1830712 (Refugee)

[2025] ARTA 854

1830712 (REFUGEE) [2025] ARTA 854 (14 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1830712

Tribunal:General Member M. Tubridy

Date:14 March 2025

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 14 March 2025 at 8:03pm

CATCHWORDS
REFUGEE – protection visa – China – religion – member of underground church – friends detained and tortured and family harassed – political opinion – father imprisoned and applicant harassed and beaten as schoolchild during cultural revolution – political and economic conditions – application prepared by lawyer and applicant unaware of contents – late claims and vague, inconsistent and contradictory evidence in visitor visa application and at hearing – imprisonment, residence and employment history, including as manager and owner – documentation provided with visitor visa application claimed to be fake – physical health conditions and treatment, and mental health – no previous church membership in China and recent membership in Australia and online church in China – social media posts including biblical texts and criticism of government – cursory knowledge of bible of church teachings – documentation provided with visitor visa application shows business ownership and some wealth – unhindered departure – country information – monitoring of online churches and social media – healthcare and social credit systems – request for referral for ministerial consideration not granted – open to applicant to apply – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 417
Migration Regulations 1994 (Cth), Schedule 2

CASE
SZDCD v MIBP [2019] FCA 326

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister (the delegate) on 17 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for protection visa

2. 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.

3. 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.

4. 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).

5. 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.

6. 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

7. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   REASONS AND FINDINGS

   Receiving Country

8. The applicant claims to be a citizen of China. The Nationality Law of the People’s Republic of China 1980 (Article 4) provides that: Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.[1] The applicant has indicated that he was born in China to parents who were both Chinese nationals. He has provided a copy of his People’s Republic of China (PRC) issued passport and this indicates that the applicant was born China (in China’s Liaoning Province), and it presents his nationality as Chinese. I accept that the applicant is a national of China, and I find China to be his receiving country for the purpose of this review.

   [1] Low, C.C. 'Report on Citizenship Law: China and Taiwan', Robert Schuman Centre for Advanced Studies, October 2016, 20190212133821, p.9.

   Protection Claims

   Background: China, Christianity, and criticising the CCP

9. Although China’s governing Chinese Communist Party (CCP) officially promotes atheism,[2] the country nonetheless officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism; but official recognition requires registration as part of one of the ‘patriotic associations’ administered by the CCP.[3] In the case of Protestant Christianity (which in the context of China largely takes in all forms of Christianity other than Catholicism) this means that a given church is required to register with the Three-Self Patriotic Movement or TSPM (‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation taken from 19th century missionary philosophies).[4] The Chinese government has estimated that the TSPM has 23 to 30 million members,[5] out of the total estimated 38 million Christians in China.[6] More broadly it is reported that the size of the Christian population in China is much higher, with some sources estimating that the number Christians in China, or even the number of Protestants alone, exceeds 70 million;[7] and it is estimated that somewhere between 80 to 90 percent of China’s Christians are Protestants (while the remainder are largely Catholics).[8]

   [2] Pew Research, ‘Chinese Communist Party promotes atheism, but many members still partake in religious customs’, 2 September 2023,

   [3] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.49; DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.22, 3.25; DFAT, 'DFAT Country Information Report: China', 3 October 2019, 20191003160550, 3.37, 3.39.

   [4] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.82; DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.22.

   [5] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.28.

   [6] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.64; DFAT, 'DFAT Country Information Report: China', 3 October 2019, 20191003160550, 3.84.

   [7] Hackett, C. & Y. Tong, ‘The Growth of Christianity in China May Have Come to an End’, Socius: Sociological Research for a Dynamic World, 10 January 2025, ; DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.28; USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, p.6.

   [8] Pew Research Center, 'Measuring Religion in China', 30 August 2023, 20230913092014, pp.61-62.

10. Many Protestant Christians in China attend TSPM churches but it is reported that most worship in unofficial ‘house’ churches, and that these ‘underground’ churches may literally be in a house, or can be large gatherings in, for example, commercial office space.[9] The latter kind of ‘house’ churches have sometimes grown to have hundreds or even thousands of congregants, though house churches with thousands of members (known as megachurches) are increasingly less common owing to the manner in which over recent decades the authorities have pressured such larger house churches to join the TSPM; and with those which refuse to do this seeing their membership dwindle as a result of having their leaders detained and their operations disrupted (examples include the Shouwang Church, the Golden Lampstand Church, and the Zion Church).[10] Other house churches, and in particular smaller, house churches, may be tolerated so long as they do not cross any other red-lines such as engaging in contact with foreign Protestant organizations (such contacts are authorized only if managed by the Three-Self Church and approved by the CCP) or criticising the CCP (the Early Rain Covenant Church is an example of a church which has crossed the latter red-line).[11]

    [9] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.33.

    [10] Hernández, J.C. 'As China Cracks Down on Churches, Christians Declare ‘We Will Not Forfeit Our Faith’', Javier C. New York Times, The, 25 December 2018, 20181228140254Introvigne, M. ‘Shouwang Church: The Rise and Fall of Beijing’s Largest Megachurch’, 30 March 2019, ; 'Police in China's Shanxi Detain Nine Protestant House Church Members', Radio Free Asia (RFA), 09 August 2021, 20210813125332; Zhipeng, W. 'Beijing Shouwang Church: The House Church That Refuses to Die', Bitter Winter, 14 February 2023, 20231006182546; China Aid, 2023 Annual Persecution Report, March 2024, 2024070212491, pp.29, 32, 43-44, .

    [11] Introvigne, M. ‘Is There a Selective Persecution of House Churches in China?’, Bitter Winter, 31 January 2019, ; 'China Detains 17 Protestant Christians Who Prayed For Tiananmen Massacre Victims', Radio Free Asia (RFA), 05 June 2018, CXBB8A1DA34734; 'No Reports on Chengdu Church Crackdown', China Digital Times (CDT), 10 December 2018, CXBB8A1DA40198; China Aid, 2023 Annual Persecution Report, March 2024, 2024070212491, pp.49-55.

11. COVID-19 restrictions led many house churches to move their services online, which increased the size of their congregations.[12] In March 2022 a new media law went into effect that allows only religious groups with government approval to share content over the internet, and which has seen the online operations of some underground churches shut down (the Early Rain Covenant Church and also the Shenzhen Trinity Gospel Harvest Church have notably seen some of their leaders arrested),[13] and in one instance it is reported that authorities in Guangdong Province forcibly entered the home of a member of the unregistered Fengsheng Gospel Church where several congregants were watching online Christian programming, charged those gathered with holding an “illegal assembly,” and fined each person present RMB 200 ($28).[14] Even so, some house churches have continue to operating online without experiencing problems, with some decreasing the size of their gatherings or screening participants in an effort to avoid detection, though it is broadly apparent that the authorities are capable of monitoring such gatherings without entering as a participant, and even technical measures such as employing a virtual private network (VPN) are not enough to successfully avoid monitoring.[15]

    [12] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.83,

    [13] Persecution.org, ‘Big Brother China Won’t Silence the Underground Church’, 23 May 2022, ; ChinaAid, 'ChinaAid's Annual Persecution Report 2022', 14 February 2023, 20230313122518, p.27.

    [14] USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, p.25.

    [15] Persecution.org, ‘Big Brother China Won’t Silence the Underground Church’, 23 May 2022, ; Zeller, K. ‘Chinese government monitors underground churches’, Mission Network News, 8 September 2022, ; Lim, F.K.G. ‘Social media, religion and shifting boundaries in globalizing China’, Global Media and China, Vol. 5(3), 2020,

12. There are also some fringe Christian movements which China’s government classifies as being ‘xie jiao’ (which is commonly translated as ‘evil cult’, but which is reportedly closer in meaning to ‘heterodox teachings’).[16] These include groups like The Church of Almighty God (COAG or CAG, and also known as Eastern Lightning; and which is known for preaching that a “female Christ” who will reign over a new age in which humankind will be judged and only believers will survive, and for calling on members to slay the CCP which they call the ‘great Red Dragon’),[17] and also The Shouters (a pejorative term derived from this group’s loud and energetic worship practices).[18] Others include the Society of Disciples (Mentu Hui), Full Scope Church (Quan Fanwei Jiaohui), Spirit Sect, New Testament Church, Three Grades of Servants (San Ban Puren), Association of Disciples, Established King Church, Family Federation for World Peace and Unification (Unification Church), Family of Love, and South China Church.[19] DFAT has reported that Membership in a xie jiao is illegal in China, and the profile of a person who is a member – whether they are a leader or an ordinary believer – was not relevant in 2023 to the chances of arrest once detected. Even low-profile worshippers in a xie jiao were subject to arrest to in 2023.[20]

    [16] Zoccatelli, P.L. 'Anti-cult campaigns in China and the case of the Church of Almighty God. An introduction', CESNUR, January 2018, CIS7B8394110606, p.4.

