1731890 (Refugee)

1731890 (Refugee) [2024] AATA 2672 (8 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731890
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:8 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 8 March 2024 at 11:33am
CATCHWORDS
REFUGEE – Protection Visa – China – religion – a devout Christian from a family church – a member of the Church of Almighty God – applicant’s evidence of her attempts at preaching and proselytising in China to be convincing – applicant demonstrated a complete understanding of the fundamental beliefs of and teachings of the Church of Almighty God – State protection is not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 7 September 2017.
The applicant did not attend an interview with the Department. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act and is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act, and therefore is not a person in respect of whom Australia has complementary protection obligations.
The Tribunal invited the applicant to attend a hearing on 12 October 2023. The applicant did not attend the hearing, and accordingly, the Tribunal dismissed the application under s.426A(1A)(b) of the Act on 13 October 2023. The applicant did not seek reinstatement of the application within the 14-day period within which he could seek reinstatement.
In November 2023 the applicant provided the Tribunal with a series of email submissions seeking ‘reinstatement’ of the application for review. The applicant provided evidence that a change of address for service which was sent to the Tribunal in March 2023 was provided to the Tribunal without her knowledge, and that the email address for service provided was not her own and was monitored not by her, but by an unregistered migration agent. The applicant submitted that she was not advised by the unregistered migration agent of the hearing scheduled for 12 October 2023, and provided evidence in support of this claim, including screenshots of a [social media] conversation between the applicant and the unregistered migration agent, which she claimed showed that the agent had not informed her of the hearing date. The Tribunal accepted the applicant’s claims in this regard, and on 16 November 2023, re-opened the application for review.
The applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether 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 she will suffer significant harm.
In addition to her application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and notice of the decision from the Department. The applicant provided a number of letters requesting a letter confirming her application for review for the purpose of maintaining access to Medicare.
On 20 March 2023, the Tribunal received a Change of contact details form, which updated the applicant’s email address for service.
On 21 September 2023 the Tribunal invited the applicant to attend a hearing on 12 October 2023. The applicant did not attend the hearing and the Tribunal dismissed the application for review on 13 October 2023 and confirmed dismissal of the application on 30 October 2023.
On 8 November 2023, the Tribunal received a further contact details form, together with a request for ‘reinstatement’ of the application for review and supporting documents, including a submission in which she claimed that the Change of contact details form provided to the Tribunal on 20 March 2023 was provided without her knowledge, and that the email address for service provided with that form was not her own and she was not notified of the hearing which had been scheduled for 12 October 2023. The applicant provided further information in support of this request on 13 November 2023, including a Word document containing copies of screenshots of a [social media] conversation on 6 November 2023 between the applicant and an unregistered migration agent whom the applicant knows only as ‘[Mr A]’.
On 16 November 2023 the Tribunal re-opened the application for review on the basis that it was satisfied that the Change of address form provided on 20 March 2023 was provided without the applicant’s knowledge and the applicant was not made aware of the hearing that was scheduled for 12 October 2023. In particular, the Tribunal was concerned that the [social media] conversation may indicate that the person the applicant knows as ‘[Mr A]’ may have acted fraudulently in not providing the applicant with notice of the scheduled hearing.
On 20 November 2023, the Tribunal notified the applicant that it had re-opened her application for review.
On 24 November 2023, the applicant provided the Tribunal with an email submission which included a completed Pre-hearing information form and a submission headed ‘Dear Tribunal officer, jurors’, which included reference to published articles and country information, the details of which are set out at paragraph 33 of these reasons. On 25 November 2023 the applicant provided an email in which she corrected some of the details she had provided in the Pre-hearing information form. Further copies of these attachments were provided on 26 November 2023. On 14 December 2023 the applicant an updated submission, headed ‘Dear Presiding Member’.
The applicant provided responses to hearing invitations for 9 February 2024 and 5 March 2024. The Tribunal was unable to proceed with the hearing on 9 February 2024 due to the unavailability of the Member. The applicant provided a copy of her Chinese passport at the hearing on 5 March 2024.
The Tribunal has had regard to these documents. The Tribunal has also had regard to the documents on the Department file, which include the protection visa application and a copy of the applicant’s Chinese passport.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicant provided copies of her Chinese passport to the Department and to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who she claims to be, that she is a national of China, which is also her receiving country.
The applicant claimed at the hearing that she did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The applicant made only very general and vague claims in her Protection visa application. She claimed that:
a.She is a devout Christian from a family church;
b.There is no freedom of religious belief in China;
c.Many of her church friends were caught at family gatherings and were cruelly tortured and insulted at a detention centre;
d.The police wanted to arrest her because they knew she is a devout Christian from a family church. The police continually came to her home and harassed her family;
e.She escaped to Australia for her own safety; and
f.In Australia she feels there is freedom of religious belief and she can believe in Jesus Christ without any restraints.
The contact details in the application form were for a [name] at an address in [address]. The Tribunal is aware from its experience in hearing Protection visa cases that the address for service provided is associated with a Chinese national who was arrested in 2018 in connection with immigration fraud, including falsely claiming to be a migration agent.[1]
Departmental interview and delegate’s decision
[1] ‘Sydney Chinese woman illegally represents Australian immigrant application, arrested when she wants to return home’, 24 December 2018.
