1918260 (Refugee)
[2025] ARTA 773
•9 January 2025
1918260 (REFUGEE) [2025] ARTA 773 (9 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1918260
Tribunal:Senior Member J Marquard
Place:Sydney
Date: 9 January 2025
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 09 January 2025 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – threats from money lender – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), s 56
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth)
Migration Regulations 1994 (Cth), Schedule 2CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248
Randhawa v MILGEA (1994) 52 FCR 437
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
The applicant has sought review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 14 June 2019 to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is a woman from [Town 1], Jiangsu, China.
She first arrived in Australia [in] June 2018 on a FA-600 Visitor visa. She applied for a protection visa a few months later, on 28 August 2018. She claimed in her application that she has a well-founded fear of persecution in China for reasons of her Christian religion.
A delegate of the Department of Immigration and Multicultural Affairs (the Department) refused to grant the applicant the visa on 14 June 2019.
The applicant lodged the application for review of the decision with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The application for review is now before this Tribunal for review.
If a proceeding commenced in the AAT but was not finalised before 14 October 2024, such as this one, it must be continued in the Tribunal in a manner that is efficient and fair. Under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), applications for review that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The transitional provisions permit the Tribunal to continue and finalise the proceedings commenced under the AAT.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] 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.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] 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.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] 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’.
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.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[5] or
b.qualify for complementary protection (the complementary protection criterion);[6] 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).[7]
[5] Section 36(2)(a) of the Act
[6] Section 36(2) (aa) of the Act.
[7] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
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.
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.
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 for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct. (s 5J (4)). Indicative examples of serious harm are set out in s 5J (5) of the Act.
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)) although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.
Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s 5J (6) of the Act).
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
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.
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.
EVIDENCE CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the application before the Department, migration records and new evidence before this Tribunal.
The Tribunal has also considered independent information about China including the Department of Foreign Affairs and Trade (DFAT) Report prepared for protection status determination purposes.[8]
[8] These are also mandatory considerations under Direction No 84.
The applicant was invited to appear before the Tribunal on 29 May 2024 to give evidence and present arguments. Due to a late request for documents by the applicant, the hearing was adjourned to 22 July 2024. A further postponement had to be made and the matter was adjourned until 19 September 2024.
On the morning of the hearing on 19 September 2024 the representative, Grace Chen, from Aussie Sino Angel, contacted the Tribunal to ask if there was a hearing scheduled that day. She was advised that there was a hearing scheduled and she said that she had not received correspondence about the hearing. An officer from the Tribunal referred to the letter of invitation to hearing, which she agreed she had received. It was also pointed out to her that two SMS reminders had been sent to the last notified telephone number, but these had been undeliverable. The representative told the Tribunal that the applicant was not feeling well and was not able to participate in the hearing. The next day a medical certificate was provided. The certificate stated she was unfit for attending a hearing on 19 September 2024. The applicant was granted an adjournment of the hearing until 30 October 2024. She was advised that any further adjournment would only be granted for a good reason. The day before the hearing on 30 October 2024, the Tribunal was advised that the applicant could not attend due to ill-health. Later a medical certificate was provided stating ‘surgical booking’ for [a named] Clinic admission date 25 October 2024 for [medical procedures]. The Tribunal noted that the applicant would have been aware of this date for some time but did not advise the Tribunal. Nonetheless, considering the seriousness of the implications of refusing the adjournment, the Tribunal granted her request for a further adjournment, advising her that no further adjournments would be granted unless there was a good reason.
A new hearing was scheduled for 21 November 2024. As the applicant resides in [Town 2], on 5 November 2024, she was provided with a link to join a video conference through Microsoft Teams. The night before the hearing her representative advised that she did not have a computer. This was clearly not enough time for the Tribunal to arrange for her to visit a facility where she could have used their video conferencing. At the Tribunal hearing, the Tribunal reminded the representative, Ms Grace Chen, of s56 of the Administrative Review Tribunal Act 2024 and Para 2.2 of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024, which require parties and their representatives to use their best endeavours to assist the Tribunal in achieving the objectives of the Act and to assist the Tribunal to make the correct or preferable decision.