    [17] Dui Hua Foundation, 'The Persecution of Unorthodox Religious Groups in China', 29 March 2022, 20220407134713, p.12; DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.101-3.102.

    [18] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.118-3.112; Dui Hua Foundation, 'The Persecution of Unorthodox Religious Groups in China', 29 March 2022, 20220407134713, pp.24-25.

    [19] USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, p.10.

    [20] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.99.

13. Regardless of a churches status it is illegal to proselytise, and those who attempt to, are subject to greater scrutiny by authorities and face arrest;[21] The Early Rain Covenant Church is also known for having crossed this a red-line by engaging in street evangelism (in addition to being politically outspoken),[22] but street evangelism in itself is enough to attract adverse attention (a prominent travelling street evangelist, Chen Wensheng, has reportedly been arrested and seven times in this regard, and has sometimes been sentenced to several weeks of imprisonment).[23] The unauthorised selling of Bibles can also attract adverse attention.[24] House church leaders who engage in online evangelism have also been detained, but reports of this typically indicate that the attention of the authorities was drawn to the person in question by wider activities such as operating meetings and drawing in large numbers of followers; though even low profile figures may encounter censorship of their posts or even having their social media account banned.[25]

    [21] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.86.

    [22] 'More than 20 Christians detained for street evangelism', China Aid Association, 27 October 2018, CXBB8A1DA37579; 'Chengdu: raid during an Early Rain Church celebration, four arrests', pime asia news, 04 September 2024, 20240910104134.

    [23] USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, p.19; China Aid, ‘2023 Annual Persecution Report’, March 2024, 2024070212491, pp.36, 67-69; ChinaAid, 'ChinaAid's Annual Persecution Report 2022', 14 February 2023, 20230313122518, pp.28-29; 'Street Evangelist Chen Wensheng Sentenced Again', Bitter Winter, 24 June 2024, 20240627131745; 'Chen Wensheng released from 15 day detention', Yu Bing, China Aid Association, 28 March 2022, 20220411092100.

    [24] 'Chinese Christian jailed for distributing Bibles ‘illegally’', UCA News (UCAN), 29 April 2024, 20240507150712; 'China jails Christians for selling Bible players', UCA News (UCAN), 04 August 2021, 20210805092007.

    [25] China Aid, 2023 Annual Persecution Report, March 2024, 2024070212491, pp.36; ChinaAid, 'ChinaAid's Annual Persecution Report 2022', 14 February 2023, 20230313122518, p.36.

14. Even so, large numbers of Chinese citizens have continued to find their way to the Christian faith, and under President Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, carried out through registered, state sanctioned religious organisations, has aimed to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. Sinicisation can involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions.[26] Since about 2015, and to some degree earlier, there have been reports of the removal of crosses on buildings[27] and, in some churches, sacred images such as those of the Virgin Mary have been replaced with portraits of Xi Jinping.[28] In-country sources told DFAT in 2023 that official church services were required to begin with patriotic messages to ‘love the Party, love the homeland and love socialism’. While CCP approved Bibles were available for personal use, all content contradicting socialism was censored. Those who sold or distributed non-CCP approved bibles without authorisation have faced arrest and prolonged detention. Online Bible references were also censored and often, sacred images and representations have been replaced with portraits of Xi Jinping.[29] In 2021, the Government of China significantly increased its ongoing efforts to force unregistered churches to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of pastors to rules set out by the TSPM.[30] This noted, it has also been observed that the party-state does not rule by repression alone and that the authorities often seek to persuade rather than force such churches to align with the TPSM.[31]

    [26] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.29.

    [27] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.30.

    [28] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.29.

    [29] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.65.

    [30] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.83.

    [31] Koesel, K.J. et al, 'Official Protestantism in China', Review of Religion and Chinese Society, 25 September 2019, 20190925180628, p.86.

1. It should also be noted that it is reported that TSPM administrators have limited power to enforce policies on grassroots congregations, and that the lower one goes in the Protestant leadership hierarchy of the TSPM, the more leaders share values and perspectives similar to those of the house church leaders. Even so, on major holidays or other key events, local authorities may compel not only TSPM leaders but also prominent church pastors to publicly demonstrate their loyalty and gratitude to the party-state by dutifully parroting communist declarations, such as one leader did by announcing at a new church opening that Christians should “study the spirit of the party Congress”. It is reported that congregants are broadly aware that these are merely public performances undertaken to meet the outward demands of party-state officials in spotlighted events so that the church is otherwise mostly let alone to go about their business but, even so, some house church adherents do see this as evidence that the TSPM practises a false form of Christianity.[32]

   [32] Vala, C.T. ‘The Three-Self Patriotic Movement: Divergent Perspectives and Grassroots Realities’, ChianSource Quarterly, 7 September 2020,

2. It should also be noted, many protestant churches which are unregistered with the TSPM, and which thus fall into the category of being known as house churches or underground churches, operate in a manner which is not dissimilar to the TSPM churches. For, while some ‘underground’ house churches are small groups which meet discreetly in private homes, it is also the case that others are large gatherings (sometimes of a hundred persons or more) who meet in rented office space, and whose place of worship is signed, and whose services involve sermons and the music and the singing of hymns, and with local police being aware of but tolerant toward such unregistered house church activity so long as no red-lines are crossed, such as talking about politics during sermons, or growing in size beyond whatever limits the local authorities might find concerning.[33] Private forums operating outside of officially sanctioned religious organisations (including what are known as ‘house’, ‘family’ and ‘underground’ churches) have come under heavy pressure to align their activities with those of the CCP. In-country sources told DFAT in 2023 that unregistered religious organisations had begun to pragmatically include pro-CCP messaging in their sermons to come into line with new regulations and ensure their ongoing survival, and noted that those who failed to cooperate with authorities had been closed down.[34]

   [33] Tyler, M. ‘What It’s Really Like for China’s Urban Christians’, Gospel Coalition, 2 November 2016, ; Reny, M.E. 'Compliant Defiance: Informality and Survival Among Protestant House Churches in China', Journal of Contemporary China, 29 January 2018, CIS7B839419590, pp.474, 482-3; Fenggang, Y. J.E.E. Pettit, ‘Chapter 2 The Gray Market: Semi-Legal Religions’, in: Atlas of Religion in China: Social and Geographical Contexts, 17 Aug 2018, pp.54-55, ; Pittman, J. ‘Red Lines’, China Source, 21 December 2018, ; Canadian Immigration & Refugee Board, ‘China: Christian House Churches, including smaller congregations that meet in people's homes; activities and beliefs; treatment of members by authorities, including in Guangdong, Fujian, and Hebei Provinces (2017-October 2019), CHN106374.E, ; DFAT, ‘DFAT Country Information Report: China, 22 December 2021, 20211222100210, 3.33; Pew Research Center, 'Measuring Religion in China', 30 August 2023, 20230913092014; Eugene, ‘China’s Underground Church is Growing Bolder’, Back to Jerusalem, 14 Mary 2024,

   [34] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.59.

3. Even so, DFAT reported of 2023 that members of unregistered churches were unlikely to face arrest or detention, and in most instances were warned verbally by authorities to only worship at registered churches;[35] and I note that DFAT’s assessment of the situation in this regard is consistent with what is broadly reflected about such matters in the reporting of other credible and disinterested observers, and even in the reporting of Christian advocacy groups like ChinaAid and Bitter Winter.[36]

   [35] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.84.

   [36] Johnson, I. ‘China Is Reversing Its Crackdown on Some Religions, but Not All’, CFR, 14 May 2024, ; USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, pp.24-26; Canada IRB, 'China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)', 10 May 2022, 20220602123639.

