1832644 (Refugee)

[2024] AATA 2654

1832644 (Refugee) [2024] AATA 2654 (28 February 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1832644

COUNTRY OF REFERENCE:                   China

MEMBER:  Jane Marquard

DATE:  28 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2024 at 3:24pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – underground church – detention – torture – credibility issues – exit procedures – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014
Migration Regulations 1994, Schedule 2, cl 866.611

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
SZTOO v MIBP [2015] FCCA 1631

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

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 23 October 2018 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

BACKGROUND AND OVERVIEW

1. The applicant is [an age]-year-old citizen of China. He comes from Ju County, Shandong province.

2. He first arrived in Australia [in] February 2018 on a [Visitor] visa. He travelled on a Chinese passport issued in 2014.

3. He applied for the protection visa on 8 May 2018 claiming to fear persecution in China for reasons of his practice of Christianity.

4. The delegate of the Department of Home Affairs (the Department) was not satisfied that there was a real chance of serious harm, or a real risk of significant harm were the applicant to return to China.

5. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

EVIDENCE

1. The Tribunal has taken into consideration evidence from the Department application, written and oral evidence before this Tribunal and independent country information about China.

2. The applicant appeared before the Tribunal on 7 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

3. The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.1

KEY ISSUES FOR DETERMINATION

1. The key issues in this review are:

   ·     Whether the applicant was a member of an underground Christian church in China as claimed.

   ·     Whether the applicant was arrested and tortured because of his Christianity.

   ·     Whether the applicant has been practising Christianity in Australia.

   ·     Whether there is a real chance of serious harm if he returned to China in the reasonably foreseeable future.

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

·     Whether there is a real risk of significant harm if he returns to China.

1. These and other threshold issues are discussed below.

SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

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

2. Australia acceded to the 1951 Convention relating to the Status of Refugees3 in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees4 in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.5

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

4. An applicant must establish that they:

   a.are a refugee (the refugee criterion);6 or

   b.qualify for complementary protection (the complementary protection criterion);7 or

   c.are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).8

Refugee criterion

1. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

3. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted

2 See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.

3 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (Convention).
4 Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

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

6 Section 36(2)(a) of the Act.
7 Section 36(2)(aa) of the Act.
8 Sections 36(2)(b) and (c) of the Act.

for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

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

2. 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– 5LA of the Act, which are extracted in Attachment A to this decision.

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.

2. The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Act, which are extracted in Attachment A to this decision.

The applicant must satisfy the statutory elements

1. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

FINDINGS AND REASONS

Nationality

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

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

3. The applicant has a passport from China, issued in 2014. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of China, and that China is the receiving country for the purposes of the legislation.

Findings of fact – personal particulars and background

1. The Tribunal accepts the following personal particulars provided by the applicant. These particulars have been provided consistently and there is no reason to doubt the evidence.

2. The applicant was born in [Village 1], Ju County, Shandong in [specified year]. He lived in a small village in a farming area, where both his grandparents and parents grew up. His parents were farmers, growing [specified crops]. They owned a house but did not have much land and

grew crops for household consumption. His grandparents were also farmers. His paternal grandfather lived with them.

1. The applicant’s mother had [number] brothers and sisters. Some of them are still living in the village and some have moved away. [One] brother lives in the village. The applicant also has many cousins in the village, although some have moved to the north.

2. The applicant has a [sister] who was adopted. She is married but has no children, and is living in [a named] city, about two hours from their village. She works in a [business]. [Another sibling] passed away when [age] years old. His father passed away in 2015 before he came to Australia. The applicant keeps in contact with his mother and sister by video. His mother is disabled and only has one eye. When his sister visits every week or few weeks, they have video calls to the applicant as his mother does not know how to use the video on her own.

3. The applicant attended middle school in his village. When he finished middle school, he worked on the farm as the job market was poor and this was ‘his only choice’. He also worked in a [product] company where he met his wife. He had a car accident and had a bone fracture, so he quit the job. He stayed at home for one to two years and then went to [Country 1] in 2007 when he was [age] years old. In [Country 1] he worked for [product 1] company. He was deported in 2010 as he did not have a valid working visa. After that he worked as [an occupation 1] in Ju County until he travelled to Australia.

4. The applicant and his wife were married in the village in 2000. They celebrated by ‘having a meal together’. The applicant’s wife’s family come from the same region as his family. Her family was not religious. She was a member of the Communist Party and used to [work for an agency].

5. The applicant has two sons, one [age] years old, and one [age] years old. His wife and two sons are living in Ju in the town. His wife is working casually in a [business 1] and looking after her younger son and taking him to school. Their [older] son is [working] in a factory.

6. His maternal grandmother was a Christian. She attended a family church in a person’s home. He is not sure if she brought up her [children] as Christians, as he was very young at the time. He ‘guesses she did’. His mother did not go to church and was not a Christian, as she ‘had to work on the farm and she was illiterate’. He knew that his grandparents were Christian as his mother told him. He went to Christian gatherings with his grandparents but only to ‘hang out and play’. They were held in homes and there were 20 to 30 people there in a dark room. He said that there were no registered churches in his village.

7. His father had one sister who was Christian, but she passed away. The rest of the family were not Christians. She went to a different church, which he thinks was a family church. Some of his friends’ parents were Christians.

Was the applicant a Christian and did the incidents he described in China take place?

1. The applicant has claimed that he was a Christian in China, and this led to ill-treatment and arrest. The applicant made the following claims in his application:

   I am an underground Christian. Before believing in Christian, I suffered from headache and many other health problems. Doctors could not find a way to help me. In the year of 2016, I knew underground Christian though a friend. All of my health problems disappeared. Thank God, I learned how to live my life righteously. I also got better relationship with friends and family members. I had joyful life and peace in mind. I was grateful that the underground Christian is so wonderful.

On [a day in] June 2017, Church Brothers hold the underground meeting at my place. Suddenly the police broke into my home and arrested [number] Church Brothers and me. We were detained in a small dark cell that night at the [Police Station 1]. In the early morning next day, police began to interrogate me. The police grabbed my hair and beat me up. I was hung up with handcuffs and brutally beaten. The police shouted that I was a pig to be killed.