The applicant provided a copy of the delegate’s decision with her application for review. The delegate’s decision records that the applicant was invited to attend a protection visa interview on 6 December 2017 but failed to attend.
The delegate was not satisfied that the written materials provided by the applicant provide a sufficient basis on which they could be satisfied that the applicant will be targeted by the Chinese government or that she faces harm of any kind for such a reason on return to China. The delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act, and therefore was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. The delegate also considered that there is no real risk of the applicant facing significant harm, as defined by s.36(2A) of the Act, if she returns to China in the foreseeable future, and therefore is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Claims contained in written submission to the Tribunal
On 24 November 2023, the applicant provided the Tribunal with a completed Pre-hearing information form and a submission which included reference to published articles and country information. An updated version of the submission was provided on 14 December 2023. In the Pre-hearing information form, the applicant provided the following additional information about her claims:
a.She is a Member of the Church of Almighty God;
b.Her church is the subject of extreme persecution by the Chinese Communist Party (CCP);
c.Since joining the church on September 2003, she has endured mental torture and been afraid of being imprisoned by the Chinese government for her beliefs.
The applicant provides further details in her written submission. She claims that:
a.She was born in a village in Putian City, Fujian Province;
b.Her family was originally Buddhist, but when she was [age] years old, her entire family, other than her father, converted to Christianity. Her father was an atheist and she turned to religion to obtain spiritual support in an environment of domestic violence;
c.In the second half of 2002, the gospel of Almighty God spread to her family church. More than half of the members of her church became members of the Church of Almighty God. She was in high school at the time and about to take her college entrance examination, so she often missed Sunday gatherings and did not convert at that time;
d.In August 2003 she formally investigated the gospel of Almighty God, which was being taught by a pastor and several brothers and sisters from her family church. They came to her in person and communicated with her for two days. At first she was hesitant and afraid to believe in the gospel of Almighty God. She investigated it and studied it for about one month, after which she confirmed her belief in the gospel of the return of Jesus Christ in the last days, and she became a member of the Church of Almighty God;
e.When she was [age], she joined a team of church members who preached the gospel. She followed her church brothers and sisters to various villages and towns to preach the end-times gospel of Almighty God. She faced incomprehension, abuse and ridicule by Christians of other denominations, including threats to call the police;
f.In November 2004 she and others from her church testified about the gospel of Almighty God to an old church brother named [Brother B], who had a good understanding of the Bible. Within two weeks of investigating the gospel, he determined it was the true way. [Brother B] was subsequently reported for believing in the Church of Almighty God, arrested and sentenced to one year in a labour prison. This was a relatively light sentence as he was a new believer in the Church and not a Church leader;
g.She feared being arrested by the police because of her activities within the Church and feared she would undergo torture, including electric shocks, beatings, corporal punishment and forms of humiliation;
h.In October 2005, she moved to Xiamen because she knew the environment was not good in her hometown. She found the environment in Xiamen was no better, and the police issued rewards to people who reported believers in the Church. As a result of this environment, she and her Church brothers and sisters had to be careful in how they practised their faith. They could only attend gatherings of three to five people. They did not give each other their telephone numbers or real names or meet online;
i.While she was in Xiamen, she performed the role of ‘reception’ for Church of Almighty God gatherings. This involved maintaining a safe gathering place for followers. She also acted as a courier for the delivery of messages and books, as the telephone could not be used for communication because of monitoring by the police;
j.In the ten years that she was a believer in the Church of Almighty God in China, she moved home regularly. Sometimes gathering places became unsafe, such as when neighbours questioned her as to why three to five people were regularly coming to a place. It was common for her to move gathering places every two to three months and it was difficult to find places that did not have surveillance cameras;
k.At the beginning of 2016, a sister who once attended her gathering place was arrested because of her Church of Almighty God beliefs. She was detained in a detention centre for three months before being released. She was forced to sign a confession and guarantee statements. The sister was forced to watch videos praising the CCP and after her release, was harassed by local committee staff and continued to be monitored;
l.The 9^th BRICS summit was held in Xiamen in 2017. A year before the conference, government agencies began to apply stricter security conditions and increased the number of security guards on the streets. Migrant workers were also forced to return to their hometowns. She found it harder to undertake Church activities in this environment; and
m.She was granted a Tourist visa to Australia in May 2017. She was reluctant to leave her family as she had a young daughter. Her husband did not object to her beliefs but could not understand them and they eventually divorced in 2021. She plucked up the courage to leave for Australia in August 2017 and applied for the Protection visa in September 2017.
The applicant’s statement also contains information about beliefs of the Church of Almighty God, including references to verses from the Bible which are important to Church members and utterances attributed to Almighty God. It also includes information about the CCP labelling the Church of Almighty God as a cult, the reasons for the CCP’s persecution of the Church, including reference to the 28 May 2014 ‘McDonalds Murder case’ in Zhaoyuan, Shandong. This includes a link to a Youtube.com video on the incident. The applicant’s statement also details cases of members of the Church of Almighty God who have been persecuted by the CCP and lists and contains excerpts from the following reports and country information:
a.2019 Report on International Religious Freedom: China (Includes Tibet, Xinjiang, Hong Kong and Macau), US Department of State;
b.2022 Report on International Religious Freedom: China (Includes Tibet, Xinjiang, Hong Kong and Macau), US Department of State;
c.‘China: New Massive Wave of Persecution Against The Church of Almighty God’, Bitter Winter, 8 November 2023; and
d.Youtube.com links to the films Scars, To the Brink and Back and Behind the May 28 Zhaoyuan Case: The Truth Exposed.