4. DFAT assesses that Christians in China face a moderate risk of official discrimination when attempting to practice their faith, in accordance with established religious doctrine, when it conflicts with CCP approved practice. DFAT assesses Christians face a low risk of official discrimination on the basis of their religion when accessing public and social services, housing, government employment and education. DFAT assesses official discrimination would likely relate to an individual’s activism or failure to comply with CCP directives, rather than anything specifically related to their Christian faith, and DFAT is not aware of violence perpetrated against Christians because of their religion.[37] This noted, some Christian advocacy groups like ChinaAid have alleged that there have been some instances of certain church leaders being subjected to torture while under interrogation.[38] DFAT assesses that Protestant Christians face a low risk of official discrimination on the basis of their religion alone, however leaders of non-TPSM affiliated, unregistered Protestant churches (pastors and congregation elders) face a moderate risk of official discrimination on the basis of religion in the form of harassment and possible detention for religious-related offences.[39] DFAT assess that, overall, an individual’s ability to practise religion is dependent on whether they worship in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues.[40]

   [37] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.66.

   [38] USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, pp.14-15.

   [39] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.86.

   [40] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.61.

5. In a manner not inconsistent with DFAT’s assessment, the UK Home office has assessed that Christians, whether they belong to a state-registered church or not, are in general unlikely to be at risk of persecution or serious harm on the basis of their faith alone. In state-registered churches, dissident bishops or prominent Christians who challenge, or who are perceived to challenge, public order and the legal conditions under which churches and leaders may operate, may be at risk of persecution or serious harm. Christians who worship in unregistered churches or as part of an illegal cult and conduct themselves in such a way as to attract the local authorities’ attention to them, or their political, social or cultural views, may face a real risk of persecution or serious harm; but each case must be considered on its facts, and the evidence is that the many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do and, in general, any adverse treatment of Christian communities by the Chinese authorities is confined to closing down church buildings where planning permission has not been obtained for use as a church, and/or preventing or interrupting unauthorised public worship or demonstrations.[41]

   [41] UK Home Office, 'Country Policy and Information Note China: Christians', 4 April 2024, 20240405142424

6. DFAT reports that sensitive issues include, but are not limited to: commentary on political issues and events (including the policy direction of the CCP and nation, as well as anniversaries like the 4 June Tiananmen Square massacre), economic issues, health (including COVID-19 origins and the handling of the outbreak); land and property rights, environmental issues, labour rights, religious or ethnic issues (including Chinggis Khan, the Dalai Lama and so-called separatist movements linked to ‘East Turkestan’), other human rights issues, and the legitimacy of central authorities and the CCP. The sensitive nature of a topic may change quickly.[42] DFAT has opined that: Tolerance for private criticism of the Government of China or CCP, even if only among friends and family, has reduced significantly since 2019 because potential ‘red lines’ had become less clear. In June 2020 the government intensified its national security drive by announcing rewards of up to and above CNY100,000 (AUD21,000) for tip-offs about anyone ‘endangering national security’, and in August 2023 China’s Ministry of State Security encouraged citizens to actively participate in ‘counter-espionage work'.[43] In-country sources told DFAT in 2023 that local police used electronic surveillance, including WeChat, to monitor the actions of unregistered civil society organisations, listen in on conversations and stop activists from engaging with foreigners, including through the use of pre-emptive detention.[44]

   [42] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.128.

   [43] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.130.

   [44] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.137.

7. DFAT has assessed that those who express political views that challenge the authority or interests of the CCP can face severe penalties;[45] and this is particularly so for such persons as high-profile activists, human rights defenders and their lawyers,[46] and those who lead protests over land, local corruption, labour or any other matter critical of the government or CCP,[47] and also journalists and editors reporting on sensitive issues,[48] and also those who use an internet platform to mobilise others in relation to politically, or otherwise sensitive issues.[49] Even so the majority of social media users in China are able to use platforms without incident, although they do so with the acknowledgement they are being monitored and are aware of the need to self-censor, but small-scale discussion of political, or otherwise sensitive issues and even criticism online, is generally tolerated and although views may be censored, those posting them are unlikely to come to experience retaliation by the authorities.[50]

   5 January 2018 protection visa application

   [45] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.131.

   [46] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.142.

   [47] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.156.

   [48] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.160.

   [49] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.167.

   [50] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.167.

8. The applicant arrived in Australia [in] November 2017 (travelling on a visitor visa which had been granted to him on 13 November 2017 and which was valid until 19 February 2018). On 5 January 2018 a protection visa application was lodged in his name with the Department. The January 2018 protection visa application was lodged electronically and in a manner which gave no indication that anyone other than the applicant was involved in making the application (by way of [username]), or that the applicant had received any assistance in this regard (whether from an interpreter or anyone else) even though the application was submitted with responses in English, whereas the applicant claimed to understand on Mandarin Chinese.

9. In response to the application form’s request for an explanation of why he (the applicant) had left his country, the following was submitted: I am a devout underground Christian. Through the Lord’s teachings, I felt happy and made many friends. I felt so lucky to become a Christian. Jesus Christ taught me a lot. However, there is no freedom of religious belief in China, and the CCP [Chinese Communist Party] combats all underground religious belief. Many of my church friends were caught during an underground gathering. They were cruelly tortured and insulted in the detention centre. The police wanted to arrest me because they know I am a devout underground Christian. They continually came to my home and harassed my family. For my safety, I escaped China to Australia with my friends help. In Australia I can believe in Jesus Christ without any restraint. In response to the question of whether he himself had experienced harm in his country, was submitted the answer: No.

10. In response to the protection visa application form’s request for an explanation of why he (the applicant) had been unable to find safety by moving to another part of his country, the following was submitted: No, because China is one-party dictatorship, it forbids the existence of underground Christians. There is no freedom of religious belief in China. No matter where I go, I will be harmed by the government. Asked what he feared this harm would be, the following was submitted: If I return to China, I will be harmed by the government just like other underground Christians. I am regarded as heretic by the government. They will arrest and insult me. I will definitely be arrested by the police. They will force me to give up my belief and torture me cruelly in the prison. The local government will not protect me. Because China is one-party dictatorship, it requires total obedience. There is no freedom of religious belief in China. Other than a copy of the applicant’s passport, no supporting evidence was attached to establish any of the claims submitted.

11. The protection visa application form asked the applicant to provide his previous address details, including any places of temporary accommodation. In response, the applicant was listed as currently residing since November 2017 at an address in [Street] in [Suburb 1] NSW. For the period from the applicant’s birth until November 2017 (that is, until his departure for Australia) the applicant was listed as residing in Ganjingzi in Dalian in Liaoning Province. I note that Ganjingzi is a residential area and the largest district on the fringe of Dalian City, which is an urban area of over six million people on China’s north-east coast; and which is notable for being a shipping and manufacturing centre.[51] No details were listed as to the street, or streets, where the applicant had resided in this regard.

    [51] Yang, J. et al, ‘Spatiotemporal variation characteristics of green space ecosystem service value at urban fringes: A case study on Ganjingzi District in Dalian, China’, Science of The Total Environment, 15 October 2018, ; Business Traveller, ‘Inside China...Dalian: Port of plenty’, 31 May 2013, ; City Population, ‘Dàlián Shì: Sub-provincial City in Liáoníng’,

12. The protection visa application form asked the applicant to provide his education history. In response, the applicant was listed as having completed primary school at [Primary School] (in Zhongshan in Dalian) between [Year] and [Year], and as having completed middle school at [Middle School] between [Year] and [Year] (in Ganjingzi). This would mean that the applicant did not begin primary school until he was 10 years of age, such that he did not complete middle school until he was 18 years-of-age. This is understandable given the period in question. Between 1966 and 1976 China experienced 10 years of large-scale political upheaval as a result of the Cultural Revolution (during which CCP Chairman Mao Zedong called upon Chinese youth to purge the anti-revolutionary elements of the government, the party, and society more generally), and during the first two to three years of this all schools in urban China were closed, and primary and junior high schools only began to re-open gradually thereafter.[52]

    [52] Meng, X. & G. Guochang, ‘The long shadow of a large scale education interruption: The intergenerational effect’, Labour Economics, Volume 71, August 2021,

13. The protection visa application form asked the applicant to provide his employment history; including all paid and unpaid employment (and with any gaps in employment to be listed as unemployment). In response, the applicant was listed as being unemployed from his birth until [Year] (at which time, as noted above, he was said to have completed his schooling) during which time he was financially supported by his parents. He was then listed as having been employed from [Year] until March 2000 as a worker at a Dalian [factory] in Ganjingzi (in Dalian). He was then listed as having been in private employment as a ‘free-lancer’ in Dalian in Ganjingzi from April 2000 until his departure for Australia in November 2017; but no details were listed as to what kind of work was involved. The applicant was then listed as having been unemployed from November 2017 (that is from the time he departed China for Australia) up to the present (January 2018) and that during this time he was financially supported by savings.