The torture was continued until deep night. All of my limbs turned numb and I could not feel them at all. My face was swollen and my body was bruised.

The next day, along with other Church Brothers, I was handcuffed and taken out to the streets. The police used us to warn other people. Then we were brought back to the detention center for further illegal detention. At the detention center, police tortured me every day in order to coerce me to give up my belief. As I refused to give up my faith, I was slapped, spat upon, and got water poured over my head. I was also forced to stand in the yard. The guards used many means of persecution on me. I asked them which law I violate by being a good person. They answered that I violated the law by simply believing in underground Christian. They also said they followed the direction of the Government. I was given very little food every day. Ten days later, I was released after my family paid them 1,000 yuan.

The police threatened me several times after my release. They broke into my home to check. My wife and son were frightened and they shivered in fear. Due to constant harassment by the police, my wife got [a medical condition]. For my future, my family helped me to get the visa. Thank God, I safely came to Australia. The persecution was continued in my hometown. In the end of April 2018, [Brother A] was taken to a brainwashing class by the police. [Brother A] was carried into the police car after being surrounded. At the brainwashing class, he took the hunger strike to protest. On the fourth day, [Brother A] was forcedly fed. The police brutally inserted a thick plastic tube down through his esophagus to stomach. He was severely tortured that he almost suffocated. Seeing [Brother A] was going to die, the police finally pulled out the tube. The blood flowed out from his mouth. Without any mercy, the police continued the persecution. [Brother A's] life was in danger.

[Brother A’s] family knew his situation during the visit. Dear Load, please help [Brother A]. I didn’t reveal my story to the Australian Government as I was afraid of deportation. Now the Lord give me the strength to apply for refugee protection. I hope the Australian Government to allow me to stay here. Amen.

1. The Tribunal has considered the applicant’s evidence in his application together with the evidence he presented to the Tribunal. After considering this evidence, the Tribunal accepts that the applicant may have attended church a few times but is not satisfied that the applicant was detained and tortured in China as a result of practising Christianity. The reasons for this are set out below.

2. At the Tribunal hearing the Tribunal asked the applicant when he first decided to go to church. He said that he first went to church when he was 10 years old with his grandmother, but he cannot remember it. He said that he also went to church while working in [Country 1], and then in 2016 he attended an underground church in China. He said that he was baptised in Australia.

3. He told the Tribunal that in [Country 1] he attended a Catholic Church called [name] church in [Location 1]. The pastor was [from Country 1] but had 15 years’ experience educating people in China. He could speak Chinese. The Tribunal asked the applicant why he decided to go to church in [Country 1], and he said that he was working without a visa, and people were warm-hearted and helped him. He was homesick and could not sleep. The pastor’s name was [Pastor A]. He attended Bible Study. The pastor would read the Bible to them. He said that he went to church on Sundays if he did not have work to do.

1. The Tribunal accepts that the applicant may have attended a church with his grandmother when he was very young. Christianity is widely practised across China.9 The Tribunal also accepts that the applicant attended a church sometimes in [Country 1]. His reasons for attending were persuasive – that he was homesick and the people in the church were warm-hearted.

2. The applicant said at the Tribunal hearing that he did not join a church when he got back to China in 2010. He said that his father had cancer and he was busy taking care of him. [Details deleted.] He said that he then became sick and joined a church to help him overcome his medical problems. He claimed that he found the church from a believer in [Country 1], named [Friend A]. She told him about the church in his village through a social media platform QQ. He said that it was a different church to his grandparents’ church. He made contact through QQ. He claimed that the church held gatherings at people’s homes. He said at the first gathering there were four people, and one was called [Brother A]. At other gatherings there were four to seven people. One person had a Bible, and they studied the Bible. Asked if he recalled which parts of the Bible they studied, he said that they studied the part that said that Jesus got nailed to the cross to save other people. He said that he also read about how Jesus sacrificed his own son. He was asked what else they did at the gatherings, and he said that they shared meals, and they had a leader who would describe the Bible to them. This leader has now passed away. Asked what his wife thought about his church attendance, he said that she did not support it, but she could not control him. Asked if he was worried about his wife or son’s safety he said that he ‘did not think that much’. He said that his mother did not know he went to church.

1. The Tribunal accepts that the applicant attended church gatherings in China but not that he was a particularly devout practitioner, given the short period of time he attended, his basic knowledge and the fact that his wife was not involved and his mother did not know he was Christian. The Tribunal accepts that the applicant was looking after his father when he returned to China from [Country 1] and so did not attend a church right away but was later connected through a friend. It is perceivable that he was connected to a church through a person he met in [Country 1]. There are Christian churches, registered and unregistered, throughout China.10

2. The Tribunal does not accept the applicant’s evidence about being arrested, tortured and harassed by the authorities as a result of his attendance at the church. In making this finding, the Tribunal has taken into consideration the particular difficulties asylum seekers may have in presenting evidence, due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

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

1. Experiences in a home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences

9 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

10 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

due to lapse of time or other reasons.11 For these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.12 Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.13 An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.14

1. The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence how evidence is presented15 and that it should be careful of basing findings on assumptions. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia16 in regard to the process of credibility assessment. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

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

1. The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,17 which reinforce that the Tribunal should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those

11 AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, < policies-and-guidelines>.

12 Fox v Percy (2003) 214 CLR 118.

13 Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511,
< Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

15 H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.
16 For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

17 AAT, Migration and Refugee Division, ‘Guidelines on the Assessment of Credibility’, available on the AAT Website, policies-and-guidelines.

who are generally credible but unable to substantiate all claims.18 A similar approach is taken in the Department’s Refugee Law Guidelines19 and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’),20 which provides useful guidance for this Tribunal.

1. The Tribunal has taken this ‘reasonable’ approach to credibility assessment, by considering the factors which may impact on presentation of this applicant’s evidence, such as the passage of time and potential trauma, and being careful not to reach conclusions based on its own assumptions.