Evidence at the 2024 hearing regarding preparation and contents of the application

At the hearing, the applicant gave evidence that she received assistance from a migration agent in preparing her visa application. She told the Tribunal that when she made the application, she told the agent that she was claiming protection because she was suffered religious persecution in China, however she did not tell the agent the details of the persecution or which denomination of Christianity she belongs to, as she did not trust the agent and thought she would have the opportunity to explain her situation face-to-face with the Department. She stated that in China, she was careful not to expose her real identity, and that even after she arrived in Australia, she remained scared to tell people which denomination she belongs to. She stated that she has been waiting for the opportunity to tell the Tribunal about her situation.
The applicant stated that she is not aware of the contents of the application form as the agent did not read the contents of the form back to her. The agent only asked her to provide personal details, such as her name, the names of her family members and details of her marriage. The agent also asked her for the ‘rough reasons’ as to why she was claiming protection. The applicant simply told the agent that she believed in Christianity. The agent told her that they understood and knew what to write for her. She told the Tribunal that she eventually found out that the agent was not registered. She was not notified by the agent of the interview which the Department invited her to attend in 2017, and she therefore missed the opportunity to explain her circumstances to the Department. She stated that she only found this out when she received a notice that her Medicare benefits were going to expire because her Bridging visa was about to end. The applicant stated that she then went in search of the same agent, who told her that they could submit her application for review to the Tribunal. She stated that about one year later, she heard news that the agent’s office had been closed by the police because the agent had lodged numerous ‘fake’ applications. She then found another representative through an introduction from her housemate, who stated that this person was honest. She stated that she knows this person only as ‘[Mr A]’, and that this person did not wish to be on the record as her representative. She stated that [Mr A] did not notify her of the hearing which the Tribunal scheduled in October 2023.
The Tribunal questioned the applicant about the copies of the written statement she provided to the Tribunal in November 2023. She stated that she wrote this statement herself. She claimed that her English has improved sufficiently since her arrival in Australia, so she was able to write parts of the statement herself and used Google translate to help her translate other sections. She confirmed that [Mr A] did not assist her in writing the statement and that she never told [Mr A] that she is a follower of the Church of Almighty God.
Evidence regarding the applicant’s background and travel
The applicant confirmed that she is a citizen of China and has not travelled to any countries other than Australia. She confirmed that she departed China by plane from Hong Kong, using her own passport. She stated that she came to Australia because she is a believer in the Church of Almighty God and her church is suppressed in China. She stated that she organised her own Tourist visa. She gave evidence that she grew up in a town in Putian, Fujian, and that in 2005 she moved to Xiamen. The details of the addresses she provided are overall consistent with address information provided with her Protection visa application, although there is some discrepancy in dates, which the Tribunal has no concerns about, given the applicant’s evidence of the cursory attention which her agent at the time devoted to her Protection visa application. She told the Tribunal that her address in Putian remained her hukou, and that when she moved to Xiamen, she was forced to move every two to three months, and that she rented at each location.
The applicant gave details of family members which are consistent with the information in her Protection visa application. She indicated that her father has passed away and her mother is still a resident of Putian. She married in 2011 and divorced in 2021 and has a daughter, who lives with her ex-husband’s mother in Fujian. When asked why she travelled to Australia without her husband and daughter, she stated that her husband is a Buddhist and loves China and does not wish to leave. She stated that her husband and ex-mother-in-law would not allow her to take her daughter with her.
She gave evidence that she completed high school in Fujian, the details of which are consistent with information in her Protection visa application form. She worked in sales for a [company], and prior to that worked in business and sales for [another] company. She currently works in [industry] in Australia. She lives with a housemate.
Evidence regarding beliefs in the Church of Almighty God
The applicant gave evidence that she became a Christian at the age of [age] when all of the members of her family, other than her father, joined a traditional Evangelical Christian church. In the second half of 2002, the gospel of Almighty God spread to her church. Two pastors from her church investigated the gospel taught by the Church of Almighty God and then testified to all members of their church that they believed it was the true gospel. She stated that she heard the details of the gospel in 2003 and decided to herself investigate the beliefs of the Church of Almighty God.
The Tribunal put to the applicant that at that stage, the Church of Almighty God had already been labelled as a xie jiao or cult by the Chinese government, and questioned why she or pastors of a traditional Evangelical church would consider looking at the teachings of an organisation that had been so labelled. The applicant responded that the gospel of Almighty God concerns the end times. She stated that the pastors were the ’shepherds’ of their church and had a duty to confirm whether the gospel as proclaimed by Almighty God is a true representation of the second coming of Jesus Christ or is a fake message. The pastors checked the Bible and the messages of the prophets and did not teach the gospel of the Almighty God to their congregation until they accepted it as the truth. Missionaries from the Church of Almighty God also explained the gospel and relevant Bible verses to the pastors.