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.[9]
[9] The Tribunal 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.
FINDINGS AND REASONS
The Tribunal has determined that the decision under review should be affirmed.
The reasons for this are set out below.
Nationality
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’.
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.
The applicant has a passport from China, issued in 2014. The Tribunal is satisfied on the basis of her passport and testimony that the applicant is a national of China, and that China is the receiving country for the purposes of the legislation.
Personal particulars and background
The applicant is a woman from [Town 1], Jiangsu, China.
The information about the applicant’s employment background provided in her application was incorrect, and she said at the Tribunal hearing that she could not remember why she provided incorrect information. She said that the address and school details provided in the application were also incorrect. The applicant’s representative submitted that her former representative was responsible for this. Notwithstanding these errors, the Tribunal accepts the information the applicant provided about her employment and other personal particulars at the Tribunal hearing, as it was the most current information provided and was not material to any issue.
The applicant stated in her application that she resided in [Town 1] from [specified year] to 2018. She confirmed this at the Tribunal hearing, saying that she lived with her parents in their house. Her [specified family members] also lived in the house. She is unmarried.
The applicant stated in her application that she speaks to her parents in China twice a week. At the Tribunal hearing she confirmed that her mother is still living in the same house that she was living in in China. [One sibling] lives in a different house now, and [another] married and is living in another village. The applicant told the Tribunal that she speaks to her [specified family members] often.
She said that her father worked as [an occupation 1] when she was growing up and her mother was unemployed. [A specified sibling] is also [an occupation 1].
The applicant stated in her application that she was at school until [specified year] and after this worked [at Factory 1] from [year] to 2018. At the Tribunal hearing she said that she was [an occupation 2] in China and sold [products 1] for a small private [shop]. She was asked if the name of the business she worked for was [Factory 1] and she said that she did not work at a [factory]. She was asked why she said in her application that she worked for [Factory 1] from [year] to 2018. She said that she saw that the form required a name, so she just filled in any name, even though it was not correct. She said that she cannot remember why she used a name that was incorrect.
Did the applicant and her family attend church in China?
The Tribunal is satisfied that the applicant and her family attended church in China as she has provided information about this consistently, although she did not have detailed knowledge of the church. She was able to describe baptism in a river, and also spoke spontaneously of the participation of other family members in the church.
At the Tribunal hearing the applicant said that her mother is a Christian. She was asked by the Tribunal if she knew what type of Christianity she practises, and she said that she is a ‘Jesus Christian’.
She claimed that her maternal grandparents were also Christians. They attended a church in the village their whole lives. They went to a different church to the one her mother attends.
The applicant told the Tribunal at hearing that her mother and brother go to a church which is close to their village. She said that her mother has been going to that church her whole life, as has her brother. The applicant told the Tribunal that when she was living in China she also went to this church. Asked for the name of the church, she said that it is ‘[Church 1]’. She said that a few hundred people attend the church in a church building every week. She went to the church every Saturday. She said that she did not engage in any other activities for the church.
She said that currently her mother and brother go to church on a Saturday and her mother does all kinds of activities for the church, such as gatherings twice a week and baptism ceremonies. She said that they have a pastor.
She said that her [sister] is a pastor in another village, where she was married.
The applicant told the Tribunal that she was baptised in the village church at the age of about ten. Asked what happened at the baptism, she said that they went to a river and the pastor and priest were there and they pressed her head in the river. Asked what the meaning was of the baptism, she said that they all believe in Jesus and need to listen to him and follow him in all they do.
The Tribunal is satisfied based on this evidence that the applicant and her family attended a church in China, given the consistency of the evidence and the fluid manner in which she discussed her family’s participation. Although she did not have detailed knowledge, this is not uncommon for some religious practitioners.
