1726389 (Refugee)

[2023] AATA 3601

1726389 (Refugee) [2023] AATA 3601 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Harry Huang (MARN 9579277)

CASE NUMBER:  1726389

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Papadopoulos

DATE:11 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 11 August 2023 at 5:22pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Yiguandao – introduction, initiation and  activities in Australia – three return trips, one taking publications – friend jailed and applicant’s name on watchlist – credibility – knowledge, activities and supporting evidence consistent with low-level member – inconsistent and unreliable evidence and no corroboration of activities during return visits – implausible and speculative claims of harm to friends – country information – origins, beliefs, rituals and practices – previously proscribed, now not on official lists of cults – tacit approval of private practice and possible future legalisation – localised and variable legal action against leaders – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [Age]-year-old male who claims to be a national of China.

2. The applicant was [Age] years old when he first arrived in Australia [in] April 2006 as the holder of a Subclass 571 Schools Sector (Class TU) visa (Subclass 571 visa).  On 20 June 2006, he was granted his second Subclass 571 visa. On 26 March 2009, he was granted a Subclass 572 Vocational Education and Training Sector (Class TU) visa (Subclass 572 visa).  On 19 May 2011, he was granted his second Subclass 572 visa.  On 3 July 2013, he was granted his third Subclass 572 visa.  On 16 September 2014, he was granted a Subclass 573 Higher Education Sector (Class TU) visa (Subclass 573 visa) which ceased on 30 September 2016.

3. Since first arriving in Australia [in] April 2006, the applicant has travelled back to China on three occasions having departed Australia [in]:

   ·     [January] 2011, when he was [Age] years old, and returned [in] February 2011;

   ·     [September] 2012, when he was [Age] years old, and returned [in] October 2012;

   ·     [November] 2015, when he was [Age] years old, and returning [in] December 2015.

4. On 6 June 2016, he applied for a Subclass 866 Protection (Class XA) visa (protection visa). 

5. On 13 October 2017, a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.

6. This is an application for review of the delegate’s decision.

7. The applicant attended a Tribunal hearing on 30 May 2023.

8. The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.  A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

   Claims and evidence provided to the Department

   Protection visa application

10. Based upon information in the protection visa application form that was completed by the applicant on 6 June 2016, the applicant:

    ·     is a [Age]-year-old Chinese national who was born in Jilin Province in China.

    ·     was born to Chinese nationals, [Mr A] and [Ms B]. His father is deceased and his mother lives in Australia.

    ·     resided in China at only one address – [Address], Luyuan District, Changchun City, Jilin Province.

    ·     undertook primary and middle school studies in Jilin Province, China between [Year] and April 2006.

    ·     undertook the following studies in Australia:

    o   English language and secondary school studies at [Provider 1] between May 2006 and December 2008;

    o   Certificate III in [Subject 1] and an Advanced Diploma of [Subject 1] at [Provider 2] between February 2009 and December 2010;

    o   Certificate III in [Subject 2], Certificate IV in [Subject 2], and Diploma of [Subject 3] at [Provider 3] between February 2011 and March 2013; and

    o   Diploma of [Subject 4] at [Provider 4] between July 2013 and June 2014.

    ·     was undertaking studies at [Provider 5] towards the completion of a Bachelor of [Subject 2] (which he commenced in July 2014).

    ·     can speak, read and write in both the Mandarin and English languages.

    ·     is an ethnic Han.

    ·     described his religion as Yiguandao (also known as I-Kuan-Tao, Yi Guan Dao, Yi Guandao). 

11. In relation to his claims for protection, the applicant provided the following information in a statutory declaration dated 6 June 2016 which accompanied his protection visa application form:

    Initiation

    ·     On 15 March 2009, he was initiated at a Yiguandao temple in Australia. He has remained a faithful member of Yiguandao since this date.

    First return trip to China

    ·     [In] January 2011, he returned to China spending about a month there. During this trip, he met his best friend [Mr C].  [Mr C] was a [student] at [University] because he was seeking to understand ‘why his grandfather and father had subjected to persecution due to Yiguan Dao’.   [Mr C]’s grandfather was a Yiguandao master who had been arrested and died in jail when the Communists came into power in China.  [Mr C]’s father had been caught up in [Mr C]’s grandfather’s matter and as a result, lost his job as a teacher at [University] and was forced to work as a cleaner. [Mr C]’s father did not marry until he was 50 years old.  He met [Mr C] almost every day during this trip to China during which time they exchanged their ‘understandings’ of Yiguandao and he told [Mr C] about his involvement in Yiguandao in Australia.  

    Second return trip to China

    ·     [In] September 2012, he returned to China a second time, and again stayed for about one month.  Before his return, he learnt that [Mr C] had secretly organised a group to study Yiguandao.  [Mr C] asked him to bring ‘overseas publications of Yiguandao to him’ in China.  The Yiguandao study group met secretly at a café run by [Mr C]’s girlfriend, [Ms D].  While in China, he attended all of the secret meetings organised by [Mr C] where he spoke to the group about his practice of Yiguandao in Australia.

    Events in China once after he returned to Australia on 8 October 2012

    ·     He remained in touch with [Mr C] following this second return trip. He learnt that [Mr C] had established contact in 2013 with an enlightened Yiguandao master from [Country] through his father’s social contacts.  This master initiated most of the study group members to become ‘formal members of Yiguandao’.  [Mr C]’s father died of an illness in 2014.

    Third return trip to China

    ·     On 17 November 2015, he returned to China for a third time, and again stayed for about a month.  He lived at [Mr C]’s home during this trip.  [Mr C] and [Ms D] had expanded their Yiguandao meetings and were now hosting them at home as well as at [Ms D]’s café.  In total, more than 70 people would attend meetings organised by [Mr C] but in order to avoid attention from the Public Security Bureau (PSB) they attended in 6 separate groups. He brought overseas publications about Yiguandao with him to China.  He attended all of [Mr C]’s meetings during this trip and introduced other believers to his practices of Yiguandao in Australia.

    Events in China once after he returned to Australia on 11 December 2015

    ·     He continued to remain in contact with [Mr C] following this third return trip. On 7 May 2016, he heard from [Ms D] that the PSB had raided her home, arresting [Mr C] and other Yiguandao members who were practicing there at the time. [Ms D] also explained that her café had also been raided but that she was not present at the time. He told [Ms D] to go into hiding but she insisted on remaining in Changchun so she could try rescue her husband and the other Yiguandao members.

    ·     He then contacted a reliable friend, [Ms E], who worked for [Employer] in Changchun. She had ‘social contacts with the PSB, the court and the procuratorates’ and he thought she might be able to rescue [Mr C] and the other arrested Yiguandao members.   [Ms E] told him that:

    ·the authorities had been watching [Mr C] for several months and even had plain-clothed police infiltrate [Mr C]’s groups;

    ·she had found his name on a PSB blacklist as a ‘dangerous person’;

    ·he should never return to China.