The applicant stated that when she first heard about the gospel of Almighty God, she did not believe it immediately and was concerned it may have been fake, but she studied the gospel and accepted it. She had heard from the radio that the Church was considered a cult. When the two pastors from her church started talking about the Church, she had concerns that they were introducing her to a cult, but she respected the views of these pastors as she had known them since she was young, and she considered them to be knowledgeable. She confirmed that she was the only member of her family to adopt the Church of Almighty God as her faith. Her mother continued to practise as a Christian in a family church, as she could not understand the beliefs of the Church of Almighty God. Her ex-husband also refused to accept the Church of Almighty God and continued his beliefs as a Buddhist.
The applicant stated that the CCP has been persecuting the Church of Almighty God since Almighty God commenced their work in 1991. She also referred to the 28 May 2014 murder case at a McDonalds restaurant in Shandong, which she stated was fabricated by the CCP in order to blame the Church for the incident. She stated that in the court case, the suspects that were tried were in fact mental health patients who claimed that their beliefs were not those of the Church.
The applicant gave evidence that her practise of the Church of Almighty God in China involved reading the gospel of Almighty God and attending gatherings at least three times per week. She stated that these were family gatherings and not as formal as gatherings of a church congregation. They would involve meetings of three to five people. Each person had a specific skill or duty. Her roles included advocating the gospel, together with other members of her church. After she moved to Xiamen, her main duty was to act as a ‘receptionist’, which involved maintaining safety for members who attended gatherings. She rented places and adopted responsibility as the tenant. She was also responsible for greeting people who arrived and making sure that only the right people were allowed in. She also served as a courier, which involved delivering messages and sometimes also books or materials. The Church could not use their telephones to transmit messages, as they were monitored by the Chinese government, so instead they had to use more traditional forms of communication.
The Tribunal questioned how the applicant was able to proselytise or ‘advocate the gospel’ (in her words) in China, given the Church of Almighty God had already been declared a cult by the Chinese government in 1995. The applicant stated that she was just [age] and very young when she started doing this, so she followed other brothers and sisters of her church as they visited towns and villages. She stated that they looked for places that had some sort of visible sign of Christianity, such as a cross on a door. Many of the people they visited were scared to talk to them and kicked them out, so it was very difficult to spread the gospel, so they instead started to testify to friends, as well as to others that their friends introduced them to. She stated that it was too high risk preaching to strangers.
The applicant was able to speak knowledgeably about Church of Almighty God beliefs and practices. When asked who Almighty God is, she at first did not answer directly, but instead referred to verses from the Bible, including John 14:3, Matthew 24:27 and the Book of Revelation, which she stated prophesised the second coming of Jesus Christ. She was able to give the various names by which the Church members use to refer to God during the different ‘Ages’. She stated that the second coming of Jesus Christ will be realised in a way in which no-one can imagine, and that he will come to this earth as a human, with his intended work being very different, given it relates to judgement, revolution and the revelation. When asked if the second coming has already occurred, the applicant stated that Almighty God has already arrived in the form of a woman from China, which is the reason why some people cannot accept the Church of Almighty God, as it turns the classical belief system about Jesus on its head. She stated that the nature of God is that of the holy spirit and is genderless. She stated that she does not bother knowing the name of the woman in whose form Almighty God has arrived on Earth, as she prays to God, not to the individual. She stated that she could easily find out the person’s name from the internet, but has not had a need to do so. She stated that she is aware this person sought refuge in America because of persecution.
The applicant gave evidence of her Church’s belief in the three ‘Ages’ and was able to explain how their beliefs differ from those of an Evangelical church, in particular that the second coming has arrived. She demonstrated awareness of Church of Almighty God texts, including The Word Appears in the Flesh. She was also able to explain the concept of the great red dragon, claiming that this is a force coming from Satan, though in China it is expressed as a force that is against Jesus Christ and manifests itself through the persecution by the Chinese authorities. She confirmed that she was baptised as a Christian in her family church in China, but baptism does not exist in the Church of Almighty God, and she was able to explain the reasons why such a sacrament is not relevant to the Church.
The applicant gave evidence that in Xiamen she moved every three months because everything was being monitored in China. The police asked people to monitor their neighbours and to report any suspicious activity. She had to ensure the safety of the people who attended gatherings, so if neighbours became nosy and asked questions such as who her friends were and why they visited so often, she would take steps to move. Sometimes brothers and sisters from her church were also monitored, which also sparked the need for them to move their gathering place.
The applicant confirmed that she was never personally detained or harmed by the authorities or anyone else in China as a result of her religion. She gave evidence that she is aware of at least four members of her church community that were wanted or detained by the police. One was [name], one of the pastors who taught her the gospel. She stated that he was wanted by the police and had to go into hiding. Brothers and sisters of their church arranged places for him to hide. She does not know where he is now, but believes he may still be a fugitive.
The applicant then referred to [Brother B] and gave details of his detention which are consistent with those contained in her November 2023 written statement. She stated that [Brother B]’s arrest was the main reason why she left Putian, and that many Church believers were having difficulties at the time. She then gave evidence of a sister from her church who was detained for three months, the details of which are also consistent with the information from her November 2023 statement. She also had a colleague to whom she taught Almighty God’s gospel, whose family accused her of being in a cult and ordered her back to her hometown in Putian. She lost contact with this friend, but recently received a message from her, who told her that she had been arrested last year and since then had been under ‘house arrest’ by her family.