Reasons for travel to Australia
The Tribunal accepts the evidence provided by the applicant at the Tribunal hearing that she travelled to Australia to visit a friend, because she had heard positive things about Australia and because she wanted to get away from a lender who had lent her money and was asking for it to be repaid. Although the information about the money lending was not provided to the Department which would have been expected had it been a reason for departure, and no loan documents were provided, she provided evidence about the loan coherently and openly to the Tribunal. It is also the most contemporaneous evidence provided for the reasons to travel. Furthermore, clearly, as established by the incorrect employment information in her application, the application, for whatever reason, did not accurately reflect all of her evidence.
The Tribunal accepts that the applicant travelled to Australia on her own savings as a tourist. She explained to the Tribunal at the hearing that around 2014 she applied for a passport ‘to see the outside world’. She said that a friend in Australia told her about applying for visitor visas to Australia, and her friend told her that Australia was ‘great’. Her friend referred her to someone to help her with her visa application.
The Tribunal accepts her evidence that she travelled to Australia to see her friend and because she had heard positive reports about Australia.
The Tribunal also accepts that part of the reason she travelled was to escape having to repay a loan. When asked why she left, in addition to commenting on the positive reports her friend had given her about Australia, she also said that her life in China was ‘not good’. Asked by the Tribunal to elaborate, she said that she owed people money, and was regularly being harassed to re-pay.
She explained further to the Tribunal that she owed money to a lender, who she referred to as a ‘friend of a friend’. She said that she had to borrow money because she ‘did some virtual currency with someone online’. She borrowed [amount] RMB. She was asked if she could provide copies of the loan documents. She said that she did not have loan documents as the loan agreement was entered into privately. She said that she repaid around [portion] RMB of the loan. She said that the lender was asking her for money owed, and she wanted to get away from him as she did not have the money. She said that the lender harassed her and her family. Asked how she was harassed, she said that the lender came to argue with her and ‘hindered her everyday life’.
She was asked at the Tribunal hearing why she did not continue to pay the money owed. She said she ‘needed to live my life and I did not have much’. She did not ask her family for assistance as they did not have much money.
She was asked at the Tribunal hearing if there was any other reason, besides being harassed by a lender, and visiting her friend, that she left China. She said that there was no other reason.
She was asked if she could return to China and get a job and pay the lender back. She said that the jobs pay [amount] RMB a month which is only enough to eat and live and not enough to pay them back. Asked if she has been paying them back from Australia, she said that she has paid a little back but is only the interest, and she still owes them the principal. The interest was [amount] RMB each year.
Asked if there is any other reason she feared returning to China, she said that there is not.
Was the applicant abused and harassed by police and at work for being a Christian, did she depart for this reason, and does she fear returning to China on the basis of her religion?
The applicant claimed in her application for the visa that:
‘I left China because i could not exercise my human right to practice Christianity in public. I could not preach the word of Christ or attend any church which was outside the domination of state control. I was being harassed by the police and the local authorities and was being treated badly at work for being Christian as well. I lost confidence in myself and dignity as i was considered a stranger in my own community. I felt threatened because i refused to give Christianity and this is the main reason why i am seeking protection from the Australian government. I am in need to be protected from this ill treatment and feel safe in my life.
I was abused and harassed by the police and i was threatened by them as well. If i returned to my country i will be religiously persecuted by the Chinese government for refusing to give up my right of exercising the Christian religion as i please and freely.’
The Tribunal is not satisfied that the applicant was abused and harassed by police or authorities in China for being a Christian or that she was harassed at work for this reason. The Tribunal is not satisfied that she departed China for reasons of her Christianity or that she fears returning for reasons of her Christianity.
The reasons for this are as follows.
