance of serious harm. For completeness, the Tribunal notes that in the event the applicant’s children were not allowed to attend Sunday school for some reason, or there was not a Sunday school available, the Tribunal does not consider that this would amount to harm, or serious or significant harm.
The Tribunal has considered the applicant’s more general claim that they will be restricted in the way they can practise their religion and not have freedom of belief. The Tribunal has considered above the examples of ‘restrictions’ referred to by the applicant in terms of the practice of their Christianity if they returned to China in the reasonably foreseeable future and for the reasons explained, does not accept them as giving rise to a real chance of serious harm. The Tribunal acknowledges country information like the DFAT Report which states that “Protestant Christians … are unable to practise their faith freely”, however, in the particular case of the applicants it has found that they would be able to worship in their village in Fujian and they would not face a real chance of serious harm as a result. They would be able to attend house church gatherings with their relatives who have apparently attended regularly and openly (as opposed to in secret) for years without problems. They would be able to invite friends to join the worship services. The Tribunal has found they would not publicly proselytise. The applicant has not claimed that she or her husband wish to involve themselves in politics and speak up against the authorities and the evidence before the Tribunal does not suggest they would do so. The Tribunal has found that the children would be able to attend Sunday school if it is available. The Tribunal has found that they would be able to undertake private worship activities at home and continue learning about Christianity. The applicant has not referred to any other ways in which their ability to practice their religion or hold beliefs in the way they wish to would be restricted. The Tribunal notes the applicant’s evidence that she would allow her children to choose whether to be Christians as they get older and whether to be baptised. Therefore, the Tribunal does not accept the applicant’s claim that she and the other applicants will be restricted in the way they can practise their religion in China. Accordingly, the Tribunal finds that if the applicants returned to China in the reasonably foreseeable future, they would not face real chance of serious harm arising from these circumstances.
The Tribunal has considered whether the applicants’ attendance at the [Church 1] church in Sydney and involvement in church community activities would result in them facing harm from the Chinese authorities if they returned to China in the reasonably foreseeable future, even though the applicants did not make such a claim. Country information from the DFAT Report does not indicate that attending a mainstream Protestant church in Australia would put a person at risk of serious harm on their return to China. Based on the evidence before it, there is nothing to indicate that the [Church 1] is connected to any religious movements that are illegal in China or that this type of church is regarded as a “cult”.[16] Accordingly, the Tribunal finds that the applicants would not face a real chance of serious harm arising from these circumstances if they returned to China in the reasonably foreseeable.
[16] DFAT Report 3.53 – 3.78.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to China now or in the foreseeable future that they face a real chance of serious harm for reasons for their religion or any other reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, it is not satisfied that the applicants meets the definition of refugee in s 5H(1). As the applicants do not meet the definition in s 5H(1), the Tribunal is not satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Do the applicants meet the complementary protection criterion?
As the Tribunal has found that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicants meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[17] for the same reasons as those set out above, the Tribunal finds that the applicants do not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
[17] MIAC v SZQRB [2013] FCAFC 33
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rachel Da Costa
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.
…

[2023] AATA 2582

27 June 2023

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