As to her practise of her faith in Australia, the applicant stated that she only attends online services as the Church does not have a physical address. She stated that when she arrived in Australia in August 2017, she called a Church hotline, the details of which were given to her by members of her church. She stated that she then had to wait a period of about three months in which the Church verified that she is a true member, which included confirming her connections in China. A sister of the Church then came to see her and registered an account for her. She has only attended two to three in-person meetings with brothers and sisters of her church in Australia, which included one occasion when they came to see her at her home, and that all worship is now conducted online. The applicant stated that she usually accesses the Church’s website through a link, though she showed awareness of the English language name of the church’s website. She also gave a plausible description of the activities at online gatherings and indicated that members also undertake work on the Church’s website.
The Tribunal put to the applicant that she had not provided any letters of support from her church or other community members. The applicant responded that the Church in Australia is different from those in the USA and South Korea as it has no physical address as there are limited practitioners in Australia. It is therefore very difficult for her to obtain a reference with a church letterhead. She stated that she asked some of her Church brothers and sisters for letters of support but was told by them that this should not be necessary and was encouraged to tell the truth to the Tribunal. She stated that people who have not had the experiences she claims are unable to ‘replicate’ them in their evidence. The Tribunal questioned why the applicant could not have obtained a letter of support from the Church hotline. She responded that she has not told anyone in Australia her real name, and has instead used a nickname, as this is a principle in her church, even in Australia.
The applicant stated that she fears returning to China because she has seen what has happened to the brothers and sisters from her church and fears the same things will happen to her. She fears she will be imprisoned or tortured or will be forced to sign a confession or statement renouncing her faith. She stated that she had to hide her beliefs in Almighty God when she was in China and stated that freedom of belief and religion is a basic human right. She stated that without her religious beliefs guiding her when she was younger, she may have turned to self-harm.
Country information
The Tribunal discussed the country information with the applicant from the most recent DFAT report for China, including the following information about the Church of Almighty God:[2]
[2] DFAT Country Information Report, People’s Republic of China, 22 December 2021.
Church of Almighty God (COAG) or Eastern Lightning
3.57     The Church of Almighty God (also known as Eastern Lightning) was banned as a xie jiao in November 1995. COAG operates in secret (both to avoid detection and as a general matter of practice) and so little is known about the Church. It receives academic attention from a small number of foreign researchers, most of whom take a sympathetic view of the religion. COAG is also sometimes reported about in the mainstream Western media with articles that quote Christian groups as critical of the Church.
3.58     COAG adherents may believe Jesus returned to earth as ‘Almighty God,’ a woman in the 20th Century. ‘Almighty God’s’ sayings are collected in the book ‘The Word Appears in the Flesh’. COAG members believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will bring salvation from an impending apocalypse. ‘Almighty God’ came to inaugurate the third and final age of humanity, ‘the Age of Kingdom’, which follows ‘the Age of Law’ (the Old Testament) and ‘the Age of Grace’ (of Jesus).
3.59     Little is known about the identity of the central female figure, which may be because of secrecy. Some non-COAG sources claim that she (as an historical figure) never existed at all and the Church denies claims that she is called ‘Yang’ or ‘Deng’ or that she comes from Henan, which is reported in some sources. DFAT understands from sources that different beliefs about her identity may exist amongst Church followers and DFAT is aware of some members who deny that any such figure exists at all. Others may pay little attention to the female Christ figure without denying her existence. Similarly, COAG texts might refer to ‘Almighty God’ using male pronouns. Some adherents believe that a woman came to earth as a new incarnation of Christ and the ‘ordinariness’ of this woman may appeal to some rural female adherents.
3.60     There is no formal liturgy or sacraments in the COAG movement but weekly study meetings do occur. The leadership can change quickly. Members of the Church may deny, or not understand, the hierarchy and leadership of the Church, but DFAT understands that there is a hierarchy. Due to the secrecy that surrounds the Church, a common understanding may not be reached by members and questions about practice could genuinely be answered differently by different adherents. COAG members generally do read The Word Made Flesh, the central religious text of the group. DFAT is not aware of any central registry of members and understands that there are no authoritative estimates of the number of members.
3.61     COAG is controversial. Multiple claims of illegal activity such as homicides and kidnappings have been reported in the media. Members are reportedly forced to break away from families or sell their possessions to give the proceeds to the Church. These claims are disputed by COAG and some members. Other small groups, especially small Protestant groups, are strongly against COAG and many sources that describe the Church come from that origin. Those sources may not be reliable. DFAT understands that some Protestants cooperate with authorities to help them identify COAG activity and arrest members.
3.62     Separate police action against members may be related to membership of the organisation or alleged criminal activity connected to it. According to research conducted by Dui Hua, an American human rights research foundation, court cases involving COAG ‘rarely involve violence’, suggesting that most cases relate to membership of the group rather than alleged violent crime. Dui Hua reported that the majority of the cases coincided with a prophesied apocalypse in 2012 and an incident in which a person was murdered in a McDonald’s restaurant in Shandong in 2014 (in which the Church denies involvement and DFAT understands from sources occurred at the hands of a schismatic group, not members of COAG itself).