14. The protection visa application form also asked the applicant to provide details about any family members or relatives he had in Australia or overseas. In response, the applicant was listed as having no family members whatsoever (though as noted above, responses were also provided which presented the applicant as claiming that he had left China because the authorities had come to his home and harassed his family because they knew he was a devout underground Christian). His relationship status was listed as: Divorced.

15. The January 2018 protection visa application listed a post office box and also an email address (the is being [email address 1] ; hereafter [email address 1) for correspondence with the applicant, and on 25 January 2018 the Department emailed the applicant (via [the email address 1]) an acknowledgement that his protection visa application had been received. This attached an information sheet which advised the applicant that the Department might make a decision without seeking any additional information from him, and so he should provide any further information he considered relevant, and that he could do so online via the same account via which his protection visa application had been lodged. Nothing was received from the applicant in response to this.

16. On 5 February 2018 the Department emailed the applicant (via [email address 1]) an acknowledgement that his protection visa application had been found to be valid, but that he was required to present in person at the Department’s Lee Street office in Sydney on 23 March 2018 to provide his personal identifiers (that is, to be photographed and fingerprinted) and if he did not do this his application would could not be considered valid, and his bridging visa would cease within 35 days. This the applicant did respond to. A Departmental administrative document dated 23 March 2018 (‘Identification Test: protection Visa Applicants’) confirms that the applicant presented at the Department’s Sydney office as required to be photographed and fingerprinted. This done, the applicant’s January 2018 protection visa application continued to be considered valid by the Department, and as a consequence of this the associated bridging visa issued to the applicant remained valid also.

    17 October 2018 delegate’s decision

1. On 24 September 2018 the Department emailed the applicant (via [email address 1]) an invitation to attend an interview at the Department’s Lee Street office in Sydney on 17 October 2018 to discuss his visa application. The applicant was advised that if he did not attend the interview his application would be decided on the basis of the information he had already provided. The applicant did not attend this interview.

2. On 17 October 2018 the delegate refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant would face a real chance of persecution, or a real risk of significant harm, if he were to return to China. The delegate considered the following to be significant: the applicant had been able to depart from China when he travelled to Australia; and: he had not had a leadership role in his church; and: in May 2018 the US Department of State (USDOS) had reported that China’s State Administration of Religious Affairs (SARA) had indicated on its website that family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government.[53] The delegate noted but did not expressly engage with the applicant’s claim that, not only was he a devout underground Christian, but he had been a member of church which had seen members detained by the authorities, and with police subsequently harassing his family and wanting to arrest him also.

   [53] USDOS, ‘China (Includes Tibet, Hong Kong, And Macau) 2017 International Religious Freedom Report’, 29 May 2018, OGD95BE927626, p.7.

3. On 17 October 2018 a copy of the delegate’s decision was emailed to the applicant (via [email address 1]) under a notification that his application for a protection visa had been refused, and that his bridging visa would cease in 35 calendar days if he did not apply for review of the decision with the Tribunal.

   19 October 2018 application for review

4. On 19 October 2018 (two days after the delegate’s decision and the Department’s emailed notification about this) an application was lodged with the Tribunal in the applicant’s name for review of the delegate’s decision to refuse him a protection visa. This application attached a copy of the delegate’s decision of 17 October 2018 and the associated refusal notification. It was submitted that the applicant’s contact email address remained [email address 1], and that his telephone number remained [telephone number 1], and that his residential address (and now also his address for receiving correspondence) was in [Suburb 1] NSW. The application for review gave no indication that the applicant was employing a representative or an authorised recipient.

5. On 22 October 2018 the Tribunal emailed the applicant (via [email address 1]) and advised him that his application for review had been received, and that the Tribunal had requested that the Department provide it with all the documents and files which they considered to be relevant to his application. The Tribunal also advised the applicant of the importance of keeping the Tribunal updated as to any changes in his contact details or his personal circumstances; and that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. However, nothing was received from the applicant in terms of further material or written arguments for the Tribunal to consider with respect to the Department’s decision to refuse the applicant a protection visa, nor would it be until 2024, some five years later.

6. On 28 November 2018 a reply was received in the applicant’s name from [email address 1], and this presented as being from the applicant and it conveyed the applicant’s thanks for the Tribunal’s processing of his application, and that he (the applicant) wished to advise the Tribunal that he had made an error in selecting the wrong gender for himself on the Tribunal’s application form. On 30 April 2019 the Tribunal received an email from [email address 1] in the applicant’s name and this requested a letter which confirmed he had a matter before the Tribunal (for the purpose of maintaining access to Australia’s Medicare universal health insurance scheme, and hereafter referred to as a ‘Medicare letter’), and such a letter was emailed by the Tribunal to [email address 1] on 1 May 2019.

7. On 17 September 2021 the Tribunal received an email in the applicant’s name from a new email address: [email address 2]. In this, the sender submitted that he did not know his case number, but his date of birth was [Month, Year], and he wished to advise he had a new residential and postal address in [Suburb 2] NSW. A new mobile telephone number was also provided: [telephone number 2]. The boxes were ticked for indicating that the applicant wished to withdraw his previous authorisation of his authorised recipient and representative (though as noted above, no such authorisation had ever been given). The email attached a scanned image of the biodata page from the applicant’s passport.

8. On 21 September 2021 an officer of the Tribunal telephoned the applicant to confirm his new contact details. The applicant confirmed his new [Suburb 2] email address but clarified that his new email address was: [email address 3]. However, a case note of 28 September 2021 records that the applicant (with the assistance of a friend) then telephoned the Tribunal to ask if the Tribunal had received his change of contact details form (that is, the form which gave his email address as [email address 2]), and to ask for a Medicare letter to be issued to him. Such a letter was then emailed by the Tribunal that same day 28 September 2021 to the  [email address 2], and this remained the listed contact email address for the applicant until the weeks which followed his February 2024 hearing.

9. Nothing further was received over the next year and eight months until 30 May 2023 when the Tribunal received an email in the applicant’s name from [email address 2] which requested a further Medicare letter (and which the Tribunal responded to by way of issuing such a letter to the applicant via [email address 2]). I note, with regard to all of this, that the Tribunal never received any indication from the applicant throughout the above periods which would indicate that he was not receiving the Medicare letters which were being sent to him via first [email address 1], and later [email address 2]. On 12 December 2023 the Tribunal emailed the applicant (via [email address 2]) and advised him that his file was now being prepared to be given to a Tribunal Member and that, to assist the Tribunal to conduct the review, he was asked to complete a pre-hearing information form and to return this to the Tribunal within 7 days. Nothing was received from the applicant in this regard.

   27 February 2024 Tribunal hearing

10. Thus, and following the lodgement of his January 2018 protection visa application, the applicant had provided no further information or evidence to either the Department or the Tribunal about his protection claims, nor had he given any indication that he had any interest in being heard about his claims. Indeed, the manner in which this had all unfolded suggested that the applicant’s only interest had been in maintaining a bridging visa to allow him to remain in Australia, and to maintain access to Australia’s Medicare universal health insurance scheme. All of this raised the possibility that the applicant’s protection claims had instead been contrived for this purpose and were untrue, and that the applicant might have no reason to fear return to China.

11. On 6 February 2024 the Tribunal emailed the applicant at [email address 2] and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal on 27 February 2024 to give evidence and present arguments relating to the issues arising in his case. The Tribunal requested that the applicant complete and return an enclosed ‘Response to hearing invitation’ form within seven days, and to provide all documents he intended to rely on to support his case by 20 February 2024. The Tribunal explained to the applicant that, if he did not appear at the hearing, the Tribunal might make a decision on the review without taking any further action to enable him to appear before the Tribunal, and it was also possible that the Tribunal might dismiss the application without any further consideration of the information before it.

12. On 20 February 2024 the Tribunal received an email in the applicant’s name from [email address 2] and this attached a completed ‘Response to hearing invitation’ form which presented as being signed by the applicant. This indicated that the applicant would participate in the hearing, and that there were no health issues which would prevent him from doing this. In response to the question of whether he intended to rely on any documentary evidence at the hearing (which should be provided at least seven days before the hearing), he indicated that he did not, and neither did he propose any witnesses.