Firstly, as set out earlier in this decision, when asked at the Tribunal hearing why she travelled to Australia, she said that it was to visit a friend, because she had heard Australia was ‘great’ and because she wanted to get away from a creditor who was harassing her for money that she owed him. She told the Tribunal there was no other reason she left China or that she feared going back to China. If she had left China for reasons of harassment or abuse by the authorities due to her Christianity, it is reasonable to assume that she would have told the Tribunal this when asked why she departed Australia. If she feared returning to China for reasons of her Christianity, she would have told the Tribunal this when asked.
It was only later in the Tribunal hearing when it was explained to her that the refugee criteria in the legislation require persecution for race, religion, nationality, membership of a particular social group or political opinion, that she said that she believes in Jesus and sometimes they were not ‘allowed to do that’. The Tribunal asked the applicant why, when she had been asked earlier in the hearing about her fear of returning to China, she said that she feared returning because she owed money and there was no other reason. She responded that sometimes she was not allowed to practise. This did not explain why, when asked the direct question about her fear of returning to China, she did not refer to her religion.
Secondly, as referred to above, at the Tribunal hearing the Tribunal put to her that earlier in the hearing, she had told the Tribunal that she came to Australia because she was being harassed by a lender, to see her friend and because she had heard positive things about Australia, but this was different to the claims made in her application. In her evidence to the Tribunal, she had not mentioned fleeing China due to her religion. Further, when the Tribunal had asked her what she feared about returning to China she said that she feared returning because the lender would harass her for money and there was no other reason she feared returning. When the Tribunal put to her that it did not appear that she was claiming persecution for one of the reasons set out in the legislation, she then said that she suffered some discrimination, but she did not refer to being harassed or abused by authorities.
When these matters were put to the applicant at the Tribunal hearing, she responded that ‘both are true’ and she told this to ‘the person who wrote the application’. She said ‘that happened’ but she did not know it was important. The Tribunal put to her that if police had harassed or abused her and she feared returning for this reason it is likely that she would have told the Tribunal about it. She said that she was too nervous. She said that the police did harass her, they blocked the entry and did not allow them to get in. She said that this happened twice. The applicant’s representative, Ms Chen, referred to the assistance of an agent in the applicant’s application. Ms Chen said that she had searched the agent’s name and she was neither a lawyer nor a migration agent. This agent did not inform the applicant about the Department interview. Explaining this to the Tribunal, the applicant said that a friend referred her to a ‘lawyer’ who did not keep her informed properly about what was happening, and this person may not have been a lawyer or agent. The applicant confirmed that she knew what was in the application, but only noticed later when her current representative showed her, that her school and address details were wrong. She noted that her former representative also delayed putting in the application for review.
The Tribunal accepts that the agent may have inaccurately reflected some of the information provided by the applicant to the agent in the application. However, the Tribunal did provide the applicant with an opportunity to provide evidence on the reasons she feared returning to China and to relate what happened to her in China. Although provided with this opportunity, she did not mention any harm suffered due to her Christian beliefs and said that she feared returning for reasons of owing money.
The Tribunal accepts that nervousness may impact on memory. Research indicates that memory is selective and fragmentary[10] and can be impaired by emotion.[11] Applicants in asylum cases may face particular difficulties in remembering events and may be nervous and anxious, as indicated by the applicant in this case. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 referred to these difficulties as follows:
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.
[10] Prof U Ecker, ‘Memory: Misconceptions, University of Western Australia, Australian Academy of Law, ‘Memory, Misconceptions, Mechanisms, Fallibility’.
[11] Prof U Ecker, ‘Memory: Misconceptions, University of Western Australia, Australian Academy of Law, ‘Memory, Misconceptions, Mechanisms, Fallibility’.
Presentation of evidence by asylum seekers 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 due to lapse of time or other reasons.[12]
[12] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >
The Tribunal has taken the ‘reasonable approach’ to fact-finding, given the various impacts on presentation of evidence, as supported in numerous judgments[13]. 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.