3.63     COAG is not well understood but it is clearly illegal in China, and reports of widespread arrests are credible. It is illegal for them to proselytise; those who attempt to proselytise, as well as leaders in the Church, are subject to greater scrutiny by authorities. Inability to practise openly and alleged (but disputed) isolation of members from family and society could reduce exposure to societal discrimination. DFAT is unable to verify whether a former member or a person imprisoned for membership would be placed on an exit control list. DFAT assesses that members face a moderate risk of societal discrimination due to high-profile anti-xie jiao campaigns that are critical of the group.

The applicant did not provide any comments or response to the country information, though the Tribunal also notes the additional country information she has provided, which the Tribunal has also considered.
FINDINGS AND REASONS
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. The Tribunal is cognizant of the view of Beaumont J in Randhawa v MILEA (1994) 124 ALR 265 at para 21, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by suppliants’. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. The Tribunal also notes the comments of Sackville J of the Full Court of the Federal Court in MIMA v Rajalingam (1999) 93 FCR 2020, that ‘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.[3]
[3] See, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J.
The applicant did not attend the interview scheduled by the Department but has explained both in writing and in her evidence before the Tribunal, the reasons why she did not attend the interview. The Tribunal accepts the applicant’s claims that the agent who prepared and lodged her Protection visa application was not a registered agent and did not notify the applicant of the invitation to attend the Departmental interview. I make no adverse findings in relation to the applicant’s failure to attend the Departmental interview. I also note that the applicant gave convincing evidence that the agent who filled out her visa application did not ask her for details of her persecution of a Christian in China, and she did not tell the agent that she is a member of the Church of Almighty God as she did not trust her. I accept this evidence, and note in particular that, the address for service in the applicant’s visa application is associated with a Chinese national who was arrested in 2018 in connection with migration fraud. I therefore make no adverse findings in relation to any potential inconsistencies in the applicant’s claims in her visa application and those given in her oral evidence at the hearing.
Does the applicant have a well-founded fear of persecution if she returns to China?
I accept that the applicant is a Chinese national, and on the basis of the information in her passport, that she is from Fujian Province. Assessment of claims involving the Church of Almighty God is particularly challenging given the illegal nature of the Church in China and the fact that the Church operates in secrecy in China, which means there is a little in the way of objective or verifiable information about its practices and operations in China.[4] DFAT has also advised in its most recent report that due to the church’s secrecy, adherents may differ in their understanding of church practices and questions about such practice could genuinely be answered differently by different adherents.[5] A 2021 analysis of 271 decisions concerning asylum claims by members of the Church of Almighty God by the journal for the Center for Studies on New Religions (CESNUR), noted that that adherents may have different understandings and ways of expressing the belief and practices of the Church.[6] The Tribunal accepts that this may be the case and therefore takes a cautious approach in assessing the applicant’s understanding of the Church’s teachings, and makes allowances for expressions used by the applicant which may not entirely fit with the publicly available information about the Church’s beliefs and practices, as well as allowing for differences in expression which may arise from the interpreter, who is unlikely to be familiar with the Church’s teachings.
[4] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.57; Lightning from the East: Heterodoxy and Christianity in Contemporary China, Emily Dunn, Leiden, Brill, 2015, p. 16.
[5] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.60.
[6] 'Prophecy, Passports, and Persecution: Church of Almighty God Asylum Cases, 2015–2021', Massimo Introvigne, James T. Richardson, and Rosita Šorytė, Journal of CESNUR, 1 May 2021, see p. 23-24.
The applicant gave evidence of joining an Evangelical family church at the age of [age] as a result of a decision by her mother to join this church. The applicant also gave evidence of having grown up in an environment of domestic violence at the hands of her father, which was one of the key reasons why she and her mother turned to Christianity. I found the applicant’s evidence of her introduction to Christianity to be plausible, credible and consistent with the claims she made in her written statement of November 2023. The applicant then gave evidence that roughly half of her congregation moved to worshipping the Church of Almighty God from the second half of 2002. I questioned the applicant about this claim in detail, in particular her claim that two pastors from her family Evangelical church investigated the gospel of Almighty God and acted as advocates for it, ‘shepherding’ members of their congregation to the Church. I questioned the applicant’s evidence in this regard, given Chinese authorities had banned The Church of Almighty God and declared it to be a cult in November 1995.[7] The applicant was able to provide a convincing explanation for how members of her Evangelical church congregation were influenced to join the Church of Almighty God and to accept its gospel, including how pastors undertook their own investigations after being approached by missionaries of the Church. I found the applicant’s explanation to be convincing and consistent with the written claims contained in her November 2023 statement. I also found the applicant’s explanation of how she became convinced of the truth of the gospel of Almighty God to be plausible and convincing. I also note that, despite the Chinese government’s 1995 declaration of the Church as illegal as early, researchers indicate that the Church continues to be the largest Christian new religious movement in China,[8] with Chinese government claiming that the movement had four million members.[9]
[7] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.57.
[8] Inside the Church of Almighty God, Massimo Introvigne, Oxford University Press, 2020.