13. On 27 February 2024 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was asked to take an oath or an affirmation. He elected to take an oath, and he was asked if he promised before almighty god that the evidence, he gave today would be true. He responded that he was a Christian and all that he said was truth. The Tribunal then confirmed with the applicant that he understood the interpreter. The Tribunal then explained to the applicant that when he spoke during the hearing, he should pause every few seconds, just as the Tribunal Member was doing, to enable the interpreter to accurately interpret what was being said. It was explained that if he had any difficulty understanding the interpreter, or the Tribunal, he should let the Tribunal know.

14. It was then explained to the applicant that the Tribunal had to decide whether he met the criteria for the grant of a protection visa either by way of being a refugee – that is, whether he was a person with well-founded fear of persecution in his country for reason of his race, religion, nationality, membership of a particular social group, or political opinion – or whether more broadly there were substantial grounds for believing that if he was removed from Australia to his country there was a real risk he would suffer significant harm. I explained that to decide this I would be looking at the protection visa application which he had lodged with the Department, and also the Department file for this which was also before me along with the Department’s decision which he had provided, and I would also have regard to everything he wished to tell me at the hearing and any further information he might wish to provide to the Tribunal. It was explained to the applicant that the purpose of the hearing was for him to give evidence in support of his case, and also for the Tribunal to ask questions that would assist the Tribunal in deciding his case.

15. Asked if he had any questions about any of this before the hearing began, the applicant said he did not but that he would answer whatever questions the Tribunal had. I informed the applicant that I would begin by asking him some background questions about who he was and where he had been, and that once these were completed, I would ask him to answer the broader question of why he did not want to return to his country.

16. In response to the Tribunal’s questions, and as per the evidence presented in his January 2018 protection visa application, the applicant gave his name and date and place of birth, and he indicated that he was a citizen of China. However, when asked where he resided after he was born, the applicant’s response was that he had resided ‘everywhere’, and that after he was born, he had committed a crime and been sent to prison, and after his release he had had nowhere to go, and he had been homeless. Asked for the address where he resided as a child, he said this was: [Address, Street 1], in Ganjingzi in Dalian city, where he had lived with his biological mother and stepfather. He said he resided there until he was [Age] years of age (that is, until around April 1983), when he was sent to jail, and that he then resided in other places, though the address on his Chinese identity document (his resident identity card) still listed his childhood address.

17. I note, with regard to the above, that China’s resident identity cards (RICs) display such details as the cardholder's photograph, name, date of birth, and a unique 18-digit ID number and coloured photograph. Such cards are issued by the Public Security Bureau (PSB; the police) with validity periods ranging from 5 years and upwards (depending on the applicant’s age) on the basis of the applicant’s household registration (hukou). Owing to the manner in which many Chinese migrate internally without having their permanent residence status altered on their household registration (either out of choice, or because of the difficulties that can be involved) a hukou (and consequently the residential address on their RIC also) often reflects an individual’s place of birth, or even their parents’ place of birth, rather than their current place of residence; and unless the person involved has married and then successfully applied to be registered on their spouse’s family’s hukou, or unless they have successfully applied to be issued a new hukou after coming to own their own household separate from that of their parents, or unless both of their parents have died such that they have become the household head, a person will typically be registered on the hukou headed by their parent or even grandparent. The hukou is the foundation document by which many other Chinese identity documents are obtained, including a Chinese a passport, a driving licence, and the ability to open a bank account.[54]

    [54] DFAT, ‘DFAT Country Report: China, 3 March 2015, CISEC96CF1643, 5.18-5.21. DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 5.40-5.42; 2.23-2.24; Canada IRB, ‘China: Whether a new Resident Identity Card (RIC) is issued at the same time as a new hukou to reflect a change of address when a person moves out; procedures for updating a RIC with a change of address; information that applies to Hebei Province (2014-July 2016)’, 17 August 2016, CHN105598.E; Slater, M. ‘China ID Card - An Introduction’, China Check Up, 31 October 2018, ; Canada IRB, ‘China: The hukou [residential registration] document, including appearance, content, fraud, pathways for obtaining, requirements, and procedures; hukou policy, including national regulations and local policies; circumstances when a hukou might be cancelled; the effect of divorce on the hukou, particularly if the head of the household has divorced, relocated and remarried, and whether a new head of the household is appointed (2010–July 2022)’, 20 September 2022, CHN200599.E, ; Jianguo, L. & X. Weihua, ‘Chapter Eight. An Analysis of Rural Women’s Entitlements to Land and Other Property’, in: Mendes, E.P & S. Srighanthan (eds), Confronting Discrimination and Inequality in China, University of Ottawa Press, 2009,

18. At the February 2024 hearing, I asked the applicant what Chinese identity documents he had in Australia. The applicant said that he had his passport and his Chinese identity document (his RIC), and that he would have his lawyer send these to the Tribunal if the Tribunal would provide him with an address, and that he had other documents in China which he could have his wife send to him if need be. The applicant was informed that any documents he wished to provide could be sent as scanned images to the Tribunal, and that he should use the same email address as he had employed to send his response to the Tribunal confirming he would attend the hearing.

19. I then asked the applicant to confirm that he had just stated that he had a lawyer. The applicant said he did. Asked who this was, the applicant said his lawyer’s name was [Mr A – English nickname]. Asked if this person had a surname, the applicant said he was not sure. Asked whether this person was solicitor, the applicant asked what was meant by this, and I explained that I was asking whether this person was a qualified legal practitioner. The applicant said that this person was ‘licenced’. I asked the applicant if this person ([Mr A]) had assisted him with lodging his protection visa application. The applicant said he had not. The applicant said that [Mr A] had taken over his (the applicant’s) case from another lawyer, and that because of this he (the applicant) had no idea what had happened before (that is to say, that the applicant was claiming he had no knowledge of what information had been provided in his January 2018 protection visa application). Asked for the name of the previous lawyer, the applicant said he had no idea because the previous lawyer had been suspended and was not licenced, and so he (the applicant) had accessed his (the applicant’s) information and given it to his current lawyer. It was put to the applicant that he must be able to remember his previous lawyer’s name. The applicant insisted that he could not remember because it had all happened years ago, and he conveyed that, once he had located his information, he would have his current solicitor send this information to the Tribunal.

20. I now asked the applicant if anyone had assisted him with lodging his January 2018 protection visa application with the Department. The applicant said this was all done by his previous solicitor and he had no clue about what information had been provided in this regard. Asked why he did not know this, the applicant said that this was because he just gave everything to the solicitor and there was no need for him (the applicant) to know anything, he just trusted them. At this point the Tribunal explained to the applicant that, should he not be aware already, he had an obligation to always ensure that all of the information which he provided was true and accurate. I underlined that this was a very significant matter. I explained to the applicant that, if all of this really was the case (that is, if he really was unaware of what had been provided in his January 2018 protection visa application), then he needed to look over that application as soon as possible and then provide the Tribunal with an indication of whether any of the information provided in that application was untrue.

21. I asked the applicant whether he had a copy of his January 2018 protection visa application. The applicant submitted that the Tribunal should have a look at what documents were transferred from his previous to his current solicitor, and then let him know what documents the Tribunal would need and he could re-send these to the Tribunal later on. I explained to the applicant that I was asking him whether he had a copy of the protection visa application which was lodged with the Department in his name. I explained that I was asking him this because I wanted to know whether he was able to look that application over. The applicant said that he had forgotten if he had it, and even if he had had it, he may have lost it now. I conveyed to the applicant that I would make arrangements to have a copy of his January 2018 protection visa application released to him.

22. I note, before proceeding further, that the applicant generally submitted answers to the Tribunal about the above matters which can be summarised as follows: that he was naïve about how government processes worked with respect to applying for a visa, and that he was unaware of what kinds of evidence might or might not be significant for establishing a person’s claims about their personal history, and that he had been entirely trusting of those persons who he had engaged to act or him with respect to his protection visa application (and that he had never anticipated that they might act in a deceitful manner). However, the Tribunal subsequently obtained the applicant’s November 2017visitor visa application (that is, the visitor visa application which enable the applicant to travel to Australia), and this (in contrast to the applicant’s protection visa application) provided not only a very different account of the applicant’s background, but a range of documents about the applicant’ business, financial and taxation dealings. Moreover, when this was discussed with the applicant (at a resumed hearing of 31 January 2025) he would submit that most of these documents were fake, and that he had obtained these fraudulently because without evidence of this kind he would not have been granted a visa. I have ultimately concluded that only one of the documents in question might be fake but, regardless, it was plain from all of this that the applicant well understood what kinds of documentary evidence were required to establish claims in a visa application, and that the applicant was aware there were persons who could be engaged to assist visa applicants with perpetrating fraud; and I consider that this raises serious doubt about the applicant’s assertions about his being unaware of what was occurring with respect to the information which was provided in his January 2018 protection visa application.

