1910619 (Refugee)

[2024] AATA 4411

1910619 (REFUGEE) [2024] AATA 4411 (16 SEPTEMBER 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910619

COUNTRY OF REFERENCE:                   China

MEMBER:Shahyar Roushan

DATE:16 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 16 September 2024 at 1:50pm

CATCHWORDS
REFUGEE – protection visa – China – religion – underground protestant Christians – regular, low-level attendance and activities – some inconsistencies between written claims and oral evidence – forthright, genuine and persuasive evidence by husband – supporting statements and documentation – unreliable evidence by wife – limited attendance and knowledge and no commitment – member of family unit – young Australian-born child not an applicant – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3), (4)(b), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicants, who are nationals of China, are husband and wife. They arrived in Australia [in] October 2017 on Visitor visas.

2. On 14 November 2017, the applicants lodged an application for a Protection visa. Both the first named applicant (the applicant) and the second named applicant (the applicant’s wife) made claims for protection. These claims, however, were expressed in identical terms (outlined further below).

3. On 12 April 2019, a delegate for the Minister of Home Affairs refused to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

4. According to the Protection visa application, the applicant is [Age] years old. He resided at a single address in Chengdu, Sichuan Province. After completing middle school in [Year], he attended ‘[named University]’. At the same time, he commenced working as [an ‘occupation’] at [Employer]. He was employed in this position until his departure from China in October 2017. In 2017, the applicant visited [three countries].

5. The applicant’s wife is [Age] years old. She was also born in Chengdu, where she attended primary and middle school. She later studied [subject] from [Year] to [Year].

6. In response to questions in relation to their reasons for claiming protection, the applicants made the following claims:

   ·They are both ‘devout underground’ Christians. Through ‘the Lord’s teachings’ they felt ‘happy’ and ‘made many friends’. However, there is no ‘freedom of religious belief’ under the Chinese government. The Chinese Communist Party ‘combats all underground religious belief’. Many of their ‘church friends’ were ‘caught’ while attending underground gatherings, and they were ‘tortured and insulted’ in detention. The police sought to arrest them because they are ‘devout underground’ Christians. They ‘continually’ visited their house and ‘harassed’ their family.

   ·They escaped to Australia with the help of a ‘friend’ to practise their religion freely. They are unable to relocate, as China is a ‘one-party dictatorship’ that ‘forbids the existence of underground Christianity’. The applicants are regarded as ‘heretics’, so if they were to return to China, they would be arrested, ‘tortured’ and ‘insulted’.

7. Department records indicate that the applicants were invited to attend an interview on 12 April 2019, but they failed to attend.

   The delegate’s decision

8. As already noted, a delegate of the Minister refused the Protection visa application. The delegate accepted that the applicants are Christians. However, the delegate found that there was no evidence to indicate that the applicants had any difficulty leaving China or that they were of any adverse interest to the Chinese authorities. The delegate was not satisfied that there is a real chance or a real risk that the applicants would suffer serious or significant harm on return to China. The delegate was not satisfied that the applicants were refugees as defined under s 5H(1) of the Act and found that they were not persons in respect of whom Australia has protection obligations under s 36(2)(a). The delegate was also not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   The review application

9. On 29 April 2019, the applicants applied for a review of the delegate’s decision.

   The hearing

10. The applicants appeared before the Tribunal on 6 May and 19 June 2024 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicants’ oral evidence at the hearings is referred to in the Tribunal’s analysis below.

11. The applicants submitted a number of documents in support of their review application, including:

    ·Copy of their marriage certificate;

    ·Copy of their son’s birth certificate, indicating that he was born on [Date];

    ·Copies of ‘Vows for Adult Baptism’, indicating that the applicant and his wife were baptised at the [Church] [in] March 2024;

    ·Photographs of the applicants attending church activities;

    ·Two letters of support from [Rev A] of [Church]; and

    ·Letters of support from fellow parishioners.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

12. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

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

14. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

15. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.

16. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

17. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, findings and reasons

18. For the following reasons, I have concluded that the decision under review should be remitted for reconsideration.

    The applicant

19. There were some inconsistencies between the applicant’s claims as recorded in his Protection visa application and his oral evidence at hearing. For example, in his Protection visa application, the applicant had claimed that many of his ‘church friends’ had been arrested and mistreated in China and that the police had sought to arrest him. At the hearing, he stated that on one occasion the police had come to a church gathering he was attending. They had ‘evicted’ everyone and recorded their personal information. He made no other claims of past harm and did not seek to exaggerate his experiences. Despite the discrepancies, I found the applicant’s oral evidence and his responses to my questions in relation to his conversion to Christianity, his Christian beliefs and his experiences in China to be forthright, persuasive and a genuine expression of his lived experiences.

20. I accept that the applicant was introduced to an underground Protestant church in China through a [colleague] in 2014 and that he converted to Christianity a year later. I accept that he regularly attended sermons and church meetings in his locality until his departure in China. I further accept his evidence that, after he arrived in Australia, it took him some time to find a church he could regularly attend. I am prepared to accept his evidence that this was due to his irregular employment and ‘unstable’ life when he first arrived and further interruptions as a consequence of the COVID-19 pandemic. I accept that he was eventually able to attend the [Church], where he was also baptised, on a regular basis.

21. I accept that the applicant regularly attends Bible study classes and proselytises his faith. His evidence in this regard was commensurate with his relatively sophisticated understanding and doctrinal knowledge of Christianity as demonstrated in response to my questions at the hearing. The applicant’s evidence of his church attendance and commitment to Christianity was supported by a number of photographs and letters from his fellow parishioners, including a letter from [Rev A], attesting to the applicant’s church attendance and his commitment to Christianity. I accept that these letters reflect the genuine views of their authors in describing the applicant’s faith, devotion and activities. I am satisfied that the church activities and conduct engaged in by the applicant in Australia have not been for the sole purpose of strengthening his claim to be a refugee. 

22. I accept the applicant’s evidence that if he were to return to China he would continue to practise Christianity at the same level as he has been doing in Australia. I accept that he would seek to attend underground churches and proselytise his faith. The applicant also spoke persuasively about his reasons for not wishing to practise in officially sanctioned Protestant places of worship (Three-Self Patriotic Movement) in China. He repeatedly stated, and I accept, that he did not consider official churches in China to be ‘legitimate’ and he objected to church officials continuously praising the leaders of the Chinese Communist Party and raising the Chinse flag.

23. The sources consulted indicate that followers of underground churches likely face risks of persecution, restrictions on religious activities, and pressure to conform to state control.

24. According to DFAT, under the leadership of President Xi Jinping, China has embarked on a concerted effort to ‘sinicise’ religion within its borders. This campaign, spearheaded by the Party’s United Front Work Department and implemented through state-approved religious organisations, seeks to ensure that religious practices in China align with the Party’s vision of a ‘correct’ version of faith. The process involves emphasising principles such as patriotism, party leadership, and loyalty to the Party, while discouraging or prohibiting doctrines deemed incompatible with Party supremacy. Religious elements, including hymns, clerical attire, and architecture, may be modified to better reflect Chinese cultural, aesthetic, or political traditions. New religious regulations and oversight bodies have been established to strengthen government control over various aspects of religious life, such as the appointment of religious leaders, financial transparency, and the restriction of religious activities to government-authorised venues. The Party also aims to minimise links with foreign religious organisations and exert greater influence over religious doctrine taught within China. Religious groups that refuse to submit to the authority of state-sanctioned organisations risk being shut down, and some religious leaders have faced charges of subverting state power. The 2018 Regulations on Religious Affairs include broad prohibitions against using religion to ‘split the country,’ ‘undermine ethnic unity’ or ‘engage in terrorist activities’, although the implementation of these regulations varies depending on local authorities’ actions and motivations.[1]

    [1] DFAT, DFAT Country Information Report – China, 22 December 2021.

25. DFAT has noted that most Protestants worship in unofficial ‘house’ churches and that these ‘underground’ churches may literally be in a house or a commercial office space. Under the sinicisation of religions campaign, underground movements, including xie jiao, are subject to heightened surveillance. Religious buildings may have CCTV cameras installed to monitor congregations, and virtual religious meetings can be censored or closely watched. Across China, regulations prohibiting proselytising are generally enforced, and religious education for individuals under 18 is prohibited. Bibles are increasingly difficult to obtain, and Bible references are censored online. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of President Xi Jinping in some churches. DFAT assessed that:

    Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk.[2]

    [2] Ibid.

26. Various other sources report on the arrest and detention of members or leaders particularly of unregistered house churches, criminal prosecutions, including for fraud offences, and efforts to hinder or repress Christian practices.

27. The most recent US Department of State International Religious Freedom Report for China provides the following information on the treatment of members of underground religious groups:

    Authorities continued to arrest and otherwise detain leaders and members of religious groups, often those connected with groups not registered with the state-sanctioned religious associations. Authorities reportedly used vague or insubstantial charges, sometimes in connection with religious activity, to convict and sentence leaders and members of religious groups to years in prison. Due to the lack of transparency regarding law enforcement’s persecution of religious followers, estimates of those imprisoned during the year for their religious beliefs ranged from the low thousands to more than 10,000.

    …

    Religious rights advocacy groups and media reported the government continued to prohibit or hinder the activities of religious groups not affiliated with the state-sanctioned religious associations, including unregistered Protestants, Catholics, Muslims, Buddhists and others. At times, authorities said they shuttered a gathering because the group or its activities were unregistered; at other times, the place of worship lacked necessary permits. Local authorities tacitly allowed some unregistered groups to operate, but in other cases, authorities required unregistered religious groups to disband, leaving their congregants with the sole option of attending services under a state-sanctioned religious leader.[3]

    [3] US Department of State, 2023 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang), 26 June 2024,

28. The United States Commission on International Religious Freedom (USCIRF) reported in 2022:

    Persecution of Protestant house church Christians also intensified in 2022. The government carried out a nationwide crackdown on house churches by harassing, detaining, physically abusing, and sentencing Protestants who refused to join the state-controlled Three-Self Patriotic Movement.[4]

    [4] US Commission on

29. In a January 2023 submission to the United Nations Committee on Economic, Social and Cultural Rights, Amnesty International mentioned reports of ‘crackdowns’ on house churches across China since 2018, ‘particularly in Henan, Zhejiang, Guangdong and Heilongjiang provinces’.[5] They noted authorities are reported to have ‘removed crosses and Christian slogans from church buildings, confiscated or vandalized church property, ordered churches to close, and questioned church leaders and members’.[6] Amnesty International’s annual report also refers to the ‘arbitrary arrest and detention’ of house church leaders and practitioners in 2022, among other religious adherents.[7] Similarly, ChinaAid has reported the arrest and detention of house church leaders and members, criminal charges (particularly on fraud offences) and legal proceedings, harassment of church members and leaders, removal of Christian iconography, and the banning or closure of house churches.[8]

    [5] Amnesty International, China: Submission to the UN Committee on Economic, Social and Cultural Rights (2023), 17 January 2023,

    [6] Ibid.

    [7] Amnesty International, Amnesty International Report 2022/23: ‘The state of the world’s human rights’, 27 March 2023,

    [8] ChinaAid Association, ‘ChinaAid’s Annual Persecution Report 2022’, 14 February 2023, See also Dui Hua Foundation, Prisoner Updates 2022 #6, 1 September 2022, and

30. On the basis of the evidence before me, I find that there is a real chance that the applicant would be subjected to harassment, arrest, detention and mistreatment by the authorities if he were to return to China. I find that this amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I am satisfied that the real chance of persecution relates to all areas of China. I find that the essential and significant reason for the persecution feared by the applicant is his religion. I am further satisfied that the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution as such modification would be contrary to the requirements of s 5J(3) of the Act. As the applicant’s fear of harm is from the authorities, I am satisfied that effective state protection against the harm he fears is not available to him in China. I find that the applicant has a well-founded fear of persecution. I find that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.

    The applicant’s wife

1. The applicant’s wife did not impress me as a reliable witness. She did not know on what basis she had applied for protection or what was recorded in her Protection visa application form. When I asked why her husband had applied for protection, she stated she did not know as he had not discussed it with her. I found this response particularly problematic. It was only after I pressed further by asking if she has done anything in Australia that might cause problems for her in China that she said she has ‘participated’ in Christianity.

2. Contrary to the claims made in her Protection visa application, the applicant’s wife stated that she became a Christian in Australia in 2022 due to ‘the influence’ of her husband. I accept that the applicant’s wife has attended the [Church] with her husband. I also accept that she was baptised earlier this year. However, I am not satisfied that the applicant’s wife shares her husband’s level of conviction or commitment to Christianity. I base this view on her highly unsatisfactory evidence at the hearing in response to simple questions regarding the basic facts and tenets of Christianity. For example, when I asked her ‘who is Jesus’ she said ‘he is God’. When I asked for more information, she stated she has been looking after her child and her knowledge of Jesus is limited but she prays silently. She also did not know who the mother of Jesus Christ was or why Christians celebrate Christmas. When I expressed my concerns regarding her evidence, she stated that she was nervous. I do not accept this explanation to satisfactorily address the applicant’s wife’s level of knowledge, particularly in view of her claim that she has been attending church services and other activities since 2022.

3. I am not satisfied that the applicant’s wife is a genuine convert to Christianity or that she is committed to Christian beliefs and practices. I do not accept that she would practise Christianity in any form if she were to return to China. Therefore, I do not accept that there is a real chance that she would be subjected to serious harm in China for the reason of her religion or any other reason listed under s 5J(1)(a). I find that she does not have a well-founded fear of persecution in China. Similarly, I do not accept that there is a real risk that she would be subjected to significant harm for reasons related to her religion or any other reason. I find that she does not satisfy the criterion set out in s 36(2)(aa) of the Act.

   Conclusions

4. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

5. I am not satisfied that the applicant’s wife is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, I am satisfied that she is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the applicant’s wife will be entitled to a Protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

6. The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

   (ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Shahyar Roushan
   Deputy President

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

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

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

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

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

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

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

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K    Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

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

   5L    Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   …

   36     Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

   (2A)A non‑citizen will suffer significant harm if:

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

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

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

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

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

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

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

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

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

   …

   
   

International Religious Freedom (USCIRF), US Commission on International Religious Freedom Annual Report 2023, 1 May 2023,

Human Rights Watch, Human Rights Watch World Report 2023, 12 January 2023,