    ·     [Ms D] also ‘learned from her friend’ who had some PSB contacts that [Mr C] was regarded as a leader of ‘illegal groups’ and there was no chance that he could be rescued.

    ·     The last time he spoke with [Ms D] she told him that:

    ·the police were looking everywhere for her and that she was preparing to leave China for [Country 2] for ‘the time being’;

    ·some of the people arrested had confessed under torture and had provided his name to authorities and therefore he was now ‘on the blacklist of the PSB’ and would be arrested by police if he returned to China.

    The applicant’s fear

    ·     The applicant fears that if he returns to China, he will be arrested by police, sent to jail, suffer inhumane torture and eventually be persecuted to death like [Mr C]’s grandfather.

    Supporting documents

12. The following documents provided to the Department in support of the protection visa application:

    ·     A copy of a Chinese passport ([reference]) issued to the applicant [in] 2006 and which expired [in] 2011.

    ·     A copy of a Chinese passport ([reference]) issued to the applicant [in] 2010 and which expired [in] 2020.

    ·     Department form 956, ‘Advice by a migration agent/exempt person of providing immigration assistance’, specifying that migration agent Harry Huang (MARN 9579277) provided assistance to the applicant with the application process, dated 6 June 2016.

    ·     Department form 866B, ‘Persons included in this application and family composition’, dated 6 June 2016.

    ·     Department form 866C, ‘Personal details for each person included in this application’, dated 6 June 2016.

    ·     A statutory declaration made by the applicant on 6 June 2016 specifying that his migration agent had explained to him relevant legislative and legal procedures relating to his application and had read and explained the contents of his protection visa application including the applications accompanying documents.

    ·     A statutory declaration made by the applicant on 6 June 2016 specifying his claims for protection.

    ·     The applicant’s Yiguandao Initiation card and a translation.

    ·     Photographs of the applicant:

    o   with others at a private home Yiguandao temple in China;

    o   giving lectures to Yiguandao believers in Australia;

    o   attending services at a public Yiguandao temple in Australia.

    o   with Yiguandao believers in Australia.

    Protection visa application interview

13. On 28 June 2017, the applicant attended an interview with the Department in connection with his protection visa application. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages.

14. The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below.  However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the protection visa application interview:

    ·     His father was not religious and died in China [in] March 2003. He has uncles and aunts in China, most of whom live in Jilin Province. 

    ·     His mother is in Australia and also believes in Yiguandao.  She lives with another person from the temple but did not know her address.  He understood that she does not have a visa and that she had applied for protection through a migration agent ‘on the basis of Falun Gong in 2006 or 2007’ but had been refused. His mother was ‘tricked’ by a migration agent.  He has two cousins living in Australia, who are Australian citizens, but he does not see them often.

    ·     When he returned to China in 2011 and 2012, he stayed with his grandmother, who has since died.  During his visit to China in 2015, he initially stayed with his relatives because he had to meet with them and then stayed with his friend [Mr C].

    ·     He explained that Yiguandao is banned in China because the Chinese authorities believe it to be a cult and anti-government. 

    ·     When he returned to China in 2012 and 2015, he took with him more than 10 publications from his Australian temple in his carry on luggage. He said the publications were not heavy and that in order to disguise the publications, he wrapped them in plain white paper cover and hid them beneath two novels in his carry-on luggage.

    ·     [Ms D] told him that is name was on a blacklist.  She knew this because her friend had told her.  This friend had a husband who was both [an Occupation] and a police officer at the police station.  He found and read the files of the arrested Yiguandao believers.  In those files, it was written that these believers had been tortured and had revealed the applicant’s name to the authorities.

    ·     [Ms D] also told him in July 2015 that [Mr C] had been sentenced to five years in prison. The applicant said that Chinese authorities do not hold the trials in public and do not release sentencing details.

    Summary of the delegate’s decision

15. The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:

    ·     The delegate accepted the applicant’s identity as claimed and that he has attended a Yiguandao temple in Sydney.

    ·     The delegate did not accept the applicant has practised Yiguandao since 2009, that his practice of the faith is as strong as the he claimed, that he took Yiguandao publications to China or that he covered the publications in plain white covers in order to conceal them.

    ·     The delegate found that the applicant would not be of adverse interest to Chinese authorities or that the applicant discovered from a policeman and a friend that his name was on a blacklist. The delegate found there was no evidence to suggest the applicant has any profile which would make him of interest to Chinese authorities.

    ·     Ultimately, the delegate was not satisfied there was a real chance that if the applicant returned to China he would be persecuted for a refugee reason. The delegate was also not satisfied that as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk he would suffer significant or serious harm.  

    Claims and evidence provided to the Tribunal

    The review application

16. On 30 October 2017, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

    Pre-hearing submissions and evidence

17. On 1 March 2023, the applicant’s representative provided the Tribunal with the following additional documentary evidence:

    ·     Letters of support (original in Chinese with translations) from:

    o   [Ms F], Yiguandao lecturer, dated 6 February 2023;

    o   [G] Lin, Yiguandao lecturer, dated 1 March 2023;

    o   [H], Yiguandao lecturer, dated 11 February 2023;

    o   [I], Yiguandao lecturer, dated 15 February 2023;

    o   [J], Master of Yi Guan Dao at home temple, dated 29 December 2022;

    o   [K], Master of Yi Guan Dao at home temple, dated 13 February 2023.

    ·     Photographs of the applicant:

    o   at the [Temple of Yiguandao], at [Address, Suburb 1];

    o   giving lectures at the [Temple of Yiguandao];

    o   making a video / audio programme at the [Temple of Yiguandao];

    o   studying at the [Temple of Yiguandao];

    o   at his home temple of Yiguandao in Australia;

    o   engaged in other Yiguandao-related activities in Australia.

    ·     Photographs of services at the [Temple of Yiguandao].

18. The applicant’s representative further requested the Tribunal take evidence from [Ms F], a Yiguandao lecturer, at the Tribunal hearing.

    The hearing: supporting documents and oral evidence

19. The applicant appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The Tribunal also took oral evidence from a witness, namely [Ms F] Chen, during the hearing.  The representative also attended the hearing.  Where relevant, the oral evidence of the applicant and the witness is discussed in the Tribunal’s findings and reasons below. 

20. The applicant brought to the hearing a number of Yiguandao books from his temple.  He told the Tribunal that he did this because the delegate did not believe that he was a Yiguandao follower.  The Tribunal observed that the books were not in English.

21. The applicant also brought to the hearing his Chinese passport issued [in] 2006 which expired [in] 2011.  The Tribunal made a photocopy of the biodata page of this document and then returned the document to the applicant during the hearing. He did not bring his most recent passport to the hearing because he could not find it. 

    Post-hearing submissions and evidence

22. The applicant did not provide the Tribunal with any post-hearing submissions or evidence.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality: Country of reference/receiving country

23. The applicant claims to be a citizen of China and provided to the Department a copy of two of his Chinese passports issued on [in 2006 and  2009]. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal accepts that China is his receiving country for the purpose of assessing his claims for protection.