1. The February 2024 hearing then continued with the Tribunal asking the applicant to provide various details about his personal history. In response, and as per the evidence presented in his January 2018 protection visa application, the applicant indicated he had been issued just one passport and he had never travelled abroad prior to his current travel to Australia. With respect to family members (as noted above, none were listed in his January 2018 protection visa application) the applicant was asked if his parents were still alive, and he said his mother was still alive, but they did not talk anymore, though he believed his mother continued to reside at the family home on [Street 1] in Ganjingzi in Dalian. The applicant said he also had a [brother], and he was residing in Wuxi City in Jiangsu Province. The applicant also indicated he had a wife and daughter. He said that his wife was [Ms B] and she was residing at her mother’s home in [Village], [Town] in Wendeng District, in Shandong Province. The applicant said that they had met in 1999 and had married in 2006, and that in [Year] they had had a daughter, [Ms C] who was currently in Australia and residing in [Suburb 3] NSW having arrived here in January 2017 to study [subject] at a college. Th applicant said he was unsure if his daughter had completed her studies, but she had married an Australian citizen, a [Mr D], and had had a child with this person. Asked if his daughter had ever returned to China, the applicant said she had around two years ago (in around 2022) for some two months (before returning to Australia).

2. In response to the Tribunal’s questions about his education history the applicant indicated (as per his January 2018 protection visa application) his highest level of education was his completion of middle school in [Year]. But when I asked the applicant what his first employment had been (as noted above, in his January 2018 protection visa application it was indicated that he had been employed as a worker at a Dalian [factory] in Ganjingzi between [Year] to March 2000, and then as a ‘free-lancer’ between April 2000 to November 2017 in Ganjingzi), the applicant submitted that he had never had a job. Asked to explain how he had earned a livelihood in China, the applicant said he had worked casually. Asked what work he had had in this regard, the applicant said this was hard to explain but he did all kinds of different work like construction and cleaning and selling [produce 1]. Asked what he did first, the applicant said it was hard to recall. He then responded: construction at the first level labour. Asked how long he did this, he said for around a year before he was sent to prison at the age of [Age]. Asked why he was sent to prison, the applicant said he had been stealing chickens and dogs and hats. The applicant said he was imprisoned for 10 years because in 1983 the CCP was engaging in the same activity as what occurred in the 1989 with student activity.

3. I note, in this regard, that in 1983 China saw the first round a police crackdown on crime which became known as Yanda (Strike Hard or Stern Blows) which saw large numbers of arrests and some 30,000 persons sentenced to death as the state sought to respond to a series of a series of brutal and high profile crimes.[55] I note also that the applicant appeared to be vaguely asserting that what had happened in this regard was the same as what had occurred in 1989 when the large scale Tiananmen Square student protests culminated in the military conducted crackdown widely referred to as the Tiananmen Square Massacre.[56]

   [55] Yin, B. & Y. Mou, ‘Centralized Law Enforcement in Contemporary China: The Campaign to “Sweep Away Black Societies and Eradicate Evil Forces”’, China Quarterly, 13 December 2022, ; Wang, Y. & C. Minzner, ‘The Rise of the Chinese Security State’, China Quarterly, June 2015, pp.347-348,

   [56] PBS Frontline, ‘Timeline: What Led to the Tiananmen Square Massacre’, 5 June 2019, ; RFA, ‘China's Young People 'Know Little' of 1989 Tiananmen Massacre’, 3 June 2021,

4. I put it to the applicant that it was unclear what he was trying to say. I asked to him to begin from the start, and to explain exactly what the activities were which he was sent to prison for. The applicant submitted again: stealing chickens and dogs and hats. Asked what prison he was sent to, the applicant said that it was the one in Xinjiang, and that he was sentenced to a felony, and heavily sentenced, but he was innocent because it did not constitute a crime, and he was deported from Liaoning Province to the Xinjiang self-administration area, and he considered this was unreasonable and he hated that community for this, and it damaged his spirit. In response to the Tribunal’s further questions, the applicant submitted that he had had to steal from civilians’ homes and shops because he had been forced from his home by domestic violence, in particular from his stepfather. Asked where he had been living after he left home, the applicant said it was friends’ homes, and it was too many to mention, because he stayed at one friend’s home one day and another the next, and sometimes he would even stay in bomb shelters, or some civilian’s chicken shed, or someone’s warehouse, or underground wells. Asked exactly what happened which led him to end up in jail, he said he was arrested by patrolling police when stealing at night. Asked what happened then, the applicant said he was imprisoned. Asked exactly where this prison was, the applicant said was in the Xinjiang self-administration area (the Xinjiang Uygur Autonomous Region). I put it to the applicant that Xinjiang was a large area where there mut surely be more than one person. The applicant agreed and said there were eight cities in Xinjiang this one was called [Location 1] (I can find no location which matches this name in Xinjiang),[57] in the [Detail 1]. Asked how long he was imprisoned there, the applicant said: seven years until his release (that is, until around 1990).

   [57] See, for example, ‘City Population, ‘China: Xīnjiāng’, ; Toops, S. Demographics and Development in Xinjiang after 1949’, East West Center, May 2004,

5. Asked what happened after his release, the applicant said that his mother and stepfather did not want him and so he rented somewhere else. Asked where his rental accommodation was located, the applicant said this place had already been removed and he could not remember the address as it was 30 years ago. Asked for the approximate whereabouts of this residence, the applicant said it was on [Street 2] in Ganjingzi (in Dalian). Asked how long he lived there, the applicant said that he was there three years (until around 1993). Asked what he did for work there, the applicant said he was selling [produce 1 and 2] to survive. Asked where he lived next, the applicant said that now that he thinks about it again his life has been miserable without love, and that he was beaten and sent to prison and when he was released, he had no home to go back to and he was living a difficult life, and then he started stealing again. At this point, I sought to explain to the applicant the importance of establishing the particulars of his life history with respect to his visa application. I explained that to the applicant that his January 2018 protection visa application had provided barely any of these details about his background. The applicant interjected and submitted that he had paid his previous lawyer to do this, and he (the previous lawyer) had not asked him (the applicant) anything. I explained to the applicant that the responsibility for providing such information rested with him, and he was now being given the opportunity to provide this information and thus far I had not found him forthcoming. I asked the applicant to focus on trying to answer the questions he was asked.

6. I noted for the applicant that he had just indicated that after his release from prison he had resided at a rental property for three years. I asked the applicant where he resided after this. The applicant said that sometimes he did not want to describe his stories because it reminded him of the unpleasant memory. I explained to the applicant that I was not asking him for any stories at this point, and that all I was asking him for were specific pieces of factual information. I asked him again to explain where it was that he resided next. The applicant said that during the second occasion when he was stealing the police tried to arrest him, but he ran away, and was then on the run for 10 years, but he had been wanted everywhere on the Internet, so he had moved to many different places, and in 1998 he went to Weihai in Shandong, and he managed one of his friend’s [workplace 1s] and the name of the [workplace 1] was [Name] and the name of his employer was [E]. Then in 1999 he met his current wife, but he did not tell her about being wanted.

7. Thus, the applicant skipped over the five years from 1993 to 1998 by asserting that he been on the run from police and had been moving to many different places during this time, but without giving any indication of where he had been. At this point I put it to the applicant that much of what he had just told me was very vague such that it was very difficult to get a sense of what he was trying to say. I asked the applicant to focus on the specific question that was asked, and that once that question was answered we would move on to the next stage of his life. I again put it to the applicant that he had indicated that after being released from prison he rented a residence in Dalian for around three years, and if so this period of residence would have been in around 1993 at which time he would have been around [Age] years of age. I asked the applicant to explain what had happened next. The applicant said he was stealing and was caught, and he ran away, and became someone wanted on the Internet. Asked what he had been stealing, applicant said it was one television and one camera recorder. Asked where he was stealing these items from, he said from a residence. Asked why, he said because he could not afford these things, because his small business was only getting by. Asked what happened, he said he was arrested by police. Asked when this was, the applicant said: February 1993. Asked what happened, the applicant said that fled. Asked to explain how he had been able to do this, the applicant said: through the window at the police station. Asked what happened next, the applicant said he was homeless. Asked how long he was homeless for, the applicant said this was for 10 years.