2. Although the Tribunal has taken into consideration factors which may have impacted on the applicant’s presentation of evidence, the Tribunal is not satisfied that the applicant was arrested or tortured as a result of practising in a house church. The reasons for this are as follows, noting that the Tribunal is not required to accept uncritically claims made by an applicant21 as the applicant is required to specify particulars of a claim and make out the statutory elements.22.

3. Firstly, the applicant’s explanations about joining the church relate to him having had significant medical problems which were cured when he joined the church, however he has been unable to provide medical reports to corroborate this claim. In his application he said that ‘I suffered from headache and many other health problems. Doctors could not find a way to help me.’ This evidence suggests that he had seen a number of doctors for his medical problems. This was confirmed at the Tribunal hearing, where he said he decided to join after he had bad headaches, and could not sleep, and had to have injections at a hospital and take medicine. He said that after a month he was not happy with the medical treatment he was receiving and people told him he could get help from a church. He said that it took him one to two months to get better. He had sinusitis. The applicant did not provide an explanation as to why he does not have any medical reports from this period. Although the Tribunal accepts that he may have attended church sometimes, it does not accept that he attended in order to find a cure for his illness, nor that such a cure led to him being devoted to the church.

4. Secondly his evidence in his Department application and to the Tribunal about what happened at the church was not consistent. At the Tribunal hearing he claimed that at the church gatherings, they discussed how the Communist Party ‘was not doing good things’. This was not a claim he had included in his application. He also said that [Brother A], one of the practitioners, practised Falun Gong as well as Christianity at the gatherings. He said that the discussions about the Communist Party and the Falun Gong practice led to them receiving harsher treatment from the authorities. As discussed with him at hearing, if at the gatherings they spoke about their opposition to the Communist Party and [Brother A] practised Falun Gong, it would have been expected that he would have mentioned this in his application as this was the key document outlining his claims for protection. For this reason, the Tribunal accepts that he may have attended church sometimes, but the Tribunal does not accept that at these gatherings they spoke about their opposition to the Communist Party. The Tribunal also does not accept that one of the practitioners practised Falun Gong.

18 SZLVZ v MIAC [2008] FCA 1816 at [25].

19 Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017.

20 UNHCR, re-issued February 2019 at 203–204.

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

6 FCR 155.
22 Section 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

1. Thirdly, the applicant’s description about the arrest was inconsistent in important ways in his evidence to the Department and Tribunal. In his application, he said that on [a day in] June 2017, ‘Church Brothers hold the underground meeting at my place. Suddenly the police broke into my home and arrested [number] Church Brothers and me’. However, at the Tribunal hearing, he said that after the first gathering, they gathered a few more times, ‘about five to six’, and then they were ‘caught’. He said that they got ‘caught and battered’ on [the day in] June 2017 when they were in [Brother A’s] home. Asked what he remembers about that day, he said that there were [number] people at the gathering, and the police burst in and he got caught and was hit really hard. He said that the police put handcuffs on them, and arrested them, because they said that they had ‘gathered to say bad things about the government’. He repeated that they were in [Brother A’s] home. The Tribunal is of the view that even though trauma may have impacted on recollection of some details, the applicant would recall if he was at his own home when arrested.

2. Fourthly, the applicant’s evidence about what took place during his detention was different in key features, in his account in his application, and his evidence to the Tribunal. He said in his application that:

   we were detained in a small dark cell that night at the [Police Station 1]. In the early morning next day, police began to interrogate me. The police grabbed my hair and beat me up. I was hung up with handcuffs and brutally beaten. The police shouted that I was a pig to be killed. The torture was continued until deep night. All of my limbs turned numb and I could not feel them at all. My face was swollen and my body was bruised. The next day, along with other Church Brothers, I was handcuffed and taken out to the streets. The police used us to warn other people. Then we were brought back to the detention center for further illegal detention. At the detention center, police tortured me every day in order to coerce me to give up my belief. As I refused to give up my faith, I was slapped, spat upon, and got water poured over my head. I was also forced to stand in the yard. The guards used many means of persecution on me. I asked them which law I violate by being a good person. They answered that I violated the law by simply believing in underground Christian. They also said they followed the direction of the Government. I was given very little food every day. Ten days later, I was released after my family paid them 1,000 yuan.

1. In the evidence to the Tribunal, the applicant confirmed that he was arrested for 10 days but said that they were taken to the local police station and then to a specific facility for holding persons in custody. In contrast to his evidence that he was paraded outside, he said that he was kept inside the station for 10 days, while police tried to interrogate them by making them say things and give them names of others in the group. He said that family members were not allowed to visit. In contrast to the evidence about being hung up with handcuffs and brutally beaten, slapped, spat on and forced to stand, he said sometimes the police hit them, if they had energy to do so, otherwise they just gave them one meal a day. He said that [Brother A’s] family told his family of the arrest.

   54.      The Tribunal put these inconsistencies to the applicant at the Tribunal hearing for his comment, given that the inconsistencies led the Tribunal to question whether the arrest took place. The Tribunal put to him that his initial evidence in his application was that he was arrested at his house, but he had told the Tribunal that he was arrested at [Brother A’s] house and that [Brother A’s] family told his family about it. The Tribunal said that it would be expected that he would recall if he was arrested at home. Further in his application to the Department, he said he was paraded outside by police and tortured, but he had told the Tribunal he was kept inside and did not mention being tortured. When asked about these matters at the Tribunal hearing, he said that when arrested he was kept overnight and the next day he was taken on a parade and then sent to the detention centre. The Tribunal does not accept this evidence as he was asked a number of times if anything further happened in the detention centre and he said that he was kept inside for 10 days. He also has not explained why he said that the arrest took place at his home in his application.