    Credibility

24. Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[1]  There are special considerations in relation to asylum seekers. The Full Federal Court noted 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.

    [1] Fox v Percy (2003) 214 CLR 118

25. As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[2]  As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [2] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

1. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

2. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[3]   A similar approach is taken in the Department’s Refugee Law Guidelines[4]  and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[5] which provides useful guidance for this Tribunal.

   [3] SZLVZ v MIAC [2008] FCA 1816 at [25]

   [4] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)

   [5] UNHCR Handbook, re-issued February 2019 at [203]–[204]

3. In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[6] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[7] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8]

   [6] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

   [8] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

4. The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[9] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[10] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

   [9] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)

   [10] Ibid

5. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]

   [11] MIMA v Rajalingam (1999) 93 FCR 220

   [12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

6. The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[14]

   [13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169–170

   [14] Sun v MIBP [2016] FCAFC 52 at [69]

7. In the present case, the Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence. The Tribunal has also taken into account the applicant’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.

8. The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.

   Independent information

9. The Tribunal has had regard to a range of country information, including the most recently issued Department of Foreign Affairs and Trade Country Information Report on the People’s Republic of China that was issued on 22 December 2021 (DFAT Report).  The DFAT Report provides the following general information about the nature and origins of Yiguandao, its practice in China and the nature of persecution faced by its followers in China:

   3.75 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.

   3.76 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, the range of communities and propensity to split means that different adherents might have different beliefs.

   3.77 While YGD continues to be prohibited in China, it is not included on the list of active cults released in 2017. 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.

   3.78 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.

   Origins, beliefs, rituals and practices

10. Yiguandao is a Chinese syncretic religion.  First established in its modern form in the 1930s, it has deep roots in Chinese popular belief systems. Since the 1950s, it has been the subject of varying degrees of suppression within mainland China.  Primarily due to a crackdown in China in 1950, Yiguandao spread to Taiwan, and other parts of Asia, where it continues today. 

11. Renowned academic Edward Irons, who specialises in Yiguandao and other Chinese new religions, maintains that Yiguandao is an established religion in Taiwan and many Asian countries where its leaders have become concerned with a host of issues that were less important during the missionary stage of development.  For instance, the transmission masters find their roles focus increasingly on pastoral care rather than a sole preoccupation with proselytisation. In Europe, North America, Australia, Africa, and mainland China, Yiguandao has been described as an ‘immigrant or missionary religious group’ where many Yiguandao temples ‘struggle to adjust their traditional self-image and focus to keep up with rapid societal changes’.[15]

    [15] Irons, E., ‘Yiguandao’, World Religions and Spirituality Project

12. Roughly translated, Yiguandao means ‘unity way’ or ‘the way of pervading unity’.  Yiguandao claims it unites ‘the world’s five great religions’: Buddhism, Taoism, Confucianism, Islam, and Christianity. Scriptures from all these religions are believed to be sacred texts, but the current followers of the five religions are believed to be misguided.[16]

    [16] Bosco, J., ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY Ch.16 p.424

13. The US-based Dui Hai Foundation reports that Yiguandao groups in mainland China are likely to be concentrated in Guangdong and Fujian, where there are higher numbers of practising Taiwanese followers.[17]  Due to its relatively secret operation within modern China than elsewhere in the world, there is limited information on its beliefs and practices. Also, due to the variety of traditions and the lack of any central authority ruling on religious matters, local temples and their committees can innovate and reinterpret rituals and beliefs. As a result, a variety of beliefs and rituals may coexist within one area. As Philip Clart states:

    the sect split up into a number of separate branches (usually said to be eighteen) that continued to develop more or less independently. There thus exists today no independent leadership for the sect, which has become a family of closely related yet autonomous branch associations.[18]

    [17] ‘Yi Guandao DFAT cable IC69305L’, Department of Foreign Affairs and Trade, 18 February 2019, 20190301085228

    [18] Clart, P., ‘Way of Former Heaven (Hsien-Tien Tao) sects’, Overview of World Religions, PHILTAR (Division of Religion and Philosophy, University of Cumbria) (undated)

14. According to academic Joseph Bosco, much of Yiguandao belief and ritual is borrowed from popular religion and Yiguandao members worship all gods; this syncretism is typical of Chinese religion.[19]  He notes Yiguandao differs from popular religion primarily in its focus on the Maitreya Buddha and in its belief of an all-encompassing spirit known as Laomuniang, the Venerable Heavenly Mother who Yiguandao believers worship. In common with many earlier Chinese sectarians, ‘the Unity Sect sees human history as intimately involved with salvation by a series of Buddhas …most recently the Maitreya Buddha. The Buddhas were commissioned by the Venerable Mother to bear tidings of salvation to floundering humanity’.[20]

    [19] Bosco, J., ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY Ch.16 p.433

    [20] Jordan, D.K. & Overmayer, D.L., ‘The Flying Phoenix: Aspects of Chinese Sectarianism in Taiwan’ Princeton University Press (1986) p. 214

15. Rituals and practices of Yiguandao include:

    ·     Temples – Temples are located on the top floors of private homes and believers are organised in temple cells of eight to ten core followers per temple. Temples are organised in districts under the loose leadership of a master. The master presides over initiation ceremonies and guides the activities of the district faithful. He is treated with great respect. Due to the Yiguandao being organised as a secret sect, its members in China seek converts discretely.[21]

    [21] Bosco, J., ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY Ch.16 p.425

    ·     Ceremonies – Ceremonies are only open to initiated members. Initiation involves new members being taught the ‘Three Treasures’ which is the core secret of the sect. The Three Treasures are a mantra, a hand position and the symbolic opening of a door in the body so the soul may depart from the proper exit and not from one of the body's other orifices.[22] There are also five rituals common to Yiguandao gatherings:

    [22] Ibid., pp.424-425

    1. The Ritual of Saluting and Taking Leave of the Honourable Presence

    2. The Ritual for Presenting Incense

    3. The Ritual for Presenting Offerings

    4. The Ritual for inviting Spirits to the Altar

    5. The Ritual for Transmission of the Way / The Rite of receiving the Way Prayer.[23]

    ·     Kowtows – Religious activities include morning and evening prayer sessions but only the most devout carry them out daily. Believers are expected to attend at least on the full and new moon. Yiguandao praying involves very rapid kowtowing in a kneeled position while a cantor on the right announces the names of gods and a cantor on the left counts out the kowtows.[24]

    ·     Spirt writing – An ancient practice that is not unique to Yiguandao, it consists of communicating with the spirits and saints of buddhas and letting them convey their instructions or messages to the living.  Renowned Yiguandao researcher and academic Sebastien Billoud explains the performance of this practice:

    It is performed by three persons (san cai 三才), nowadays generally young women, who are especially selected and trained. One of them (called tiancai 天才) uses a wooden planchette thanks to which she writes characters in the sand. The characters are supposed to be dictated by “saints and buddhas” and the tiancai basically only channels their messages through her body. Her personality is supposed to be put aside during the session and her action (that is, the concrete activity of writing in the sand) is seemingly totally devoid of any intentionality and willpower. The second girl (dicai 地才) reads loudly what the first writes quickly in the sand whereas the third one (rencai 人才) records the character on a paper (or, sometimes now, in a computer).[25]

    [23] Jordan, David K. & Overmayer, Daniel, L., 1986 ‘The Flying Phoenix: Aspects of Chinese Sectarianism in Taiwan’ Princeton University Press p. 227

    [24] Bosco, Joseph, 1994, ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY Ch.16 p.435

    [25] Billoud, S., ‘When Confucius criticizes Zhu Xi and more stories…’, Warpt, Weft and Way (22 November 2012)

16. Renowned academic Edward Irons provides the following insight into the leadership and organisational structure of Yiguandao groups: 

    All Yiguandao groups are extremely hierarchical. At the heart of Yiguandao organisation is the temple (fotang), also called the daochang (道场, “Dao field”). Key positions within the temple are the altar keeper (tanzhu 坛主), religious helpers (foyuan 佛员, “Buddha” member), and believers (“Dao intimates,” daoqin 道亲). For the core believers the temple serves as a space of social gathering as well as ritual practice.

    Functioning at a level above the individual temple organisation are the key positions of transmission master (also referred to as “initiators,” (dianchuanshi 点传师), leader transmission masters (lingdao dianchuanshi 领导点传师), and seniors (qianren, also referred to by the title daozhang (道长), “elders of the way”). The seniors are widely revered. But the transmission masters are key. In addition to key religious staff, they constitute a middle management through which most events are managed. Yiguandao’s success as an organisation has been due to this active, motivated body of middle management.

    The temple does not exist in isolation; each is linked to a parent temple. The parent temples are in turn linked to large, established home temples. These will normally be where senior leadership is based. In some cases, the home temple will serve as a lineage head temple.[26]

    Status of Yiguandao and the treatment of its leaders and adherents in China

    [26] Irons, E., ‘Yiguandao’, World Religions and Spirituality Project >

    Yiguandao was first proscribed as an illegal sect in China in 1946 and was the target of a nationwide crackdown in December 1950.  During the Cultural Revolution between 1966 and 1976, Yiguandao sought to re-establish itself in China but became the target of strike-hard campaigns in 1983.  At this time, many followers were incarcerated or executed.[27]

    [27] ‘Yi Guandao DFAT cable IC69305L’, Department of Foreign Affairs and Trade, 18 February 2019, 20190301085228

17. China’s pre-1997 Criminal Law classified Yiguandao as a ‘reactionary secret society’ or fandong huidaomen, a pejorative term denoting people or ideas that embrace outdated or superstitious views.  This term has since fallen into disuse following the 1997 amendment of Article 300 of the Criminal Law which repealed ‘reactionary secret society’ and replaced it with ‘organising a cult to undermine implementation of the law’.[28]

    [28] ‘The Ongoing Crackdown on Yi Guan Dao’, Dui Hai Human Rights Journal, 8 April 2021

18. More recently, the status of Yiguandao in 2019 was ‘unclear’ as there were no estimates of the number of followers in mainland China.[29]  Notably, Yiguandao was not included on official lists of banned cults issued in 2000, 2005 or 2017.[30]  Furthermore, in 2017 Yiguandao was not included on the list of active cults released by the China Anti-Cult Association, suggesting that it was not considered by the Chinese authorities to have an active presence in mainland China.[31]  Research undertaken by the Department of Home Affairs’ Country of Origin Information Services Section in a report dated 7 June 2017[32] did not locate any information from searches on Yiguandao practitioners being arrested, detained or imprisoned in mainland China.

    [29] ‘Yi Guandao DFAT cable IC69305L’, Department of Foreign Affairs and Trade, 18 February 2019, 20190301085228

    [30] DFAT Country Information Report - People's Republic of China,’ Department of Foreign Affairs and Trade, 21 December 2021, p. 23, 20211222100210; ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, Amsterdam University Press, 2017, p.245, CISEDB50AD8167; ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’, Bitter Winter, 6 November 2018, CXBB8A1DA37971

    [31] Ibid.

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

1. Assistant Professor in Chinese Religions Studies at Taiwan’s National Chengchi University, Ching-chich Lin, asserts that public interactions between the PRC government and Yiguandao in Taiwan commenced during the mid-2000s and that some branches of Yiguandao have returned and operate within China, with the tacit approval of the authorities, as long as they do not preach in public.[33]  Lin asserts that although Yiguandao had been suppressed in mainland China, ‘the situation changed in the mid-1980s’, and the ensuing ‘National Studies Fever’ of the 2000s provided a means for Yiguandao to contribute to the revitalisation of traditional culture:

   There has been no legal status for Yiguandao as loyalist or traditionalist under the PRC’s rule. Yiguandao has been categorized an evil cult since the very beginning of the PRC. In order to be considered good citizens, followers of Yiguandao had to relinquish their membership and publicly denounce the religion and its leaders and followers. Traditional culture was disregarded and massively destroyed before the end of the Cultural Revolution. By then, there was no social or cultural space in which Yiguandao could survive. However, the situation changed in the mid-1980s. The call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. Taiwan’s experiences in promoting the movement of reciting classics and poems were then demanded in mainland China also. The PRC needed traditional culture to restore national glory and strengthen its national identity. The ‘National Studies Fever’ (guoxuere 國學熱) began in 1993 in the universities, gradually spreading to the public and becoming popular in the 2000s. Scholars, educators, and parents were devoted to the trend, while the state invested national resources to construct infrastructure and to promote the movement. The establishment of Confucius Institutes abroad represents the crystallization of the National Studies Fever. There are now 500 branches offering 1000 courses in 134 countries, educating in the Chinese language and propelling Chinese culture into the world. This can be considered a revitalization movement that the state and society use to try to restore the missing traditional culture, though Yiguandao also tries to syncretize Buddhism, Daoism, Christianity, and Islam with Chinese culture, mainly Confucianism. Yiguandao has thus participated in the trend.[34]

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

   [34] ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p.243

2. Lin states that some Taiwanese branches of Yiguandao sent people to China to establish educational programs for children ‘highlighting moral teaching’, and that Chinese authorities were in favour of Yiguandao’s return to the mainland for several reasons, including to garner support from Taiwanese and overseas Chinese people, as well as to try to stem the growth of Christian groups in rural areas.  According to Lin, representatives of the mainland Chinese government engaged in dialogue with Yiguandao representatives in Taiwan during the 1990s and 2000s.  Lin references a book based on the Ph.D dissertation of a mainland Chinese official, which ‘suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China’.  Lin suggests that the PRC government may be seeking ways of legalising Yiguandao, but faces issues including how to manage its past criticism of the group, a situation also faced by the Taiwanese government thirty years ago:

   […] The PRC government is facing a similar situation that its KMT counterpart experienced three decades ago: after criticizing and suppressing Yiguandao for decades, how does it now legalize the religion and reinterpret that past criticism and suppression? One potential discourse explains that Yiguandao in Taiwan has fundamentally transformed its conspiratorial tendencies into a patriotic and philanthropic religious association. The PRC government needs a reasonable discourse to legitimate the return of Yiguandao.[35]

   [35] Ibid., p 244

3. Lin also states that the Chinese authorities did not include Yiguandao on official lists of ‘evil cults’ issued in 2000 and 2005, indicating a change in the attitude of the authorities.  ‘Mutual understanding’ between Taiwanese Yiguandao groups and mainland authorities commenced in the 1990s and was strengthened by invitations to Yiguandao leaders to visit mainland China from 2006. The status of Yiguandao in China changed to a ‘gray’ area:

   From feudal superstition and counter-revolutionaries to protectors and missionaries of national culture, followers of Yiguandao are now expected to be loyal to the PRC by playing the traditionalist role against Christianity. On the list of evil cults announced in 2000 and 2005, Yiguandao was no longer categorized as an evil cult. Some branches were tacitly connived with to return to mainland China, as long as they did not cross over the ‘red line’ and preach religion in public. In the past, most activities of Yiguandao in mainland China were under surveillance; some religious leaders were even arrested or exiled. Now Yiguandao shifts its status in China from ‘red zone’ to ‘gray zone’, to borrow Yang Fenggang’s concept. It took more than five decades to overturn the relationship between Yiguandao and the PRC government. Mutual understanding began in the early 1990s when Yiguandao associations made donations to assist victims of several natural disasters. Yiguandao leaders entrusted messages to scholars to communicate with the think-tank Institute of World Religions, Chinese Academy of Social Science in 1996, and also invited the Institute’s faculty members to visit branches of Yiguandao and attend academic forums organized by the religion in Taiwan from 1997 onwards. Yiguandao leaders were also invited to visit mainland China by various bureaucratic administrations from 2006 onwards. The United Front Work Department even invited several top leaders of Yiguandao branches to visit several historical sites of the religion and the hometowns of the religion’s modern founders, Zhang Tianran and Sun Huiming (孫慧明). Former KMT Chair, Wu Boxion, helped pass the Yiguandao organization’s message to former CCP Chair and PRC President Hu Jintao (胡錦濤) with the suggestion of legalizing Yiguandao in mainland China on 26 May 2008.[36]

   [36] Ibid., p 245

4. According to a 2018 Dui Hai Foundation report, signs of tolerance for Yiguandao appeared to be emerging in China:

   Although YGD has been dubbed a “universal villain” in official media and is often cited by human rights groups and governments concerned about religious freedom in China, the lack of recent reporting on YGD in China has led some experts to believe that the religion has gained tacit acceptance by authorities.  Some are skeptical about the extent of the group’s persecution or even its existence in China today, claiming that “it is unlikely that [the sect] still exist[s].” Others speculate that even if YGD still has followers in China they are likely concentrated in Guangdong and Fujian where there are more practicing Taiwanese YGD members, following the religion’s legalization in Taiwan in 1987.

   In May 2009, an official from China’s State Administration for Religious Affairs visited a YGD monastery in Taipei. The Chinese Religious Studies Yearbook also stated that China Academy of Social Sciences (CASS) researchers have attended academic conferences organized by Taiwanese YGD groups beginning in 2009. In 2017, CASS researchers joined overseas YGD leaders on a visit to the Zu Lai Temple in Brazil.[37]

   [37] ‘The Resurgence of Yi Guan Dao’, Dui Hai Human Rights Journal, 31 December 2018

5. In 2019, DFAT reported that ‘[i]nstances of persecution [of Yiguandao followers] appear to be localised and discreet’ and that it was ‘unclear in most cases whether Yi Guandao followers have been criminally charged for their religious activities’.[38]  A review of the annual US State Department Reports on International Religious Freedom issued between 2015 and 2022 does not elicit any illustrative examples of Yiguandao practitioners having been persecuted or otherwise harmed in China during this most recent seven year period.  Instead, these reports provide numerous examples of religious-based persecution having occurred throughout China including the following in Changchun City, Jilin Province:

   On August 21 [2022], police in Changchun City, Jilin Province, detained nine members of the Changchun Sunshine Reformed Church on the charge of “operating an illegal religious organization” and beat some members, who subsequently required hospitalization. According to the Italy-based NGO Center for Studies on New Religions, on September 9 [2022], the Changchun City Civil Affairs Bureau declared the Changchun Sunshine Reformed Church an “illegal social organization.”[39]

   Following a group arrest of Falun Gong practitioners in Changchun City, Jilin Province, in July [2020], police beat one practitioner, hit his head against the wall, and dragged him around on the concrete floor. He suffered severe injuries to his knees as a result.[40]

   [38] ‘Yi Guandao DFAT Cable IC69305L’, Department of Foreign Affairs and Trade, 18 February 2019, 20190301085228

   [39] US Department of State, 2022 Report on International Religious Freedom: China, 15 May 2023

   [40] US Department of State, 2020 Report on International Religious Freedom: China, 12 May 2021

6. In 2021, the Dui Hai Foundation reported the recent prosecution of some Yiguandao practitioners in the Guangdong Province but mostly for proselytisation offences.  It noted that sentences appear shorter for followers of Yiguandao than for other xie jiao groups such as Falun Gong and the Church of Almighty God.[41]  According to the Dui Hai Foundation, the situation for Yiguandao followers varies from place to place within China, with no recent reports of harm in the Jilin Province but some recent reports of harm experienced by Yiguandao leaders in Jiangsu Province and Guangdong Province:

   ·     On 9 February 2018, a couple from Jiangsu Province were given suspended sentences for printing illegal religious books, including over 3,000 copies used by Yiguandao adherents at a private gathering.  The couple was convicted of ‘illegal business activity’, a charge frequently used against religious groups and private individuals operating outside the state’s control;

   ·     On 20 December 2018, seven Yiguandao leaders in the Chenghai District in Shantou, Guangdong Province were each sentenced to terms of imprisonment between eight and eighteen months for contravening Article 300 of the Criminal Law;

   ·     On 27 November 2019, fifteen Yiguandao leaders in the Chaoyang District in Shantou, Guangdong Province were found to have contravened Article 300 of the Criminal Law with punishments ranging from suspended sentences to three years in prison;

   ·     In May 2020, Yiguandao leader Li Hesheng from the Chaoyang District in Shantou, Guangdong Province received a prison sentence of eight months suspended for one year for recruiting 70 members for his self-funded temple.[42]

   [41] ‘The Ongoing Crackdown on Yi Guan Dao’, Dui Hai Human Rights Journal, 8 April 2021 Ibid.