[13] See for example Full Federal Court case in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133.
The Tribunal acknowledges that the applicant may have been nervous, as she claimed, and that this could result in her forgetting details, such as times, location and sequence. However, the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant (Randhawa v MILGEA (1994) 52 FCR 437). The Tribunal does not accept that the applicant would not have told the Tribunal about being harassed and abused by authorities for reasons of her religion if this did happen, as presumably these would have been significant events in her life. The Tribunal does not accept that she would not be able to recall the reasons that she departed China, if they were in fact the reasons, as this would have been an important aspect of her life and also was central to her claims for protection. Importantly, the Tribunal does not accept that nervousness would prevent her from providing the true reasons for fearing returning to China, as her fears would presumably be dominant in her current thinking. She did not tell the Tribunal about being abused or harassed or threatened by authorities. She did not say she departed China because of this, and she did not say she feared returning for fear of authorities due to her religion, despite being asked direct questions about these matters.
The Tribunal does not accept therefore that the applicant was abused, threatened or harassed by authorities in China, for reasons of her Christianity or that she left China for this reason or that she fears returning to China for this reason.
Has the applicant practiced Christianity in Australia?
The applicant did not claim in her application that she had practised Christianity in Australia. She was asked at the Tribunal hearing if she is a practising Christian. She said that she first went to a church in Australia in 2022 and still attends this church.
The Tribunal accepts that the applicant has occasionally attended church in Australia but does not accept that she is a devoted Christian, for the following reasons.
She did not know details about the church she attends and is not heavily involved in the church. She said that it is a Chinese church, and she attends with other people, but she did not know the name of the church. She did not know the name of the pastor. She said that she goes to church once a week but is not involved in any other activities for the church.
Although claiming in her application that she left China because of persecution as a Christian, she did not visit a church in Australia until 2022 although she arrived in Australia in 2018. She was asked at the Tribunal hearing why she waited from 2018 to 2022 to go to church in Australia. She said that she ‘did not know a soul’ and she could not find a Chinese church. Asked if she looked online for a church, she said that she did not know how to search. As she had earlier referred to a friend in Australia, the Tribunal asked her if she had requested that this friend help her locate a church. She said that she met someone in 2022 who helped her find a church. This did not adequately explain whether she had asked her friend to help her, or why she took so long to find a church if in fact she was a devoted Christian practitioner.
She also appeared to have little knowledge of the Bible, although this was not explored thoroughly at the hearing, and the Tribunal accepts that Christians can have varying levels of knowledge. She was asked if she had a favourite Bible story and she said that she did not understand the Bible and her mother just read stories to her. She was asked what Christianity means to her and she said that Christians must do good deeds and be good people. In this aspect she was accurate, but she did not provide any more details about Christian beliefs or practices. She did not have knowledge about the reasons for Christmas, although confirming that she celebrated Christmas. She said that last year she went to the service at the church. She was asked if she could tell the Tribunal what the Bible story is about Christmas. She said that it is about eating the special cake for Christmas. The Tribunal asked her if she knew the reason Christians celebrate Christmas, according to the Bible. She said that it is that ‘people eat that Christmas cake’.
As the Tribunal has accepted earlier that she did attend church in China with her family, the Tribunal is satisfied that she may have attended church occasionally in Australia, but for the reasons set out above, the Tribunal is not satisfied that she is a devoted Christian practitioner.
Would the applicant practise Christianity if she returns to China?
At the Tribunal hearing the applicant said that she would want to practice if she returned to China. She said that God can cure mental health issues and so ‘they all believe in Jesus’.
The Tribunal accepts that she may want to attend church with her family in China if she returns to China, as she has done in the past.
The refugee criterion
Does the applicant have a well-founded fear of persecution?
The applicant claimed in her application that she will be persecuted for her religion if she returns to China. At the Tribunal hearing she claimed that she will be persecuted by a creditor who will harass her for money she owes him.