8. I now again asked the applicant to explain to me where he was during this time (that is, the years which immediately followed 1993). He said that there were too many places for him to explain. Asked where he went to fist, he said: a friend’s [workplace]. Asked where this was, the applicant said: Dalian. Asked how long he stayed there, the applicant said: four years.

9. Thus, and while on the one hand the applicant sought to submit that after 1993 he had been on the run from police and homeless for 10 years, and that that there were too many places for him to explain, when pressed for the first place he had gone to (and I note that it took several attempts before the applicant was willing to volunteer any such answer) he said that he was at a friend’s [workplace 1] in Dalian for four years (that is, until 1997), and I note that just prior to this the applicant had indicated that in 1998 he went to Weihai in Shandong, and he managed one of his friend’s [workplace 1s]. If true, then the applicant was in continuance employment with a single employer in Dalian for four years between 1993 and 1997, before moving to Weihai where he was in continuance employment with a single employer from 1998 and at least up to when he met his wife in 1999. Given this, it is difficult to believe that during this time the applicant was homeless, let alone that he was moving from place to place and living in hiding. I note, moreover, that having reviewed the applicant’s evidence at hearing it is evident that he was in fact always eager to speak at length when it came to making assertions about his claims to have experienced past instances of mistreatment and injustice, including as a result of his purported arrests and periods of imprisonment. On the other hand, he was generally not forthcoming when it came to answering the Tribunal’s questions about exactly where he had resided and worked, and the specific details involved. I have concluded that the applicant was often seeking to evade answering such questions by way of generalisations, or by way of seeking to divert the Tribunal’s attention towards other matters, such as his claim about being ‘wanted on the Internet’.

10. When asked about this claim (that he was ‘wanted on the Internet’) and how he knew this, the applicant said: my friend got it from online. Asked what this was, the applicant said: about me being wanted. Asked to explain what this information had said, the applicant said he was not sure because his friend had a friend in a police station wo had told them to beware because they were wanted. I put it to the applicant had he had earlier said his friend found out about this online on the Internet (whereas now the applicant appeared to be saying his friend was told this by a friend at the police station). The applicant said this was correct, and that when someone committed a crime and ran away, they would go onto the system, and this was connected everywhere in China, and as soon as you showed your identification, they would recognise you. I asked the applicant if he had any evidence that this occurred. The applicant responded: How would I have evidence this was on the wanted system? I explained to the applicant that he was first being asked if he had such evidence, and this was a yes or no question. He answered: no. I now invited the applicant to explain why not. He responded: How would I know? I explained to the applicant that he was being offered the opportunity to explain why he had no evidence of this. I explained to him that I could speculate about why he might be unable to provide such evidence, but this was his opportunity to explain to the Tribunal why he was unable to do this. I explained that in response he could provide me with his explanation, or he could tell me he did not want to answer the question. The applicant responded: firstly, it is not that I do not want to answer; and: secondly: when the police arrested me how would I have any evidence for that?

11. The applicant would, subsequently, claim that during the February 2024 hearing he had told the Tribunal he had been issued a notification of arrest with respect to his claim that he was subsequently arrested in 2002 on the basis of having remained wanted after escaping from an arrest for theft in 1993, and also that he no longer had this because he had thrown this away. The applicant would also submit that if this was not apparent then there must have been an error in the interpreting. Having reviewed the above exchanges carefully I am not persuaded that the applicant ever said anything of this kind, or that it is plausible that assertions of this kind could have been omitted or misinterpreted by the interpreter. For, as will be apparent from the above, not only was there no evidence of this at the February 2024 hearing during this exchange but, on the contrary, the applicant was plainly seeking to assert (by way of rhetorical questions) that it was unreasonable to expect that he could be in possession of any such documentary evidence; not only with respect to the specific matter of his claim that he was listed as wanted on an online police system, but also with respect to his assertion that: when the police arrested me how would I have any evidence for that?

12. At the February 2024 hearing I explained to the applicant that it was unhelpful if he responded in the form of a question, and that if the reason for his not having access to any of this was that he did not have access to police systems and the information was confidential, then he should tell me this. The applicant responded: How would I know that this is an answer expected from me? But this is correct because I did not access the police systems so I would not have it. But my other evidence would be the arrest that happened 10 years later of the same incident. I note, in this regard, that what the applicant was submitting at this point was that his evidence that he was wanted was that he was arrested 10 years later (the applicant was not asserting that he had any documentary evidence of this). Asked for the year this occurred, the applicant said that this occurred at the end of 2002. Asked where this occurred, the applicant said that this occurred at [Subdistrict] police station in Ganjingzi in Dalian city. Asked why he was arrested, the applicant said: Stealing 10 years ago, and they saw me because I was on their system, and they arrested me. Asked what led the police to check their system, the applicant said that he was working for [Employer] which was in Qingdao City in Shandong Province. Asked when he commenced employment with this company, the applicant said: 2000. Asked what he was doing for this company, the applicant said that he was looking after their vehicle fleet and that the company moved [products] freight to Jiangsu Province, and his job was to find contacts in Jiangsu to locate work for moving freight to Shandong so that the vehicles would not be empty on the return journey.

13. I note, with regard to all of this, (and in contrast to the applicant’s initial assertions that for the 10 years after 1993 he lived in too many places to remember owing to his being on the run from police), that the applicant had now indicated that: from 1993 to 1997 he was in Dalian (Liaoning Province) working at a friend’s [workplace 1]; and from 1997 to 1999 he was in Weihai (Shandong Province) managing a friend’s [workplace 1]; and from 2000 to 2002 he was in Qingdao Shandong Province) working for a [company] managing the sale of freight services (from Jiangsu back to Shandong) for a fleet of vehicles. Such a history is not greatly suggestive of circumstances in which the applicant was living a life on the run from police.

14. The applicant then continued his explanation of his claim to have been arrested at the end of 2002 by saying that he was in a vehicle on its way back to Shandong when there was a police-check on the vehicle, and he had been arrested after showing his brother’s ID, which he had been using for the last 10 years. The applicant was initially interpreted to have said that this had been caused by how his brother was also wanted by police at that time, but when I asked the applicant what his brother was wanted for, he (the applicant) said that his brother was not wanted, and that what had happened was that the police had realised he was using someone else’s ID because he looked different from his brother and was a different height, and then the police had identified him (the applicant) as someone who was wanted for stealing 10 years earlier. The applicant submitted that, because he had had to make use of his brother’s identity card during this time to avoid arrest, he always dreaded taking trains or flights or other transport, and he preferred just to be driving but, even so, he was arrested. I now asked the applicant if he had any evidence of his having been arrested in 2002. The applicant responded: The police would have had it. I was arrested in [Subdistrict] and taken to [Subdistrict] police station where they contacted the police in Dalian and he was then transported from [Subdistrict] back to Dalian. The police would have the record. I asked the applicant if he had a record. He responded: No, I won’t have it. I have no evidence for this one, unless I would retrieve it from the police station. I was sentenced to four years of imprisonment in Dalian for the stealing incident that happened 10 years ago.

250.   I do not accept that the applicant has made a genuine engagement with the Christian faith; and given this I do not accept that the applicant has been evangelising to his family members. I do accept has been attending the [Church], and also the Beijing online church gatherings, and that he has been posting Bible quotations and images on WeChat, along with a vaguely Christian allusion on TikTok. But the applicant has not satisfied me that he engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee.

251.   I have therefore disregarded this conduct as per the requirements of s.5J(6), and given that I do not accept that the applicant actually has a genuine interest in Christianity I do not accept that he would seek to engage in Christian worship or in the distribution of Bibles or evangelising, or in any Christian activities upon return to China; and I consider that upon leaving Australia his interest in engaging with either the Beijing online church or the [Church] would end, and so these activities would cease. Given this, I am not satisfied that the applicant would face a real chance of any harm for reason of being a Christian if he were to return to China.

252.   With respect to the applicant’s claim that the length of time he has spent in Australia would result in his suffering harm as a perceived supporter of the west against CCP governed China, the applicant has provided no documentary evidence or country information to establish this claim. Nor is it apparent from broader country information that there is a real chance or a real risk that he would be perceived in this way, let alone that he would experience any harm as result of such a perception. For over the recent decade hundreds of thousands of Chinese citizens have returned to China each year after spending prolonged periods abroad living and working and studying in western countries like Australia and the United States, without it being reported that such persons experience problems from China’s authorities simply as a consequence of their prolonged presence outside China in such countries.[153] (And I note that the applicant’s own daughter has been able to visit to China, and then return to Australia, on several occasions without any apparent complication since her arrival here in January 2018).