Analysis, reasons and findings

At hearing, the applicant stated that he fears that he will be arrested, tortured and jailed by the Chinese authorities if he returns to China.  He believes that the authorities will do this because his name was placed on a PSB blacklist, at some point in or around May 2016, when police became aware that he was a Yiguandao practitioner who had attended temple gatherings in Changchun in the Jilin Province of China where he spoke of his Yiguandao practice in Australia and supplied about a dozen religious books to other practitioners at the temple.

During the hearing, the Tribunal discussed with the applicant his family composition, education, work experience, residential history, visa and migration history, knowledge of Yiguandao, practice of Yiguandao in Australia and China, relationships with and support of other Yiguandao practitioners in China and why he fears returning to China.

Initial interest in Yiguandao, initiation and commencement of Yiguandao practice

Asked what drew him to the practice of Yiguandao, the applicant told the Tribunal that he was introduced to the religion by believers who attended his Sydney home in order to preach the Dao to his mother who was recovering from a car accident in 2007.  He explained that he was [Age] years old the time when their female landlord took his mother to a Yiguandao temple and taught her what Dao meant. His mother then became a believer in 2008 and has been practising since that time as well as assisting Yiguandao preachers at the temple.  He then followed his mother’s path and was eventually initiated in 2009 at the witness’ private home temple in [Suburb 2] on 15 March 2009.[43]  

[43] 15 March 2009 on the Gregorian calendar, translates to 19 February 2099 in the Lunar calendar.

The Tribunal has some difficulty accepting the applicant’s evidence in relation to the commencement of his interest in, and initiation into the practice of, Yiguandao.   While the Tribunal acknowledges the extensive range of documentary evidence by way of the translated initiation card and an extensive array of letters of support from fellow practitioners attesting to these matters, the Tribunal observes the delegate’s concern that such evidence can be readily produced and is thus of limited probative value.  Notably, the letters of support are very similar in style and content, tending to indicate that they have been produced on the instruction of the applicant. Furthermore, the Tribunal notes the witness’ inability to provide detailed evidence in relation to the applicant’s initiation at her home in [Suburb 2] in 2009, particularly in relation to the number of people initiated that day and their gender.  The witness was unable to provide any persuasive testimony in support of the applicant’s claim that he had been initiated in 2009 at her home temple.  On the available evidence, the Tribunal is prepared to accept that the applicant has been initiated at some point in 2009 and that his participation in Yiguandao religious practice has grown over the years.    

Knowledge of and commitment to the practice of Yiguandao in Australia

At hearing, the Tribunal explored the applicant’s knowledge and understanding of the origins of Yiguandao, its doctrines and beliefs along with the rituals and practices observed by its followers. The applicant conveyed a clear understanding of the religion’s syncretic nature and origins but had difficulty explaining a number of beliefs and rituals involved. For example, the applicant had considerable difficulty explaining the nature and significance of the three secret treasures given during initiation along with the practice of spirit writing and its purpose.  That said, the applicant did demonstrate an awareness of the belief in an all-encompassing spirit known as Laomuniang and other insights into temple hierarchies, ritual offerings made during, and the nature of various, Yiguandao practitioner gatherings.  The Tribunal considered the applicant’s responses to the various questions on this matter and regards the applicant’s understanding of aspects of Yiguandao was indicative of the knowledge held by a follower of the religion who generally observed their faith.   

This level of understanding is consistent with other evidence before the Tribunal relating to the applicant’s commitment to his practice of Yiguandao in Australia.  The witness told the Tribunal that the applicant attends the temple, with his mother, maybe once a week or fortnight.  She further explained that his role involves maintaining the temple, buying fruit to be used as offerings during prayer on the first and fifteenth days of the lunar month, inviting people to attend the temple as well as teaching them about the Dao, giving instructions during ceremonies and classes.  The witness explained that these responsibilities were part of his duties as a tanzhu, or altar keeper, and ‘lower level lecturer’ at the temple.  The Tribunal accepts this, while noting other documentary evidence in which it is stated that he shares altar keeping responsibilities with his mother.  The Tribunal also accepts that the applicant has undertaken classes and since 29 December 2022 has been recognised as a ‘lower level lecturer’ at his temple in [Suburb 1].

The applicant provided photographs of himself attending ceremonies and events in what appeared to be Yiguandao-related gatherings. The Tribunal accepts that the applicant has attended at a Yiguandao temple and some gatherings. He also demonstrated some knowledge of classes and events undertaken at the temple. 

The applicant also told the Tribunal that he had not spoken publicly or published any pro-Yiguandao or anti-Chinese government views and opinions.  However, on behalf of his temple, he has handed out Yiguandao-related pamphlets to parents and children outside schools and in shopping centres.  The Tribunal accepts this.

Practice of Yiguandao and events in China

The Tribunal has considerable difficulty accepting applicant’s claims in relation to his practice of Yiguandao in China during his return trips in 2011, 2012 and 2015 and the subsequent claims of harm experienced by his fellow Yiguandao practitioners in China following his departure from China in December 2015.  The Tribunal finds these claims to be a series of unsubstantiated assertions that are inconsistent or implausible in parts, vague and lacking in detail in key respects and contrived to bolster his protection claims. The staggered and iterative nature of the applicant’s presentation of his oral evidence at hearing in relation to a number of these claims also suggests that these claims were fabricated as they tended to evolve during the hearing itself. 

Firstly, the applicant’s account of his residences in China during these trips was inconsistent.  While the applicant gave consistent oral evidence at interview and hearing that he resided with his grandmother at the family home in Changchung during his first two return trips, he gave inconsistent evidence in relation to his residence during his third and most recent return trip to China.  At interview, he told the delegate that he first stayed at his family home and then later stayed at [Mr C]’s apartment during that third return trip.  However, at hearing he gave evidence that he stayed at [Mr C]’s apartment for the entire time during his third return trip to China.  When asked at hearing to account for this discrepancy, the applicant denied that he told the delegate he had stayed with his family members instead of [Mr C] during the initial part of his third visit to China.  The Tribunal has reviewed the recording of the interview with the delegate and observes that the evidence is inconsistent with that provided at hearing.  In the absence of any explanation for this inconsistency, the Tribunal finds the applicant’s evidence in relation to his whereabouts and activities during his third return trip to China to be unreliable.  A significant portion of the applicant’s claims relate to his participation in Yiguandao gatherings at [Mr C]’s apartment which occurred during that third return trip to China and it is difficult to accept those claims in circumstances where the applicant was unable to provide consistent evidence in relation to whether he lived at that apartment for the duration of that visit to China.  The Tribunal’s view is underscored by the fact that the applicant was unable to provide detail of the address of [Mr C]’s apartment beyond telling the Tribunal that it was an apartment located in [a] District in a street that was opposite [a] train station.  The Tribunal is of the view that a person who resided with a childhood friend at their apartment in China for about a month, and attended religious gatherings there, would be able to recall the address of that apartment in more detail.  This inconsistency and lack of detail, considered cumulatively, leads the Tribunal to find that the applicant did not reside at [Mr C]’s apartment during his third return trip to China and raises doubts about the claimed frequency of his participation of Yiguandao-related activities at that apartment during his return trips to China.

1. Secondly, the applicant’s evidence in relation to the extent of his attendance at clandestine Yiguandao group meetings that occurred above [Ms D]’s café during his second return trip to China was inconsistent.  In paragraph 5 of his statutory declaration made on 6 June 2016, the applicant maintained that he attended every meeting that [Mr C] organised in the room above the café during this particular trip and that these meetings occurred ‘regularly at weekends’ where he told others about his Yiguandao practice in Australia. At hearing, the applicant told the Tribunal that secret Yiguandao meetings had been organised by [Mr C] mostly twice per week but he did not attend each of those meetings.  Asked to account for this inconsistency, the applicant accepted that he had embellished his evidence in his statutory declaration and that the statement in the declaration was ‘not absolutely right’.  The Tribunal has serious concerns about the applicant’s willingness to make a statement in a statutory declaration that is false.  This undermines the applicant’s credibility and raises doubts about the nature and frequency of the applicant’s claimed Yiguandao practice in China and degree of association with other Yiguandao practitioners.

2. Thirdly, the Tribunal is concerned that there is a distinct lack of corroborative evidence in relation to any of his Yiguandao-related activities in China and the claimed incidents of harm experienced by his fellow Yiguandao practitioners in China as described above.  The applicant did not provide any documents to the Department in support of these claims despite guidance advice in the application form impressing upon him that he must, wherever possible, do so.  In the interview with the delegate, the delegate explained to the applicant that it was his responsibility to provide all of his claims to the Department and provide evidence in support of his claims.  The applicant confirmed that he understood this but did not provide any significant corroborative evidence in relation to these claims to the Department following his interview with the delegate.

3. At the outset of hearing on 30 May 2023, the Tribunal explained s 5AAA of the Act and asked the applicant whether he had any documents he wished to provide in support of his claims. The applicant only offered to show the Tribunal copies of books from his temple.  While the Tribunal accepts that he has access to such books, this is not persuasive in terms of demonstrating that he smuggled such books into China, such as on 17 November 2015, as claimed.  At the conclusion of that hearing, the Tribunal put its concern to the applicant the distinct lack of persuasive evidence, particularly documentary evidence and witness testimony, to demonstrate the veracity of key aspects of his claims, including but not limited to:

   ·     the existence of any degree of friendship between him and [Mr C] and [Ms D];

   ·     his participation in Yiguandao practice in China with [Mr C] and [Ms D] during any of his three return trips to China;

   ·     his smuggling of Yiguandao books into China on 17 November 2015;

   ·     his living with [Mr C] during any stage of his third return trip to China in late 2015;

   ·     the events surrounding the police raids at [Mr C]’s house and [Ms D]’s café in May 2016;

   ·     the arrest of other Yiguandao followers after those police raids;

   ·     the sentencing and imprisonment of [Mr C] for a period of five years after those police raids;

   ·     the conversations he had with [Ms D] in which he told her to flee Changchung following those police raids in May 2016;

   ·     the conversations he had with various people, including [Ms D] and [Ms E], who warned him that his name had been placed on a PSB blacklist.

4. The Tribunal drew to the applicant’s attention the distinct lack of corroborative evidence, or even evidence of efforts to obtain such material, might lead the Tribunal to find that these claims were unfounded.  By way of response, the applicant stated that it was impossible for anyone in China to send him written evidence that he was on a PSB blacklist or wanted by the police.  He asserted that people, including [Ms E], had already taken great risks for him and he would not want to impose upon them further as that might result in them losing their job, being arrested and imprisoned. 

5. The Tribunal has considered this response but finds that it does not overcome its concern.    While the Tribunal accepts that it would be unreasonable to expect certain documents to be provided given the nature of some of the applicant’s claims in relation to events in China, it remains that it would be reasonable to expect the applicant to have provided some documentary evidence and witness testimony to support most if not all of these claims.  For example, despite his claimed association with Yiguandao practitioners in China, the applicant was unable to provide any photographs of himself with [Mr C] and [Ms D] or copies of any correspondence such as letters, emails and text messages between himself, these two people or indeed any other Yiguandao practitioners in China.  There was also no persuasive witness testimony to support any of these claims. For example, the applicant did not call any witnesses, such as Yiguandao members in Australia, who were able to attest to his experiences in China and could confirm his narrative in relation to the adverse consequences faced by their fellow Yiguandao practitioners in China. The lack of corroborative evidence raises a significant concern for the Tribunal.  In the circumstances of this particular case and the applicant’s claims, the Tribunal considers that the lack of any corroborative evidence relating to the applicant’s narrative of events that transpired in China raise further concerns about his credibility and the genuineness of his claims. 

6. Fourthly, the Tribunal is concerned about the implausible and speculative nature of aspects of the applicant’s claims as they relate to his understanding of the harm faced by his friends and fellow Yiguandao practitioners in China and how he came to know about those events.  The Tribunal raised the following concerns with the applicant at hearing in relation to the narrative presented in relation to the persecution faced by [Mr C], [Ms D] and fellow Yiguandao practitioners following the police raids that occurred at [Mr C]’s apartment and [Ms D]’s café on 7 May 2016:

   ·     That there was no lucid explanation given as to how and when he became aware that [Mr C] had been convicted of criminal offences and then sentenced to five years’ imprisonment at [Prison] in Changchung.

   ·     That despite them being childhood friends, [Mr C] has not contacted the applicant since the raids, and this was strange given that raids occurred some seven years ago and that despite this the applicant has no recent knowledge of [Mr C]’s present whereabouts or status given that this claimed term of imprisonment has elapsed.

   ·     That he has had no contact with any of the other fellow Yiguandao practitioners he met in China who, he claimed at hearing, had been sentenced to prison for periods ranging between one and three years and therefore most, if not all, of whom would have been released by the date of the hearing.

   ·     That his evidence was far-fetched in terms of:

   o   his childhood friend [Ms E], an office secretary at [Employer], taking steps to access and provide to him in Australia protected information about Chinese criminal investigations and prosecutions, particularly where it would be reasonable to expect she would not have access to such information let alone risk her job and safety by providing it to him given the limited nature of their relationship.

   o   [Ms D]’s friend’s husband providing information about the confessions made to police by the applicant’s fellow Yiguandao practitioners in China because there was no acceptable reason why this man would have taken such risks in accessing and disclosing such information to [Ms D].  It was also implausible that this man would have held the roles of both [Occupation] and police officer at the police station where such information was held.

   ·     That his evidence in relation to [Ms D] telling him on 20 May 2016 that she planned to escape the police in Changchung by going to temporarily live in [Country 2] was difficult to accept given country information indicating that she would have been readily detected at the Chinese border as airport security officials have access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, also known as Policenet or Golden Shield. [44]

   ·     That [Ms D] successfully managed to evade the police and Chinese authorities for at least two weeks after the raids in May 2016, despite others in her network being detained at a time when she was being investigated for a criminal offence.

   [44] DHA, Standard Q & A Report, China: 20190218152038 – Christianity in Fujian province – Airport departure process, pp 7–8.

7. The applicant considered the Tribunal’s concerns and responded by insisting that he expected [Mr C] to contact him if he had been released from [Prison].  In relation to [Ms D], he indicated that he was not sure whether she had managed to escape to [Country 2] or had been arrested and it was not impossible for her to evade the police for a short period given other criminals in China managed to evade authorities for many years.  The Tribunal has considered these responses and finds that they do not overcome its overall concern that the applicant’s evidence in relation to the series of events relating to the persecution of his friends and fellow Yiguandao practitioners in China is implausible and has been fabricated in support of his protection visa application.  While the Tribunal is prepared to accept the possibility that [Ms D] may have successfully evaded the police for a short period in May 2016, it remains that the applicant has not satisfactorily addressed the majority of the Tribunal’s concerns. The Tribunal’s doubts about the veracity of these claims are reinforced by the fact that there is no documentary or other witness testimony relating to the existence of any of these individuals in China, the applicant’s relationship with these individuals, his conduct with them in China during these three return trips and the harm these people experienced in China for reasons of their religion. 

8. Given these concerns, when considered cumulatively, the Tribunal does not accept the majority of the applicant’s claims in relation to the nature and extent of his practice of Yiguandao in China and rejects his claims that he smuggled Yiguandao books into China and that his friends and fellow Yiguandao practitioners were investigated, detained and imprisoned.  The Tribunal is prepared to accept that the applicant met with some Yiguandao practitioners in China, as evinced through the photographic evidence in that regard before the Tribunal, but does not accept the balance of claims as they relate to his practice of Yiguandao in China and the persecution faced by his friends and fellow Yiguandao practitioners in China. 

9. Accordingly, it follows that there is no basis upon which the Tribunal can accept that the applicant’s name is on a PSB watch list or other ‘wanted persons’ list held by the Chinese police or other Chinese authorities.

   Nature of the applicant’s proposed religious practice and activities should he return to China

10. At hearing, the applicant claimed that if he were forced to return to China he would initially return to Changchung and then eventually move to a ‘safer’ rural area where he planned to practise Yiguandao and proselytise. 

11. Taking into account the above findings in relation to the nature of the applicant’s Yiguandao commitment and practice, along with his position within the Yiguandao temple hierarchy, the Tribunal is prepared to accept that he will privately practise Yiguandao in China but does not accept that he will proselytise in China or otherwise recruit members to the practice of Yiguandao as he has not done so previously and has not demonstrated the capacity or qualifications to do so given his previous experience and current profile in the Yiguandao temple in Australia. 

12. Furthermore, the applicant’s evidence in this regard was particularly vague and there was little detail in relation to where and how in China he would go about establishing his temple and developing a network to recruit followers who would then be initiated by a Yiguandao master.

    Summary of key findings

13. By way of overall summary, the Tribunal has found above that:

    ·     The applicant is a follower of Yiguandao who was initiated at some point in 2009 and eventually became tanzhu and ‘lower level lecturer’.

    ·     The applicant has practised Yiguandao in Australia but his practice in China has not been extensive and has not drawn any adverse interest from the Chinese authorities.

    ·     The applicant’s name is not on a PSB watch list or other ‘wanted persons’ list held by the Chinese police or other Chinese authorities.

    ·     The applicant will privately practise Yiguandao in China but will not become a Yiguandao leader, proselytise or establish a temple in China where he would recruit members and arrange for their initiation into the practice of Yiguandao.

    Assessment: refugee criterion

14. The Tribunal now assesses whether, in light of the above findings, and having regard to other relevant factors – in particular country information – there is a real chance of the applicant experiencing serious harm amounting to persecution if he returns to China (for the reason of his religion, or for any other reason enumerated in s. 5J(1)).

15. Having considered the country information, the Tribunal notes that more recent country information indicates that the government’s attitude to Yiguandao has changed and that it is is no longer considered to be an ‘evil cult’ and that instances of harm generally involve persons who proselytise and have been concentrated in areas outside Jilin Province.  The Tribunal notes an academic authority on the sect suggests that the Chinese government may be seeking ways of legalising Yiguandao.  The Tribunal accepts that since the 1990s Yiguandao has been associated with preserving cultural heritage in China. Taiwanese Yiguandao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the situation for Yiguandao members changed in the mid-1980s and the National Studies Fever of the 2000s provided a means for Yiguandao 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. The Tribunal notes scholars, educators and parents were devoted to the trend while the state invested national resources to construct infrastructure and to promote the movement, Confucius institutes were established and there are now 500 branches offering 1000 courses, educating in the Chinese language and propelling Chinese culture into the world. The Tribunal notes there is a revitalisation movement that the state and society used to try to restore the missing traditional culture, though Yiguandao also tries to syncretise Buddhism.  The Tribunal notes invitations were given to Taiwanese Yiguandao leaders to visit mainland China from 2006.  While activities of Yiguandao in mainland China were under surveillance and some religious leaders were arrested or exiled it notes there is now mutual understanding which began in the early 1990s when Yiguandao associations made donations to assist victims of several natural disasters. The Tribunal notes Yiguandao leaders were invited to visit mainland China from 2006 onwards and the United Front Work Department invited several top leaders of Yiguandao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[45]

    [45] ‘Yiguan Dao under the Shadow of Nationalism: Traders, Conspirators, traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p 245

16. Having considered this more recent country information in the context of the other independent information outlined above, the Tribunal is not satisfied that practitioners of Yiguandao, especially those who do not proselytise, are persecuted or harmed in China.  The Tribunal has taken into account the applicant’s assertion that he still faces harm in China because the authorities would regard him to be a person who has participated in anti-Chinese government activities who has ‘threatened the government and safety of China’.  Having considered the country information, the Tribunal is not satisfied that this is the case.  It has formed the view that the situation for Yiguandao members has improved and appears to be improving to the extent that the authorities in China tolerate the private practise of Yiguandao and are looking for ways of legalising Yiguandao as they consider it promotes Chinese tradition and slows down the rapid growth of Christian churches and sectarianism in rural areas.  The Tribunal also notes the Country of Origin Information Services Section in a report dated 7 June 2017[46] did not locate any information from searches on Yiguandao practitioners being arrested, detained or imprisoned in mainland China.  The Tribunal also notes that the country information indicates that harm might only be faced by Yiguandao leaders who proselytise.

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

17. On the basis of the country information, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm because he is a member of Yiguandao.

    Assessment: complementary protection

18. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

19. The Tribunal takes into account the above findings of fact and country information about the treatment of Yiguandao members in China.  It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him (such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment).  It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty.  In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to China.

20. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm: s 36(2)(aa).

    Conclusion

21. 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).

22. 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).

23. 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 criterion in s 36(2).

    DECISION

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

   Peter Papadopoulos
   Member

   
   

   Attachment – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958

   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 below.

   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 below.

   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.

   Extract of key provisions of the 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.

   …