2. Fifthly, the applicant’s evidence about being arrested and tortured because he was a member of an underground church does not accord with the general information in independent sources about the treatment of practitioners in small house churches. The information does not suggest that it was common for members of small house churches to be targeted for arrest or torture.23 Country sources indicate that most Protestants practise in house churches, many of which have been tolerated24 although in recent years there has been focus on sinicisation of these churches.25 The UK Home Office referred to the Upper Tribunal case of QH (Christians-risk) China CG [2014] UKUT 86 (IAC) in 2014 which found that the risk of harm on the basis of Christian worship generally is statistically negligible.26 The UK Home Office reviewed events in 2019, finding that ‘the government of China has continued to impose restrictions on Christians, and these have intensified since QH was heard in 2014. However, the situation for most Christians has not changed significantly, with the risk of treatment amounting to persecution for expressing and living their faith still being very low. There are not very strong grounds supported by cogent evidence to justify a departure from QH.’27 The Department of Foreign Affairs and Trade (DFAT) suggests that it is churches which do not submit to government authority, or larger churches, or ones where the religion itself is perceived by the Chinese Communist Party (CCP) to be closely tied to other ethnic, political and security issues,28 which could attract adverse interest. These categories do not apply to the applicant’s underground church as described. This factor is not determinative, given the variations of conduct of local officials, but when considered alongside the other factors referred to above, the Tribunal is not satisfied that the applicant was arrested and tortured as claimed.

3. When asked why he believed that the authorities were interested in his church, given these sources, the applicant said that at their gatherings they ‘said bad things about the Communist Party.’ Asked what he did not like about the Communist Party he said ‘corrupted’. He was asked to elaborate. He said that public officials can do whatever they want. He said that ‘public officials can set a fire but citizens cannot light a candle – this is a Chinese saying’.

4. He also claimed that police were ‘particularly strict’ with [Brother A] as he practised Falun Gong. He said that [Brother A] was tortured to death three years ago. He said that [Brother A] would tell him about Falun Gong at gatherings. He had only met [Brother A] a few times and this was ‘good, as I did not know much about Falun Gong, or I would have been punished more’. He said that he sometimes saw [Brother A] doing Falun Gong exercises, sitting with his legs crossed. He said that [Brother A] sometimes practised Falun Gong and sometimes Christianity. He was asked how the authorities found out about this and he said that he did not know. As referred to earlier in this decision the Tribunal does not accept that the applicant and his friends talked about how they did not like the Communist Party, or that [Brother A] also practised Falun Gong in the applicant’s presence. The Tribunal is of the view that if these were part of the applicant’s claims about what took place in China, he would have included details of them in his application, given they are key aspects of his claims. It was put to the applicant at the

23 For example, UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019.

24 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
25 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
26 UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019.
27 UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019.
28 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

Tribunal hearing that the Tribunal was of the view that the arrest did not take place, given that authorities would not be interested in small gatherings and further, he had not mentioned Falun Gong or anti-Communist Party discussion in his application, which suggests it did not take place. He said that at the time he did not dare include this information in his application as [Brother A] was still alive, but now he has passed away. The Tribunal is not satisfied that this explains why he did not mention these aspects of his claims, given the confidential nature of protection claims and that he could have kept [Brother A’s] name anonymous.

1. Sixthly, the applicant was able to obtain a visa and leave China freely although he had purportedly recently been in detention and police were still allegedly questioning him regularly. It was put to him at the Tribunal hearing that the DFAT Country Information Report in 2017 stated that dissidents and their families had been subject to exit bans.29 According to sources, the government maintained a system of border controls that prevented persons of interest departing the country.30 The 2017 report states that passports use sophisticated technology and Chinese authorities have a high surveillance capability, particularly at train stations, airports and ports.31 DFAT concluded that an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.32 Furthermore, the government had expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents, government lawyers, activists and others, including some family members.33 Sources stated that major airports have a centralised system with name-matching alert capabilities,34 and that facial recognition technology is also widely deployed at all international checkpoints, including air, land and sea.35 Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks, including passport and ticket/boarding pass inspection, run by different agencies between arriving at the airport and boarding a flight.36

1. When this DFAT Report was put to the applicant at the Tribunal hearing he responded that he was in trouble with local police and not at a state level, and he had the relevant papers and a friend helped him leave. The Tribunal notes that sources indicate that there is sophisticated surveillance at all levels and little scope for corruption. The Canadian Immigration and Refugee Board released a research report dated 6 March 2014 on exit procedures in China. The report stated that airport officials had access to the Public Security Bureau of China’s online database of citizens who have been convicted of crimes or are wanted by authorities, and that officials would often confiscate passports held by individuals deemed unsuitable for foreign travel.37 The Board produced another report on 22 September 2015, which noted that a person may be requested to produce their passport up to four times

29 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 21 December 2017.

30 United States Department of State, ‘Country Report on Human Rights Practices – China’, 20 April 2018.
31 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 21 December 2017.
32 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 21 December 2017.
33 United States Department of State, ‘Country Report on Human Rights Practices – China’, 20 April 2018.
34 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 21 December 2017.
35 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 21 December 2017.
36 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report’, 21 December 2017.

37 Immigration and Refugee Board of Canada, ‘China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports’, 6 March 2014, CHN104761.E, < information/rir/Pages/index.aspx?doc=455173&pls=1>.

at the airport, and will be scanned at the airline check-in and departure counters.38 Individuals detained at underground church meetings would have their names placed in Public Security Bureau databases (ChinaAid, 2015) and church members’ names and details would be placed onto the database.39

1. The United States Department of State has also reported that the government expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in government posts. Border officials and police cited threats to ‘national security’ as the reason for refusing permission to leave the country. Authorities stopped most such persons at the airport at the time of their attempted travel.40 Considering these sources cumulatively, the Tribunal is not satisfied that the applicant would have been able to obtain a visa and leave freely if he had in fact been arrested and harassed by authorities not long before departure, whether at a state or local level.

2. For all these reasons considered cumulatively, the Tribunal does not accept that the applicant was a very devoted member of an underground church, or that he was arrested and tortured, or that his wife paid 1,000 RMB for his release. While the factors set out above have been considered cumulatively, the inconsistencies in evidence were particularly important in making the findings, given how material they were. The Tribunal also does not accept his claim that the ‘police had not finished interrogating him yet so they kept coming to his house after he was released, about three times’. The Tribunal does not accept that he was hiding at this time as claimed at the Tribunal hearing.