[153] Haugen, H.O. & T. Speelman, ‘China’s Rapid Development Has Transformed Its Migration Trends’, Migration Policy Institute, 28 January 2022, ; Li, H. et al, ‘Returnee Scholars’ Academic Reintegration into Chinese Regional Universities: the Role of Transnational Capital’, J Knowl Econ, January 2024, ; The Economist, 'Many of China’s top politicians were educated in the West', Economist, 9 March 2023, 20230313121031; Zang, J. ‘“Rùn or stay?” - Why young Chinese who want to migrate hesitate’, Max Plank Institute, August 2022, ; Horoszkiewicz, E. ‘The phenomenon of ”haigui”’, Boym Institute, 22 April 2021, ;

253.   It is reported that China’s authorities may be aware of the behaviour of asylum seekers while they are outside of China, and that they may sometimes be aware that some such persons have applied for asylum; and it is reported that certain groups are of interest to the Chinese authorities when they are abroad in Western countries like Australia, and that such persons can experience adverse attention from China’s authorities after returning to China (most notably ethnic minorities like Tibetans and Uyghurs, and in some circumstance religious minorities and in particular banned groups like Falun Gong), or even while abroad in western countries like Australia and the United States (Chinese authorities are known to have sought to pursued economic fugitives, activists, protesters, and critics to return home by way of threatening the family members of such persons in China).[154] But as noted above this is not the situation more broadly for Chinese citizens who spend prolonged period abroad, including in Western countries; and in-country sources told DFAT in 2023 that failed asylum seekers returned to China were not specifically targeted by authorities and did not face official discrimination merely for having sought asylum overseas.[155] DFAT assesses that Chinese nationals who engage in activity critical of the Government of China while in Australia may be noticed by Chinese authorities, leading to a moderate risk of official discrimination in the form of questioning and detention should they return to China;[156] but the applicant is not a person of this kind, or any of the other kinds of person who are known to be of adverse interest to the Chinese authorities while abroad (whether in western countries or otherwise).

[154] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.144, 3.25, 5.27; Amnesty International, ‘“On My Campus, I Am Afraid”: China’s Targeting Of Overseas Students Stifles Rights', 12 May 2024, 20240514150154; Canada IRB, ‘China: Monitoring of Chinese citizens outside of China, including Falun Gong (Falun Dafa) practitioners, by Chinese authorities; consequences upon return to China (2020–September 2022)’, 12 October 2022, 0221031115105; 'China's political refugees remain at risk long after leaving country', Radio Free Asia (RFA), 20 June 2024, 20240627113305.

[155] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 5.27.

[156] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.146.

254.   Even factoring in the applicant’s vague posts on TikTok which were placed under review (about the deaths of persons who were sent from Liaoning to the Gobi desert singing CCP songs after being sentenced to a life imprisonment), and which he also posted on WeChat, I am not satisfied the applicant would, for the foreseeable future, face a real chance of harm of any kind as a consequence of his returning to China after a prolonged stay in a western country like Australian since November 2017. Given this, and given my broader findings with respect to whether the applicant would face a real chance of any harm if he were to return to China, including that I am not satisfied that the applicant would face a real chance of being unable to access medical or other services, or that he would face a real chance of experiencing economic hardship or other circumstances that would threaten his capacity to subsist (and given that the essential and significant reason or reasons for any problems resulting in this regard for the applicant would not include his race, religion, nationality, membership of a particular social group, or political opinion), I am not satisfied that the applicant would for the foreseeable future, even when his circumstances are considered in their totality, face a real chance of harm, let alone serious harm, for reason of his race, religion, nationality, membership of a particular social group or political opinion, if he were to return to China. I am therefore not satisfied that the applicant has a well-founded fear of persecution with respect to returning to his receiving country of China.

255.   Nor is it apparent that the applicant’s Christian conduct while in Australia would significantly affect the level of risk the applicant would face with respect to his returning to China after a prolonged stay in western country like Australia since November 2017. For, while it is true that some Chinese church leaders and officials and their family members can face a level of monitoring, and even of travel restrictions in this regard (DFAT reports that Chinese church officials travelling overseas have sometimes been required to obtain official permissions due to concerns over potential susceptibility to foreign influence; and Christian advocacy groups have also reported instances of not just church leaders but also their family members facing problems of this kind)[157] and while CCP statements about the Sinicization of religion in China can include platitudes about the need to resist the infiltration of overseas forces;[158] it is nonetheless not apparent from the country information[159] before me that a Chinese citizen (who has not been a church leader or even a church official) would be of any interest to the authorities in China on the basis of past engagement with a Beijing based online church while here in Australia (and I note in this regard that the applicant provided no indication that this church had experienced any adverse problems from the authorities in China, and I consider that it has not), and/or a non-denominational Christian church in Australia, and/or for posting Christian material online as the applicant has done while in Australia (and which the applicant himself has indicated would not result in his facing any problems), or that his having been here in Australia for almost 10 years would alter the way all of this would be viewed by the authorities in China. I am not satisfied the applicant would, for the foreseeable future, face a real risk of harm of any kind as a consequence of his returning to China after a prolonged stay in western country like Australian since November 2017.

[157] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.55; see also: China Aid, 2023 Annual Persecution Report, March 2024, 2024070212491, pp.28, 42, 54; China Aid, 2021 Annual Report- Persecution of Churches & Christians, 01 March 2022, 20230516104752, p.34.

[158] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 3.52, 3.54; China Aid, 2021 Annual Report- Persecution of Churches & Christians, 01 March 2022, 20230516104752, p.41; USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222, pp.23-24.

[159] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414; UK Home Office, 'Country Policy and Information Note China: Christians', 4 April 2024, 20240405142424; USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222; Johnson, I. ‘China Is Reversing Its Crackdown on Some Religions, but Not All’, CFR, 14 May 2024, ; Canada IRB, 'China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)'10 May 2022, 20220602123639; China Aid, 2023 Annual Persecution Report, March 2024, 2024070212491; China Aid, 2021 Annual Report- Persecution of Churches & Christians, 01 March 2022, 20230516104752.

256.   Given this, and given my broader findings with respect to whether the applicant would face a real risk of any harm if he were to return to China, including that I am not satisfied that the applicant would face a real risk of being unable to access medical or other services, or that he would face a real risk of experiencing economic hardship or other circumstances that would threaten his capacity to subsist (let alone that the applicant would thus be arbitrarily deprived of his life in the sense intended;[160] or that he would experience an act or omission intended to cause him the kind of severe pain or suffering (whether physical or mental), or pain or suffering (whether physical or mental), which would amount to either cruel or inhuman treatment or punishment, or the kind of severe pain or suffering (whether physical or mental) which would amount to or torture, or the kind of extreme humiliation which would amount to degrading treatment or punishment; or that he would have the death penalty carried out on him), I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of China, there is a real risk that he will suffer significant harm.

Does the applicant satisfy the refugee criterion for protection?

257. 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).

Does the applicant satisfy the complementary protection criterion for protection?

258. 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)(aa).

[160] SZDCD v MIBP [2019] FCA 326.

Other considerations

1. 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

260.   The Tribunal affirms the decision under review.

Dates of hearings:      27 February 2024 & 22 January 2025

MINISTERIAL INTERVENTION

261. The applicant has requested that the Tribunal refer his case to the Department for consideration by the Minister (pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so), owing to his wish to remain in Australia in order to receive ongoing treatment for his [cancer].

262.   The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention, and these include compassionate circumstances regarding the applicant’s health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship. However, and as has been discussed above, the applicant has not provided any supporting documentary evidence or country information to establish his claim that the forms of treatment he is currently receiving in Australia would be unavailable to him in China (and country information before me indicates that such treatment as he is receiving in Australia is available in China and is of a reasonable standard), or that such treatment would be ineffective, or that he would be unable to access this treatment whether due to a lack of funds or any other reason. I am not satisfied that the applicant would be unable to access such treatment in China.

263. Given this, I have not referred the applicant’s matter to the Department for consideration by the Minister pursuant to s.417 of the Act. This noted, it is open to the applicant to himself make an application of this kind to the Department.

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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