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.[14]
[14] Section 5H (1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
· the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
· 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 above; and
· the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear being persecuted for reasons of her religion or from the moneylender?
Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A (2) of the Convention.
The Tribunal is not satisfied that the applicant fears being persecuted for reasons of her religion. Although provided with a number of opportunities to tell the Tribunal why she fears returning to China, she did not mention fear of returning for reasons of her religion. As discussed earlier in this decision, she told the Tribunal that she fears returning to China because she owes money and fears being harassed by the lender. The Tribunal is not satisfied that she did not mention her religion due to nervousness. As the Tribunal explained to her at the commencement of the hearing, the Tribunal hearing was an opportunity for her to tell the Tribunal her story and explain why she feared returning to China. If in fact she had suffered harm as a Christian and feared returning for this reason, it would have been expected that she would have told the Tribunal about this. It was only late in the hearing when the Tribunal put to her that her evidence at the hearing was inconsistent with information in her application, that she mentioned a fear of returning for this reason.
The Tribunal is satisfied that the applicant fears returning to China because she owes money. The Tribunal does not accept that there is a real chance of persecution, involving serious harm. This is discussed further below.
Is there a real chance of serious harm if the applicant were to return to China?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. 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,[15] - not only must a person fear persecution, but there must also be a prospect of that fear being realised.
[15] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
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 of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[16]
[16] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
At the Tribunal hearing the applicant was asked what she fears if she returns to China. She answered that she is worried that if she returns to China the money lender will continue to ask her for money and harass her.
The Tribunal is not satisfied that there is a real chance of serious harm from the money lender. The applicant did not provide evidence of serious harm suffered while living in China, only stating that the applicant was harassing her by asking her for the money owed. She said that the lender was asking her for money owed, and she wanted to get away from him as she did not have the money. She said that the lender harassed her and her family. Asked how she was harassed, she said that the lender came to argue with her and ‘hindered her everyday life’.
There is no indication that she would suffer serious harm from the lender if she returned, other than being asked to re-pay her loan or ‘harassed’ through continual requests. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘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 is mere speculation’. The Tribunal is not satisfied that being asked regularly for re-payment of a loan, even involving regularity or argument, amounts to serious harm. Section 5J (5) of the Act provides indicative examples of serious harm including a threat to a person’s life or liberty and significant physical harassment or ill-treatment. These are examples only, and while psychological harm can be serious harm, the Tribunal is not satisfied that being harassed for re-payment reaches the level of ‘serious’ harm envisaged by the legislators.
The Tribunal is also not satisfied that the applicant faces a real chance of serious harm for reasons of her religion.
In evidence to the Tribunal, she said that she lived from [year] to 2018 in [Town 1], Jiangsu. She said that she and her family members are Christians and attended a local church each week with a few hundred people. She lived at home and was in employment. Her family members continue to attend this church. Her sister is a pastor in a nearby church.
There was no evidence provided at the Tribunal hearing of serious harm suffered by her family members who continue to practise in the church, or of serious harm suffered by her in the past. This is despite the fact that she said that her mother and brother had attended this church their whole lives, and her mother is engaged in many activities for the church.
The harm she referred to at the Tribunal hearing was her sister being called a ‘psycho’ and some ostracism and discrimination (including being prevented from entry), which is referred to in more detail below. For reasons set out earlier, the Tribunal is not satisfied that the applicant was abused and harassed by police or authorities in China for being a Christian or that she was harassed at work for this reason, as claimed in her application.
The applicant agreed with the Tribunal when put to her at the Tribunal hearing that it appeared that the church was tolerated in her community. She acknowledged that she and her family members were able to practise their Christianity. The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ The fact that she did not suffer serious harm for reasons of her religion while living in China, and her family members continue to practise, suggests that she would not suffer serious harm in the reasonably foreseeable future for reasons of her religion.