   Has the applicant practised Christianity in Australia, and will the applicant practise Christianity in China?

3. The applicant told the Tribunal that when he arrived in Australia, a friend who had been in the same church in [Country 1] picked him up at the airport. He rented a place for the applicant in [Suburb 1] for two weeks. After that the applicant worked in [Suburb 2] and lived with his employer who worked doing [occupation 2]. The applicant currently lives with a person from his hometown in [Suburb 3]. The applicant said that he has attended church on and off in the last year, and two years ago he twice attended a different church.

4. The Tribunal is satisfied that the applicant has attended church irregularly in Australia as claimed but does not accept that he is a devout Christian or a Christian that has significant knowledge about Christianity or feels passionately about it.

5. The first reason for this finding is that the applicant did not attend church for the first three or four years in Australia and since then he has practised only sporadically. The applicant told the Tribunal that he goes to church in Australia. He said it is the ‘[Church 1]’, which is close to [Suburb 4]. He said that his friend took him there ‘a year ago’. Asked if he knew

38 Immigration and Refugee Board of Canada, ‘China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology’, 22 September 2015, CHN105049.E, cisr.gc.ca/en/country-information/rir/Pages/index.aspx?doc=456118&pls=1.

39 Immigration and Refugee Board of Canada, ‘China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures check points and the use of computerized identity verification; sharing of information with officials at airports’, 6 March 2014, CHN104761.E, < information/rir/Pages/index.aspx?doc=455173&pls=1>.

40 US Department of State, ‘Country Reports on Human Rights Practices 2018 – China’, 13 March 2019, < tibet-hong-kong-and-macau-china/>.

what denomination or type of church it was, he said that it was Christian, a ‘Jesus Church’. He told the Tribunal that he attends services on Sundays irregularly, depending on his work schedule. He said that sometimes he does not go for two months and sometimes he goes twice a month. He was asked if he attends other programs or groups. He said that there are different time slots, and one is conducted in Chinese. The pastor’s name is [Pastor B] and there are two other pastors. Asked if this was the first church he went to in Australia he said that he went to a [Suburb 5] Church in [a specified location] twice two years ago. He said that the pastor’s name is [Pastor A], and he teaches the Bible. He also has a [service 1] business. As the applicant has been in Australia since early 2018, the Tribunal asked the applicant why he did not find a church to attend once he arrived in Australia. He answered that he was working on small [projects] and had to follow instructions of supervisors. He said that he sometimes worked all day on Sundays. The Tribunal accepts that he has had work commitments, but this does not explain why he did not locate a Chinese church when he first arrived in Australia in 2018, rather waiting two years to attend the church in [Suburb 5] which he said he attended twice, before in the last year finding a church in [Suburb 4].

1. The second reason is that the applicant only had basic knowledge for a person who had attended church on multiple occasions, and attended Bible Study, even given his level of education.

2. The applicant said that he has done some Bible Study but is not a ‘clever person and has not studied’. He said that he forgets things. The Tribunal asked the applicant what it means to him to be a Christian. He said that he is blessed by God. He was asked by the Tribunal if he had a favourite Bible story. He said that the story is about a snake: ‘Jesus saved the snake’. He was asked if he had celebrated Christmas. He said that in China they only gathered six or seven times and it was ‘not Christmas yet’. He said that he has not celebrated Christmas in Australia as he spent Christmas with friends. Asked if he knows what Christmas celebrates, he said that it celebrates Jesus. Asked if there was anything particular about Jesus that Christmas celebrates, he said it was ‘when Jesus got nailed to the cross’. Asked if he had ever heard of the miracles that Jesus did, he said that after three days nailed to the cross Jesus came to life again. He was asked if he knows the names of Jesus’ parents. He said that Jesus’ father is Joseph. Asked if he knew why God sent Jesus to Earth, he said that it was to save humankind. The Tribunal would not expect a person with a low level of education to have significant knowledge about the Bible, even though he did say that he had been studying the Bible. He was able to refer to some important tenets of Christianity, such as the resurrection, which indicates he has attended church of some kind. However, his knowledge was by no means advanced, given that he did not know the story of Christmas and when asked to refer to a Bible story, referred to Jesus saving a snake.

3. The applicant said that he was baptised in [Suburb 6]. He then said it was [Suburb 4]. Asked if he brought his baptism certificate along to show the Tribunal, he said that he did not know he had to bring it with him. The Tribunal expressed concern to him that there was a lack of corroborative material to support his claims such as a certificate, photographs, and witness statements. He asked for time to provide this material and he was granted time to provide supporting documents after the hearing. Following the hearing the applicant provided a letter from [Mr A], [one leader] of a [Suburb 7] church dated 12 November 2023. [Mr A] said that the applicant had been attending church for Sunday worship and cell group activities from 12 March 2023 to the present day. The Tribunal does not accept that the applicant was baptised as there was no reference to baptism in [Mr A’s] letter, but the Tribunal does accept that the applicant has attended the [Suburb 7] church in the last year, given the corroboration by [Mr A].

4. As the applicant had primarily only attended church in the last year in Australia and his level of knowledge and attendance has not been high, the Tribunal does not accept that he is a

devoted practitioner, although the Tribunal does accept that he has some interest in Christianity.

1. He was asked if he returned to China if he would practise Christianity. He said that he would. The Tribunal asked him why he would practise if he does not practise very often in Australia. He said that he would practise, and he would be arrested as ‘police are not letting the previous incidents go yet’. The Tribunal accepts that he may occasionally attend church as he has in Australia.

Does the applicant have a well-founded fear of persecution for reasons of his religion or imputed political opinion?

1. The applicant claims that he is afraid that if he returns to China he will be tortured to death upon arrival, due to his practice of Christianity in the past and because he would continue to practise. He said that he is afraid of being arrested and of being asked to ‘give names. He said that he is also afraid of being asked if he is involved with Falun Gong.

2. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In this case, the relevant reason is religion and/or imputed political opinion based on practice of Christianity or Falun Gong.

3. To meet the criteria, there must be a real chance that an applicant would be persecuted for one or more of those reasons. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept;41 not only must a person fear persecution, but there must be a prospect of that fear being realised.

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

5. The Tribunal has assessed whether there is a real chance of serious harm if the applicant were to return to China in the reasonably foreseeable future42 by considering the applicant’s specific circumstances and independent country information about China.

6. The Tribunal has not accepted for reasons set out earlier in this decision that the applicant was a devoted practitioner in China or that he was arrested and tortured as a result of his worship in an underground church. The Tribunal has also not accepted that the authorities continued to harass or look for the applicant after the purported arrest. The Tribunal has accepted that the applicant has attended church irregularly in Australia in recent years but does not accept that he is a devout or passionate Christian who has been baptised, or that he perceives himself as such. As his practice has only been sporadic, the Tribunal does not accept that he would actively participate in a church, registered or unregistered, in China, although he may occasionally attend a service.

41 See comments in UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status’, February 2019, UNHCR – Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.

42 SZTOO v MIBP [2015] FCCA 1631 at [27].

1. As an irregular and occasional attendee at a church, the Tribunal does not accept that there is a real chance of serious harm were the applicant to return to China in the reasonably foreseeable future, notwithstanding serious impositions by the government on churches in China. Relevant sources are cited below, but the Tribunal notes that in making these findings, the Tribunal has taken into consideration the fact that accurate information is limited from China43 and it is more sensible therefore to expect more repression than is actually reported.

2. By way of background, the Chinese Constitution states that Chinese citizens ‘enjoy freedom of religious belief’, specifying that ‘normal religious activities’ are protected.44 However, legal protections extend only to religious groups who have registered with one of the five ‘patriotic religious associations’ (Buddhist, Taoist, Muslim, Catholic and Protestant).45 In 1982, religious tolerance was formally reinstated in a new edict of the CCP – ‘The Basic Viewpoint and Policy on the Religious Affairs during the Socialist Period of Our Country’ – which has become known as ‘Document No. 19’.46 Since Xi Jinping took the helm of the CCP in 2012, the authorities have intensified restrictions resulting in an overall increase of religious persecution.47

3. According to a Canadian report in 2021, ‘sources report that since the implementation of the 2018 Regulations on Religious Affairs, Chinese authorities have increased crackdowns on unregistered religious groups (UCAN 20 July 2021; Amnesty International 30 Dec. 2019). The ChinaAid Association (ChinaAid), a US-based ‘international non-profit Christian human rights organization committed to promoting religious freedom and the rule of law in China’ (ChinaAid n.d.), states in its 2019 annual report on the treatment of Christians in China that ‘authorities have continued to carry out the central government’s orders to force religion to place the Chinese government’s ideals at its center, and officials arrest those who resist’ (ChinaAid 28 Feb. 2020, 37). Amnesty International adds that ‘[a]uthorities have removed crosses and Christian slogans from church buildings, confiscated or vandalized church properties, ordered churches to close and questioned church leaders and members’ (Amnesty International 30 Dec. 2019).48

4. The most recent DFAT Report also states that ‘authorities have regulated Christianity to make it more “China-orientated”’:

   Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims 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

   
   

   43 Pew Research Centre, ‘Measuring Religion in China’, 30 August 2023.

   44 US Department of State 2014, ‘China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013’, 28 July, ‘Executive Summary’ paragraph 1,
   < US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 4, paragraph 2,
   < CCP Central Committee 1982, ‘Document No. 19: The Basic Viewpoint and Policy on the Religious Question during our Country’s Socialist Period’, March, Purdue University Center on Religion and Chinese Society website.

   47 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 3 October 2019.

   48 Research Directorate, Immigration and Refugee Board of Canada, ‘China: Treatment of members of house churches [also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches], including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse’, 2019-October 2021.

deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.

Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.

1. Notwithstanding this focus on sinicisation and regulation, the evidence suggests that the number of Christians in China is large and growing, with Protestantism a recognised religion and most practitioners practising without harassment. Sources available to the Tribunal indicate that there are many millions of practising Christians in China, in both registered and unregistered churches, notwithstanding that China is an atheist state49 and that there are ongoing restrictions imposed by the government and endeavours to ‘sinicise’ religious activity.50 The United States government estimates there are 71.4 million Christians throughout China;51 higher estimates also exist.52 There are at least 38 million Protestants.53 DFAT suggests that in practice, the number of religious believers, places of worship and religious organisations is likely to be much higher than official figures suggest – particularly with respect to unregistered organisations (including house churches) which operate in parallel to state-sanctioned Christian churches.54 Freedom House estimates there are 60 to 80 million Protestants, of which only 30 million are registered.55

49 United States Commission on International Religious Freedom, ‘International Religious Freedom Annual Report 2023’.

50 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

51 United States Department of State, ‘’2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang)’, 15 May 2023.

52 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
53 China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper) quoted in Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 3 October 2019.
54 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 3 October 2019.
55 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 3 October 2019.

1. In April 2022 the Immigration and Refugee Board of Canada reported on the treatment of Christian churches in China.56 The report, like other sources, noted the increased restrictions on, and regulation of, Christian churches as well as the focus on ‘sinicisation’ of religious faiths, however quoting academics who state that there is little interference in day-to-day activities:

   The Lecturer stated that treatment of CCPA or TSPM churches is "reasonably good," in that authorities "tend not to interfere" in the "day-to-day running of churches and the lives of church leaders and members," provided they are not "deemed to be violating religious policy" (Lecturer 1 Apr. 2022). The same source, however, added that treatment varies "across time and place" (Lecturer 1 Apr. 2022). The Research Associate noted that church members who comply with the regulations do not usually face "trouble" from authorities (Research Associate 22 Mar. 2022). The same source added that members who do not follow the regulations will face government intervention, but noted that such interventions used to be "arbitrary" whereas they are now guided by the regulations which clarifies the "red lines" (Research Associate 22 Mar. 2022).

1. The United States Department of State International Religious Freedom Report suggests that authorities do arrest and detain leaders and members of religious groups and use vague or unsubstantiated charges to convict leaders and members. Estimates of those imprisoned ranged from a few thousand to over 10,000. The Tribunal notes that these estimates refer to only a small proportion of practising church members and include all groups. In the 2021 United States Department of State International Religious Freedom Report, the NGO Human Rights Without Frontiers estimated that the government imprisoned 2,987 individuals for exercising their right to freedom of religion or belief as of 7 December 2021. The Report also refers to the Political Prisoner Database of the human rights NGO Dui Hua Foundation which counted 3,793 individuals imprisoned as of 30 September 2021 for ‘unorthodox’ religious beliefs, including 2,751 Falun Gong practitioners, 578 CAG members and 147 members of other Protestant groups.57 ChinaAid in its 2022 report outlines 10 cases involving the arrest, detention and/or sentencing of leaders and members.58 Other sources refer generally to cases of arrest and detention without numbers.59 Even accepting that not all are reported, the numbers are nonetheless statistically low, when considering the 60 to 80 million Protestants60 in the country. While some members of house churches have been targeted, leaders are more often the focus of attention, and also large churches or those which challenge authority.61

2. The emphasis, according to sources, appears to be primarily on hindrance on operation of the churches rather than arrests and torture. Amnesty in its 2023 report, although also mentioning arbitrary arrest and detention of house church leaders and practitioners referred to the crackdown on house churches since 2018 involving removal of crosses and Christian slogans from church buildings, confiscation of property, vandalising of church property and questioning of church leaders and members. ChinaAid also referred to forcible demolition of

56 Research Directorate, Immigration and Refugee Board of Canada, ‘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)], by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020–April 2022)’, CHN200992. E.

57 United States Department of State, ‘International Religious Freedom Report China’, 2 June 2021.
58 ChinaAid, ‘ChinaAid’s Annual Persecution Report 2022’, 14 February 2022.
59 Bitter Winter, ‘About page’, < United States Department of State, ‘International Religious Freedom Report China’, 2 June 2021.
61 United States Department of State, ‘International Religious Freedom Report China’, 2 June 2021.

churches in Shanxi and Hebei and the outlawing and shutting down of churches in various locations.62 According to the most recent DFAT Report:

Most Protestants worship in unofficial ‘house’ churches. These ‘underground’ churches may literally be in a house, or can be large gatherings in, for example, commercial office space. During COVID-19, some services moved online, which in some cases increased the size of congregations. In recent years the government has increased efforts to force them to submit to the authority of the TSPM, teach Party- aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM. Churches refusing to align with the TSPM have been closed or threatened with closure. DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches. Larger churches are most likely to receive government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions. The situation for Protestants differs from place to place and community to community. DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without any interference. The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.

1. DFAT suggests that family and friends have the right to meet at home for worship, including prayer and Bible Study and some house churches are registered with the state and operate very openly, despite some sources referring to attacks on pastors and clergy.63 Some larger groups have been forced to split up and keep a low profile.64

2. These sources generally indicate that ordinary practitioners who are not leaders, activists or evangelists are usually able to practise without harassment, although there may be some official harassment. DFAT has stated that consistent with Yang’s theory of the three markets, many ‘grey-market’ churches have operated relatively openly for many years.65 In the United Kingdom country guidance case66 quoted earlier, the Upper Tribunal found that in general the risk of persecution for Christians expressing and living their faith in China is very low. In a telephone interview with the Canadian Research Directorate, a professor at a university located in the US, whose research focuses on Protestants in China and who has conducted extensive fieldwork in the country, stated that house churches are ‘mainstream,’ hold beliefs and practices similar to official churches, and receive ‘more lenien[t]’ treatment (Professor 10 Sept. 2021).67 Furthermore, believers have responded with official resistance to government interference, and faith communities have generally enjoyed cooperative relationships with

62 China Aid, ‘ChinaAid’s Annual Persecution Report 2022’, 14 February 2022.

63 Christian Daily, ‘CCP Police Brutally Attacks Chinese Pastor Who Only Wanted To Visit Fellow Christians’, 31 May 2021; South China Morning Post, ‘China orders clergy to toe Communist Party and socialist line’, 19 February 2021; Review of Religion and Chinese Society, ‘Official Protestantism in China’, K Koesel, Y Hu, J Pine, Volume 6, Issue 1 (2019), pp. 76–77; Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

64 Open Doors, ‘China: Full Country Dossier’, 28 March 2023.
65 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
66 QH (Christians – risk) China CG [2014] UKUT 00086 (IAC) (14 March 2014).

67 Research Directorate, Immigration and Refugee Board of Canada, ‘China: Treatment of members of house churches [also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches], including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse’, 2019–October 2021.

state and party officials.68 While leaders of some of the registered churches have been targeted and the government has tried to restrict the use of crosses and Christmas decorations,69 generally Protestants in China are permitted to worship at officially registered Protestant churches and many millions do so unhindered by the government.70 Country information discussed above states that church leaders, those who proselytise and unregistered church members who engage in human rights activism, come under greater scrutiny from the Chinese government. DFAT states that ‘the CCP has little tolerance for public dissent on a wide range of matters considered politically sensitive’ including religious unrest. The UK Home Office report on Christians in China71 has outlined the increase in restrictions on Christian churches in China since 2013, but notes that:

the situation for most Christians has not changed significantly, with the risk of treatment amounting to persecution for expressing and living their faith still being very low.