[9] Ma, Xingrui (2014), cited in 'Prophecy, Passports, and Persecution: Church of Almighty God Asylum Cases, 2015–2021', Massimo Introvigne, James T. Richardson, and Rosita Šorytė, Journal of CESNUR, 1 May 2021.
I found the applicant’s evidence of her attempts at preaching and proselytising in China to be convincing, particularly having regard to the concerns raised with the applicant about she proselytised when the Church had already been labelled a xie jiao by Chinese authorities in 1985. The applicant explained that even though such proselytising involved travelling in a team with members of her church to other towns and villages in Fujian, they did not conduct such preaching in public spaces, but rather selected homes which they considered may be open to hearing their messages. She also explained how such proselytising shifted to preaching to friends or those recommended by friends. The applicant also gave a convincing account of her duties as a ‘receptionist’ for the church, and the lengths she went to, to protect church members and avoid detection from authorities, which included regularly moving meeting venues.
I also make the general observation that while the applicant’s oral evidence was consistent with the information she gave in her written statement of November 2023, she did not give the impression of having rehearsed the contents of the statement. All of the applicant’s responses were delivered without a sense of hesitation and in a matter-of-fact manner. She was also able to provide considerably more detail in relation to aspects of her evidence which the Tribunal questioned, such as how she was able to proselytise in respect of a religion which had been declared by Chinese authorities to be a cult.
The applicant gave a convincing account of her practise of the Church of Almighty God faith in Australia and demonstrated knowledge of websites and other platforms used by the church which I consider to be consistent with the available country information[10] and with the knowledge that would be expected of someone who genuinely continues to practise this faith. While the applicant has not provided any supporting evidence from members of her church community, I accept her argument that the details of her evidence may be difficult for someone who is not a genuine member of the Church of Almighty God to replicate or give an accurate account of. I also found the applicant’s account of contacting the Church hotline, and the three-month vetting process which she endured, to be convincing. I also found the applicant’s evidence regarding the secrecy within the Church of Almighty God, which has carried over into the church’s operations in Australia, to be convincing. The applicant gave evidence that she used a nickname in China and continues to use one in Australia because her community fears there may be spies who operate on behalf of the Chinese government and inform authorities of her identity.
[10] See for instance ‘The Church of Almighty God: The Most Persecuted Religious Movement in China’, Bitter Winter, 25 October 2018.
Overall, the Tribunal found the applicant’s evidence regarding practises and beliefs of the Church of Almighty God to be consistent with available information. For instance, she was able to name the three Ages which practitioners of the Church believe in, as well as give the names which practitioners use to refer to God in each of these Ages. She was able to refer to passages from the Bible which are relevant to the beliefs of the Church of Almighty God without hesitation. These passages and their relevance were also set out in her written statement of October 2023. The applicant showed awareness of the lack of formal liturgy and sacraments within the Church, including the lack of any processes for baptism. She demonstrated awareness of claims by some within the Church of a female Christ figure, as well as some understanding of the origins of this claim and this person’s whereabouts, but consistent with the country information, demonstrated little attention to the human identity of this figure and why such an identity is not relevant to the practise of her faith.[11] The applicant’s use of particular terms and language, such as referring to pastors as having ‘shepherded’ potential believers into the faith, is also consistent with terminology used by the Church.[12] I consider that the applicant demonstrated a complete understanding of the fundamental beliefs of and teachings of the Church of Almighty God, and was able to use her own language to express her understanding, rather than use language which was rehearsed or which parroted the publicly available country information. The Tribunal is satisfied that the applicant’s testimony of her faith in her own language, including her understanding of the inter-connectedness and consequences of these various beliefs, was in no way the product of a rehearsal or a parody of the beliefs and practices of the Church of Almighty God, nor was it the product of research for the purpose of building a claim to protection. The Tribunal accepts on the evidence before it, that the applicant was a practitioner of the Church of Almighty God in China. It accepts that her ‘role’ or ‘duties’ in China included proselytising and acting as a ‘receptionist’ for the Church, including renting meeting venues for gatherings. The Tribunal also accepts that the applicant has continued to practise her faith in the Church in Australia and is active in online gatherings of the Church, and that she would seek to actively practise her faith upon return to China.
[11] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.59; 'Prophecy, Passports, and Persecution: Church of Almighty God Asylum Cases, 2015–2021', Massimo Introvigne, James T. Richardson, and Rosita Šorytė, Journal of CESNUR, 1 May 2021, see p. 24.
[12] ‘The Church of Almighty God: The Most Persecuted Religious Movement in China’, Bitter Winter, 25 October 2018.