When asked at the Tribunal hearing what harm she fears as a Christian, she referred to community members thinking that ‘you have development issues’ or ‘mental issues’ if you believe in Christ. She said that this was because Christians say that they do not need doctors as Jesus can cure illnesses. She said that some community members think Christians are not normal. Asked if there was anything else she wanted to say about the harm she would suffer if she returned to China, she said that there was nothing else. The Tribunal accepts that in her community she may have suffered some ostracism and may do so in the future. The Tribunal does not accept that insulting comments by members of the community amounts to serious harm. The applicant also referred to sometimes not being allowed to practice, for example, when there were national events, and political or national leaders were in the village. The Tribunal does not accept that occasionally being not allowed to practice when political or national leaders were in attendance, amounts to serious harm, although it may be discriminatory.
Furthermore, as discussed with the applicant at the Tribunal hearing, in many communities in China, Christianity is tolerated, as she acknowledged is the case in her community. The country information cited in the following paragraphs was discussed with the applicant at hearing in a general sense. Since the hearing, the Department of Foreign Affairs and Trade has published a new report[17]. The Tribunal has referred to this report in its references to legislation imposed to promote political orthodoxy in churches, and enforcement of regulations prohibiting proselytising and similar issues. The report does not suggest any liberalisation of laws or actions of the authorities in China so there was no need to hold a further hearing in the matter. The issue of focus by authorities on evangelicals, activists and leaders, and the fact that churches and practitioners may face discrimination but not necessarily discrimination, was discussed with the applicant at hearing and there is nothing new in the DFAT Report about these issues.
[17] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
The number of Christians in China is large and growing. Sources available to the Tribunal indicate that there are many millions of practising Christians in China, in both registered and unregistered churches, notwithstanding ongoing restrictions imposed by the government and endeavours to ‘sinicise’ religious activity.[18] The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.[19] There are at least 38 million Protestants.[20] The Department of Foreign Affairs and Trade (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.[21] Freedom House estimates there are 60 to 80 million Protestants, of which only 30 million are registered.[22] In Jiangsu it is estimated that in 2020 15% of the population were Christian, including many evangelicals and Catholics.[23]
[18] United States Commission on International Religious Freedom, ‘Sinicization of Religion: China’s Coercive Religious Policy’, September 2024; Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[19] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
[20] 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.
[21] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[22] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 3 October 2019.
[23] Asia Harvest website, <Jiangsu - Asia Harvest>.
The information from various sources discussed below 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 her practices in China or Australia or would do so if she returned (given her limited participation in the church in both places).
Given the millions of practitioners, the Tribunal is not satisfied that there is a real chance of serious harm, that is a substantial chance[24]. In 2019 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:
In general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible.[25]
[24] Chan v MIEA (1989) 169 CLR 379.
[25] UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019.
In April 2022 the Immigration and Refugee Board of Canada reported on the treatment of Christian churches in China[26]. 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).
[26] 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.
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.[27]
[27] United States Department of State, ‘International Religious Freedom Report China’, 2 June 2021.
The United States Commission on International Religious Freedom in a September 2024 report referred to targeting of Catholics and Protestants through ordering the removal of crosses from churches, replacing the images of Jesus Christ or the Virgin Mary with pictures of President Xi, requiring the display of CCP slogans at the entrance to churches, censored religious texts and instructing clergy to preach CCP ideology.[28] The report states that underground Catholics view the Vatican as the sole spiritual authority which the CCP views as a threat. In 2018 the Vatican and CCP signed an agreement on appointment of bishops, but the government has unilaterally appointed bishops and targeted Catholic leaders.[29]
[28] United States Commission on International Religious Freedom, ‘Sinicization of Religion: China’s Coercive Religious Policy’, September 2024.
[29] United States Commission on International Religious Freedom, ‘Sinicization of Religion: China’s Coercive Religious Policy’, September 2024.
100. In the United Kingdom country guidance case[30] 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 lenient’ treatment (Professor 10 Sept. 2021).[31] 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,[32] generally Protestants in China are permitted to worship at officially registered Protestant churches and many millions do so unhindered by the government.[33]. The UK Home Office report on Christians in China[34] has outlined the increase in restrictions on Christian churches in China since 2013, but notes that:
[30] QH (Christians - risk) China CG [2014] UKUT 00086 (IAC) (14 March 2014).
[31] 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.
[32] Freedom House, ‘The Battle for China's Spirit - Religious Revival, Repression, and Resistance under Xi Jinping’, February 2017.
[33] Department of Immigration and Border Protection, COISS, ‘Protestants in China’, August 2015.
[34] UK Home Office, ‘Country Policy and Information Note, China: Christians’, November 2019, p.2.4.12.
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.
101. The 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 ‘harshly’ 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)[35].’
102. The Tribunal notes that since then, house, family and underground churches have come under heavy pressure to align themselves with the CCP,[36] with many unregistered religious organisations ‘pragmatically’ including CCP messaging in sermons.[37] DFAT suggested in 2021 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,[38] which could attract adverse interest. In its 2024 report, DFAT has referred to new legislation obliging teaching and promoting of political orthodoxy and other requirements such as the use of Mandarin at services and ensuring classical Chinese style architecture in churches.[39] Regulations prohibiting proselytization were generally enforced across China in 2023/4, and there has been ‘heavy pressure’ on churches to align their activities with the CCP.[40]
103. Further, DFAT assessed that Christians may face a moderate risk of official discrimination when attempting to practice faith, when conflicting with CCP practice, but was not aware of violence towards Christians because of religion.[41]
104. This information collectively suggests that church leaders, activists or evangelical practitioners are subject to greater scrutiny than ordinary members.[42] The Tribunal is not satisfied that the applicant falls in these categories given low level of engagement in China and Australia and no evidence provided of proselytising.
105. The sources also do not indicate that the applicant would suffer serious harm in China because she has sometimes attended church in Australia. Country information from the current Department of Foreign Affairs and Trade Country Information Report, People’s Republic of China,[43] does not suggest that being an ordinary member of a mainstream church in Australia would put a person at risk of serious harm on their return to China.
106. While the applicant’s claims of persecution may be plausible or credible in that some practitioners have faced arrest or serious harassment, this is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[44]
[35] 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.
[36] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[37] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[38] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
[39] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[40] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[41] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 27 December 2024.
[42] 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.
[43] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report People’s Republic of China’, 22 December 2021.
[44] Chan v MIEA (1989) 169 CLR 379.
107. The evidence does not support a finding that this applicant, who is not a leader, activist or proselytiser, and whose family continue to practice freely, would face serious harm from the authorities in Jiangsu province. The applicant has acknowledged that her church is tolerated in her area.
108. The Tribunal is not satisfied that there is a real chance, in the sense of a substantial and non-remote chance[45] of serious harm (Chan v MIEA (1989) 169 CLR 379) if the applicant were to return to China in the reasonably foreseeable future.
109. Taking into account the practice she has previously undertaken in China and Australia, the Tribunal is also not satisfied that she would be required to modify her behaviour in any way.
Findings on refugee criteria
110. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of her religion or any of the other reasons set out in the legislation, were she to return to China in the reasonably foreseeable future.
Does the applicant meet the complementary protection criterion?
111. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
112. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
113. 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 Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal is not satisfied that there is a real chance of serious harm on the basis of moneylending or for reasons of the applicant’s religion or for any other reason. For the same reasons, considering the decision 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.
[45] Chan v MIEA (1989) 169 CLR 379.
CONCLUDING PARAGRAPHS
114. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2) (aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2) (aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 21 November 2024
Representative for the Applicant: Mrs Grace Chen (MARN: 9601063)
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.
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