1. A Canadian report states that ‘according to sources, while Protestant house churches are not officially recognized by the state, many are able to operate as long as they strike a careful balance: operating outside the CCP’s religious framework, while trying to avoid charges that they serve as vectors for Western influence’ (Palladium 19 Aug. 2019) or they are ‘careful, [and] they hide,’ despite the likelihood that the authorities are aware of their existence, as ‘they often let them be’ if they ‘keep quiet and keep a low profile’ (Research Fellow 3 Sept. 2021). Sources noted that the authorities treat house church leaders differently from house church members (Research Fellow 3 Sept. 2021; Lecturer 17 Sept. 2021; Professor 10 Sept. 2021), the leaders being treated more ‘harsh[ly]’ than lay members (Lecturer 17 Sept. 2021; Professor 10 Sept. 2021). The Professor explained that this represents ‘a strategy to try to win over the vast majority of people and isolate those with greater responsibility, and to make a public example out of them’ (Professor 10 Sept. 2021).72 DFAT also ties the risk of persecution to the type of practice and connections with other issues:

   Overall, an individual’s ability to practise religion depends on whether the individual worships 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.73

1. This information collectively suggests that church leaders, activists or evangelical practitioners are subject to greater scrutiny and harassment than ordinary members of house churches.74 The Tribunal is not satisfied that the applicant falls in these categories for

68 Freedom House, ‘The Battle for China’s Spirit – Religious Revival, Repression, and Resistance under Xi Jinping’, February 2017.

69 Freedom House, ‘The Battle for China’s Spirit – Religious Revival, Repression, and Resistance under Xi Jinping’, February 2017.

70 Department of Immigration and Border Protection, COISS, ‘Protestants in China’, August 2015.

71 UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019, p.2.4.12.

72 Research Directorate, Immigration and Refugee Board of Canada, ‘China: Treatment of members of house churches [also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches], including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse’, 2019–October 2021.

73 Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

74 See also Eurasia Review, ‘China: Concerns Grow Over Health Of Jailed Protestant Pastor In Sichuan’s Chengdu’, 21 June 2021; Asia News IT, ‘Shenzhen, two Protestant pastors and 8 faithful arrested during a liturgical service’, 25 June 2021; Christian Daily, ‘CCP Police Brutally Attacks Chinese Pastor Who Only Wanted To Visit Fellow Christians’, 31 May 2021.

reasons set out earlier. Furthermore, the information from DFAT indicates that broadly speaking, religious practice in China is possible as long as such practices do not challenge the interests or authority of the Chinese government. The Tribunal does not accept that the applicant has displayed a tendency to challenge the interests or authority of the government in his practice in China or Australia. Given the millions of practitioners, the chance of persecution is very minimal. As discussed with the applicant at hearing his grandmother and other relatives who practised Christianity were not harmed and generally people can worship without harassment. As referred to earlier in this decision, the UK Home Office’s ‘Country Information and Guidance – China: Christians’ reports that the situation for most Christians has not changed due to intensification of restrictions on the religion:

[I]n general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible.75

1. This information was put to the applicant at the Tribunal hearing. He responded that only registered churches can operate. While there is evidence that the government is trying to register all churches, this does not mean that members of unregistered churches are targeted for harm if they have no other profile and worship in small house churches, and as set out earlier, the evidence suggests otherwise.

2. The applicant also said that he would be targeted because his friend [Brother A] practised Falun Gong and there would be suspicion that he was a Falun Gong practitioner. He said that China is strict regarding Falun Gong. For reasons set out earlier, the Tribunal does not accept [Brother A] practised Falun Gong in the presence of the applicant. The Tribunal is not satisfied that there is a real chance of serious harm because [Brother A] allegedly practised Falun Gong.

3. The applicant also mentioned that there are local variations in how the authorities treat Christians. The Tribunal acknowledges that the harassment, discrimination, and intimidation of churches in China varies by region. However, the Tribunal must consider whether there is a real chance of serious harm for the applicant rather than basing findings on conjecture or surmise (see MIEA v Guo (1997) 191 CLR 559). The Court in that case stated that: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well- founded if it is merely assumed or if it is mere speculation.’

4. The evidence does not support a finding that this applicant, who is not a leader, activist, or proselytiser, would face serious harm from the authorities in Shandong province. The information indicates that there are huge numbers of Protestants in China, and that generally Protestants in registered churches and unregistered churches can worship unhindered by the government, although some churches have been affected by cross removal, closures and other forms of intimidation, and some churches have been shut down.76 Taking all these factors into account and given sources which indicate that most house churches operate without harassment of their congregation the Tribunal is not satisfied that there is a real chance, in the sense of a substantial and non-remote chance77 of serious harm for this applicant. Considering the way the applicant has worshipped in China and Australia, the Tribunal is also not satisfied that he would be required to modify his behaviour in any way. The Tribunal has not accepted, for reasons set out earlier in this decision, that the applicant was arrested or has any profile such that he would be of interest to the authorities on return. He is a private practitioner who has not been involved significantly in the church. The Tribunal has accepted that he has occasionally attended church in Australia and may

75 UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019.

76 United States Commission on International Religious Freedom, ‘International Religious Freedom Annual Report 2023’.
77 Chan v MIEA (1989) 169 CLR 379.

occasionally and irregularly attend church in China as he has done in Australia. The sources do not suggest that a citizen who has worshipped at a church in Australia will be at risk of harm when returning to China.78 The Tribunal is not satisfied, given his low profile and irregular worship, that he would suffer serious harm if he attended a registered church or unregistered house church in China, notwithstanding the restrictions and controls placed on churches as discussed above. The Tribunal is not satisfied that he would be arrested, killed, assaulted or otherwise seriously harmed or that he would be asked for names or asked about Falun Gong.

1. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his religion and/or imputed political opinion, or any of the other reasons set out in the legislation, were he to return to China in the reasonably foreseeable future.

Does the applicant meet the complementary protection criterion?

1. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.

2. The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B) of the Act, which are extracted in Attachment A to this decision.

3. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

4. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that the applicant faces a real chance of serious harm, for reasons set out earlier in this decision. For the same reasons, based on the reasoning in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation were the applicant to be removed from Australia to China.

5. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk he will be arbitrarily deprived of life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

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

CONCLUDING PARAGRAPH

78 See for example, Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.

1. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

DECISION

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

   Jane Marquard Member

ATTACHMENT A – Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H  Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

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

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of

serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…