I note in passing that at the hearing, I questioned the applicant about information from the [social media] conversation she had with an agent by the name of ‘[Mr A]’, a copy of which she provided to the Tribunal for the purpose of seeking to have her application for review re-opened. The Tribunal noted that although the information was provided only in Mandarin and a certified English translation had not been provided, aspects of the conversation and the explanation provided by the applicant in October 2023, may indicate the applicant did not believe she has strong claims for protection and was considering other visa options to extend her stay in Australia, and that the person assisting her with her application had also expressed views that her claims for protection were without merit. The Tribunal asked the applicant to read out sections of her conversation with [Mr A], which were then translated by the interpreter. The applicant explained to the Tribunal that she was attempting, by any means, to obtain further information from [Mr A], including whether he has a MARA number, for the purpose of potentially lodging a complaint. She therefore suggested that he might help her with her future visa options, but [Mr A] refused to provide her with the information she was seeking. The Tribunal accepts this explanation from the applicant. The Tribunal also accepts the applicant’s evidence that she did not inform [Mr A] that she is a member of the Church of Almighty God. In light of the very strong evidence which the applicant has provided about the practise of her faith, I make no adverse findings about any statements made by the applicant or anyone else in the [social media] conversation provided by the applicant, and accept that such statements do not provide an accurate reflection of the applicant’s views of her claims to protection.
I also note that while the applicant’s claims regarding being a practitioner of the Church of Almighty God were raised for the first time in her written statement provided in October 2023, some six years after lodging the application for the Protection visa, I am satisfied that the applicant raised claims regarding Christianity in her visa application. I am also satisfied that the applicant has provided a satisfactory and convincing explanation for why she did not raise her membership of the Church of Almighty God in her visa application, which included her continued fear of raising this within the Chinese community in Australia on account of her belief that spies may operate within the community and her general distrust of the agent she engaged with. The applicant gave evidence that she intended to raise these claims at the Departmental interview, but did not receive a copy of the invitation because of the conduct of her agent at the time. The applicant provided convincing evidence in this regard. There is no evidence to suggest that the applicant has engaged in activities connected with the Church of Almighty God in Australia for the purpose of strengthening her claims to protection, but rather that she was a genuine practitioner of the Church in China and has sought to continue the genuine practise of her faith here in Australia.
The applicant does not claim that she was harmed in China as a result of the practise of her faith in the Church of Almighty God. She claims that she was able to avoid detention or harassment by authorities by hiding her faith, and she gave evidence of constant efforts which she went to in order to avoid detection after moving to Xiamen. She gave evidence of the detention or imprisonment of other Church members, which in light of my acceptance of the applicant as a genuine practitioner of the Church in China, and in light of the country information which I discuss further below, I find to be credible.
The most recently published DFAT country information report indicates that the Church of Almighty God was banned by the Chinese government in November 1995 as a xie jiao and continues to operate in China in secret in order to avoid detection and as a matter of general practice. The report indicates that the Church of Almighty God remains controversial, is clearly illegal in China, and that reports of widespread arrests of church members are credible.[13] The report also indicates that it is illegal for church members to proselytise, and that church leaders are subject to greater scrutiny by the authorities. A 2018 report from Bitter Winter suggests that the Church of Almighty God has replaced Falun Gong as the main target of religious persecution by Chinese authorities.[14]
[13] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.63.
[14] ‘The Church of Almighty God: The Most Persecuted Religious Movement in China’, Bitter Winter, 25 October 2018.
Under Chinese law, members of a religion declared to be a xie jiao can face prison sentences of up to life imprisonment.[15] Merely being a member of a xie jiao, rather than a leader, can lead to long prison sentences.[16] Bitter Winter reported in 2020 that many Church of Almighty God members were given heavier sentences that in precedent cases.[17] The Church of Almighty God itself reports annually on the number of adherents arrested and sentenced, although it indicates that its statistics are incomplete. The Church’s 2020 Annual Report claims that a minimum of 7,055 members were arrested that year, with 1,098 members sentences under xie jiao laws, with the longest sentence being 15 years.[18] As noted above, DFAT considers the reports of widespread arrests of Church adherents to be credible.
[15] 2020 Report on International Religious Freedom: China (Includes Tibet, Xinjiang, Hong Kong and Macau), US Department of State, 12 May 20221.
[16] Inside the Church of Almighty God, Massimo Introvigne, Oxford University Press, 2020.
[17] ‘Heavier Sentences for Church of Almighty God Members’, Bitter Winter, 3 February 2021.
[18] 2020 Annual Report on the Chinese Government’s Persecution of the Church of Almighty God, The Church of Almighty God, 2 February 2021.
Having accepted the applicant’s evidence, I consider that there is a real chance that the applicant will be persecuted if she returns to China. I consider that the applicant’s faith as a practitioner of the Church of Almighty God, and in particular her proselytising activities, are the essential and significant reasons for the persecution. The Tribunal finds, in accordance with s.5J(1)(a) of the Act, that the applicant has a well-founded fear of being persecuted for reasons of her religion in the foreseeable future on her return to China.
The persecutors in this case are the Government of China. State protection is therefore not available to the applicant, given the agents of the persecution are the authorities. I also find that relocation is not a viable option for the applicant because of the national nature of the persecution she faces on the basis of her religion.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in China as a modification would require her to alter her religious beliefs or conceal her true religious beliefs or cease to be involved in the practise of their faith. The Tribunal is satisfied that a decision by the applicant to not attend meetings of the Church of Almighty God or to attempt to conduct such activities in secrecy, or to constantly move her home and meeting venues as she did previously in China, would amount to a serious modification of behaviour.

There is no evidence to suggest that the applicant has a right to enter and reside in any country other than China, her country of nationality, and the Tribunal finds that she is not excluded from Australia's protection by the operation of s.36(3) of the Act.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Frank Russo
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2672

8 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies