1910619 (Refugee)

This matter concerned an application for Protection visas by a husband and wife, who claimed to be devout underground Protestant Christians fleeing persecution in China. A delegate of the Minister for Home Affairs had refused their applications, finding that while they were Christians, there was no evidence they had experienced difficulties leaving China or were of adverse interest to Chinese authorities, and therefore no real chance of suffering serious or significant harm upon return. The Administrative Appeals Tribunal (the Tribunal) was asked to review this decision.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a Protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as refugees, or alternatively, under section 36(2)(aa) as persons facing a real risk of significant harm upon removal from Australia. The Tribunal was also required to consider the wife's eligibility as a member of the same family unit as the husband, pursuant to section 36(2)(b). In its determination, the Tribunal was mandated to consider relevant Ministerial Directions, including the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines', as well as country information.

The Tribunal found inconsistencies between the husband's written claims and his oral evidence, particularly regarding past harm. However, it found his oral evidence regarding his conversion to Christianity, his beliefs, and his experiences in China to be forthright, persuasive, and genuine. The Tribunal accepted that he had attended an underground Protestant church and converted to Christianity, and had regularly attended services until his departure from China. While not satisfied that the wife met the criteria for protection in her own right, the Tribunal found her to be a member of the same family unit as the husband. Consequently, the Tribunal remitted the matter for reconsideration, directing that the husband be found to satisfy section 36(2)(a) and the wife to satisfy section 36(2)(b)(i) based on her family unit membership.