1933250 (Refugee) v Minister for Immigration and Multicultural Affairs - [2024] ARTA 881

1933250 (Refugee) [2024] ARTA 881 (12 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1933250, 1933254
Tribunal:General Member P Millar
Date:12 December 2024

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

Statement made on 12 December 2024 at 1:09pm
CATCHWORDS
REFUGEE – Protection Visa – China – religion – Christians – evidence about conversion to and adoption of Christianity unconvincing – applicants had provided inconsistent evidence – claims do not have a credible basis – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister on 28 October 2019 to refuse to grant the first named applicant (“the applicant”) a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is also an application for review of a decision made by a delegate of the Minister on 28 October 2019 to refuse to grant the second named applicant (“the applicant’s wife”) a Temporary Protection (subclass 785) Visa under s 65 of the Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
By letters dated 25 September 2024 to the applicant and the applicant’s wife, the Tribunal requested their consent to them combining their applications for review in which the Tribunal could conduct concurrent reviews including conducting a combined hearing and producing one decision record. By emails dated 26 September 2024, the applicant and the applicant's wife provided that consent. In her email, the applicant's wife provided a birth certificate for their son born in [month and year]. As the child was born after the decision of the delegate to refuse both applications, the Tribunal finds that their son cannot be included in their review applications.
The applicant, who the Tribunal finds to be a national of China, applied for the protection visa on 11 July 2019.[1] The applicant's wife, who the Tribunal finds to be a national of China, applied for a protection visa on 21 August 2019.[2] The delegate found this application to be invalid on the ground that the applicant's wife did not hold a visa in effect on her last entry to Australia. The delegate based that finding on the ground that the applicant’s wife arrived in Australia on a Visitor visa in the identity of another person. For that reason, the delegate considered the applicant's wife to have made an application for a temporary protection visa.
[1] The Tribunal's finding is based on the Chinese passport produced by the applicant at the hearing.
[2] The Tribunal's finding is based on the Chinese passport produced by the applicant’s wife at the hearing.
The applicant and the applicant’s wife appeared before the Tribunal on 21 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the hearing, the applicant and the applicant's wife stated that they consented to the Tribunal producing one decision record.
Criteria for protection visa
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.
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.
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).
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.
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
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.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report China 22 December 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to their evidence to the Department and the Tribunal, the applicant and his wife claim protection on the ground that they are Christians.[4] The Tribunal holds the following concerns about their credibility.
Credibility concerns
The applicant’s account
[4] The evidence of the applicant and his wife comprises their protection visa application forms; two written statements from the applicant submitted to the Department; the evidence of the applicant and his wife at an interview with the delegate for which there is an audio recording and to which the Tribunal has listened and their evidence at the Tribunal hearing.
To the Tribunal, the applicant gave the following account on which his and his wife's protection claims are based. The applicant and his wife are from the city of Fuqing in Fujian province. In 2011, in his final year at high school, the applicant began attending a “family church” in his local area. Although he said he did not attend church often, after he began doing so his school suspended him. His uncle, who he subsequently claimed had introduced him to the church, through connections in a government department, had the school allow the applicant to return and graduate.
After leaving school the applicant did not take action to find employment. This was because he was afraid the people around him would treat him differently for converting to the church he had attended. In 2013 he went to a village in the province of Shanxi where his uncle was based to [work]. From that time, he attended a church gathering every Sunday. In June 2018 the applicant and his uncle stopped living in that area and the applicant returned to live in Fuqing. This was because at that time police found out about the church gatherings and the applicant and other church members were detained. The applicant was detained for three days and fined 2000 RMB.
This was the first time that the applicant had encountered harm from the police. Prior to that, the police had not located the church members because they would hold gatherings in different locations. On return to Fuqing, the applicant lived with his wife who he had married in 2017. The applicant did not hold employment and purchased stock or shares in a company. In that same year government officials or police froze his account, alleging that the shares were part of the church to which he had belonged.
The applicant was afraid to attend church for that reason. The applicant and his wife left China and came to Australia in June 2019 because his uncle told him that he would have freedom of religion in Australia. Since his arrival, he and his wife have attended a church in Sydney every Sunday.
Inconsistency in the applicant’s evidence
At an early stage of the hearing, when the Tribunal asked the applicant how he became a Christian in China, he said that he joined the church when he was in his final year of high school. He said that he knew the church and he wanted to join it. When asked how he knew about it, the applicant said that he heard about the church through his “school mates”. The Tribunal asked the applicant to confirm that it was people at his school who told him about the church. In response, the applicant said that was correct. He said that at that time he had the idea of joining the church and his schoolmates told him about it.
After giving that evidence, the applicant then said that his uncle introduced him to the church. When asked why he initially said that his friends at school told him about the church, the applicant said that these events happened more than ten years ago so he could not remember properly. The Tribunal acknowledges that the claimed introduction to a church where he lived occurred 13 years ago, but the Tribunal could reasonably expect a truthful witness to give a consistent account of a significant life event, being the introduction to a religion for which the applicant fears harm.
The Tribunal asked the applicant whether he lived at his home with his parents in this period when he commenced going to church gatherings, after being introduced to them by his uncle. In response, the applicant said that was correct. He said that on weekdays he would be at school and on the weekends, he would be living with his parents. When asked if his uncle lived in Fuqing, the applicant said that he did. He added that at first, he did not attend church often because he did not really believe in Christianity that much. It was only after going to the village where he worked [that] he began attending church regularly.
In that respect, the applicant said that his uncle asked him to go into that area because of a lot of family churches there. Further in his evidence, the applicant again said that he lived with his parents until 2013 when he went to live in the other province. He also said that his brother lived with his parents before his brother left China to come to Australia. In his first written statement, the applicant said that he and his brother “grew up” with his uncle whose influence caused him and his brother to believe in Christ. The Tribunal put to the applicant that this appeared be inconsistent with his evidence at the hearing that he lived with his parents until 2013 when he moved to Shanxi province where his uncle was working.
In response, the applicant said that although he did live with his parents, his uncle raised him because the applicant’s father worked in [a country] in the “2000’s” and his uncle lived in the next building. He said he would sometimes go to his uncle's home for dinner and his uncle would get money for him. While the Tribunal appreciates that the applicant is discussing events that occurred some years ago and did say that his uncle introduced him to Christianity, he initially said that he lived with his parents through that period and did not make claims that his uncle raised him as a child.
Further, as stated above, in his first written statement he said that his brother believed in Christ, through his uncle’s influence, and his brother was a member of a family church. That evidence is inconsistent with his evidence at the hearing in which he said his brother never attended church in China. He said that he did not know if his brother attended church in Australia. Earlier in his evidence the applicant said that his brother left China in 2007 or 2008 because he had a student visa to enter Australia. He said that he did not know why his brother had remained in Australia since then.
When the Tribunal put this discrepancy to the applicant, he said that he could not recall if his brother was a Christian. This is inconsistent with his first written statement in which he said that he and his brother grew up with his uncle who influenced them to become Christians. The Tribunal again acknowledges that these claimed events occurred over ten years ago, but they are significant events for a claimed convert to Christianity seeking protection on that ground. The Tribunal finds the applicant’s evidence on these matters to be inconsistent and this reflects poorly on his credibility.
Further inconsistency in the applicant’s evidence related to his religious activities in China from 2013 when he went to live and work in Shanxi province. In this respect, the applicant said that from that time he attended church gatherings every week held in the village where he lived. The Tribunal asked the applicant whether in this period in which he lived in this other province, he undertook any other religious activities there apart from attending church on Sundays. In response, the applicant said “No”. When asked if his uncle undertook any other activities there apart from attending church on Sundays, the applicant said that he did not know.
When asked if he used social media for religious activities, the applicant said that he used a particular social media website for evangelisation to tell people what was good about the church. The Tribunal asked the applicant where and when he undertook those activities. In response, the applicant said that he did this in 2013 when living in Shanxi province. The Tribunal asked the applicant to confirm that it was only in that year that he undertook those activities. The applicant said that was correct. When asked why he did not do this social media work after that year, the applicant said that officials had blocked his use of the website under his name.
In stark contrast to this evidence, in his first written statement, the applicant said that when he was living in this province, he undertook the following activities (verbatim):
“Our family church preaches the gospel and speaks in tongue. We strictly follow the biblical teachings and strive to preach the gospel to the public, especially to school teachers and students, as well as the Communist Party cadres to ensure they confess their sins by knowing Jesus. We also worked hard with people against God and even atheists to guide as many as possible in the name of Christ and let Christ reign in their lives. We also used [social media site] as a platform to spread the gospel.”
In this statement, the applicant then said that in June 2018 the church was investigated by public security and the social media platform they used was blocked causing the applicant and his uncle to be in danger. The Tribunal understood that the applicant and his uncle were involved in these claimed activities. The Tribunal put to the applicant that this evidence in his first written statement was significantly inconsistent with his evidence at the hearing. In response, the applicant said that he was nervous and he did not know the correct answer. He then said that his evidence at the hearing was correct but then said his evidence in his written statement was also correct, only that it was made a long time ago.
The Tribunal asked the applicant whether he preached Christianity to Communist Party cadres as he claimed in his first written statement. In response, the applicant said that he did not preach to those people and his statement contained a translation error. He then said that he did preach to the public locally where he lived in that county. However, the applicant did not give that evidence when initially asked about his religious activities in that province. Overall, there is striking discrepancy in these accounts about an important period in the applicant’s life as to what religious activities he and his uncle undertook. His explanations do not resolve the Tribunal's concerns and this discrepancy casts significant concern over his credibility.
At a later stage of the hearing, the Tribunal put to the applicant that in his protection visa application, he said that he lived in the province of Shanxi from 2013 until 2015 where he worked [for] a [company]. In his application he said that from 2015 until 2019 when he left China, he lived in Fuqing where he worked as a “freelancer”. The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that he lived in Shanxi province from 2013 until 2018 when he was detained by police and then returned to his native area in Fuqing.
In his responses, the applicant said that possibly there was an incorrect translation, these events happened long ago and he lived in Shanxi from 2015. He then said that in fact he stopped working [in] Shanxi province in 2015 and from then worked irregularly which is what he meant by “freelancer” and bought some stock. His evidence was mobile and inconsistent. Although these claimed events happened some years ago, the applicant could be reasonably expected to give a consistent account of where he lived and worked in China. This is especially so when that relates to when he began attending church gatherings regularly and when he was detained by police.
In their visitor visa applications, the applicants gave different accounts of their employment in China and where they lived. In this respect, the applicant claimed that from 2014 through to 2019 he worked as a manager for a company in [a town] in Hunan province. In that application the applicant provided documents in support of that claim including a letter from the employer. The applicant's wife claimed that from 2015 through to 2019 she worked as a manager for a company in Wuhan, Hubei province. With that application she provided documents in support including a letter from the employer.
Pursuant to s 359A of the Act, by letter dated 31 October 2024, the Tribunal put to the applicants that these claims in their visitor visa applications appeared to be inconsistent with their evidence to the Tribunal about where they lived and worked in China. In a joint submission dated 12 November 2024 the applicants claimed that they were Christians and said that the evidence they gave the Tribunal about their employment in China was the truth. In a written statement the applicant said that he lived and worked in a [area] in Shanxi from 2019 to 2021 before saying that he worked there from 2013 to 2018 travelling back and forth to his native area in Fuqing. He described the workplace in that other province and the work he did. He provided letters from former work mates, two of them saying they worked together in 2015 and one of them saying they worked together in 2013. He also provided photographs of him working in a [area].

In a written statement the applicant's wife said that she worked as a [occupation] in Fuqing and she provided a letter from her former employer and photographs of her [work]. The Tribunal adds that at the hearing the Tribunal also put to the applicant the evidence he put forward in his visitor visa application about where he worked and lived. In response, the applicant said that he gave real documents to an agent who submitted the visitor visa application for him. He did not know what the agent did with those documents and did not know the content of the application.
The Tribunal is willing to accept the explanation that, in essence, the agent who prepared the visitor visa application fabricated information and evidence to support that application. Accordingly, the Tribunal does not give weight to that evidence and does not draw any adverse inference against the applicant and his wife based on that evidence. However, as discussed above, the applicant has given inconsistent evidence about when he lived in Shanxi province being inconsistency in his evidence at the hearing and also in his protection visa application. The applicant’s claim that he travelled back and forth from Shanxi to Fuqing and the statements from former colleagues that they worked with the applicant in 2013 and 2015 do not explain or overcome the inconsistency in his evidence as to when he lived and worked in Shanxi. That inconsistency casts concern over the credibility of his account of events in China.
The applicant’s evidence about Christianity
The Tribunal found the applicant's evidence about his conversion to and adoption of Christianity to be unconvincing. In this respect, at an early stage of his evidence at the hearing, the applicant said that, at first, he did not really believe in Christianity that much. For that reason, in 2011 he did not often go to the church gatherings to which his uncle had introduced him. He said that it was from 2015 that he started attending church gatherings every week. When asked why he attended church regularly from that time, the applicant said that he was baptised in 2015. Further in his evidence, the applicant said that he started attending church gatherings regularly from 2013 when he went to live in Shanxi province. He then repeated his earlier evidence that he was baptised in 2015.
When asked why he was baptised in that year and not before, given his evidence that from 2013, he began attending church gatherings every week, the applicant said at first, he did not believe in Christianity much but then he decided to get baptised. When asked what made him decide to be baptised, the applicant said that he believed Jesus could help him to live and be saved. When asked how the baptism was done, the applicant said there were two steps. The first step was his head being put into water and then him saying goodbye to his previous life, coming out and having a new life.
The Tribunal then asked the applicant what occurred in the baptism apart from that. In response, the applicant said nothing else happened. The Tribunal asked the applicant what the baptism ceremony comprised. In response, he said that it was a shower in a cave where the gatherings were held. When asked how the ceremony commenced, the applicant said that the first thing that happened was the pastor gave a speech based on the Bible then there was the shower. Given the applicant claims to have converted to Christianity and fears being persecuted on that ground, the Tribunal would have considered baptism to have been a significant event in his life. At one stage he said he started attending church regularly in 2015 because that was when he was baptised.
That being so, while the Tribunal acknowledges the applicant’s responses to questions on his baptism, his evidence about the ceremony was somewhat vague. This was confirmed by the applicant's evidence as to where the baptism ceremony took place. Prior to giving evidence about moving to another province in 2013, the applicant said that he was baptised in 2015. When asked where the baptism took place, the applicant said that he could not recall. He just remembered that it was conducted by a pastor [name]. The Tribunal asked the applicant whether the ceremony took place in Fuqing city. In response, the applicant said that he did not remember where it took place, whether it was in Fuqing or Shanxi province.
Again, considering the applicant claims protection on the ground that he is a Christian, he could be reasonably expected to be able to say, at the least, the area where what should have been a very significant ceremony for him took place. Further, as indicated above, the applicant’s evidence around when he was baptised, in terms of when he started to regularly attend church gatherings, was mobile. At one stage he said that he began attending church regularly from 2015 because that was when he was baptised. At another stage of his evidence, he said that he started attending church regularly from 2013 after he went to live in Shanxi province.
Even if the Tribunal was to accept his evidence about what happened in the baptism ceremony as adequate, the applicant's inability to say where the baptism ceremony took place and his mobile evidence about when he began attending church regularly and its connection with his baptism, cast concern over his credibility. At a later stage of the hearing the Tribunal questioned the applicant about his practice of Christianity in Australia. The applicant said that not long after his arrival in Australia he attended what he called a Chinese church and has done so every week since then. He said that he found out about the church from people around him.
When asked why he chose that particular church, he said that it was similar to the gatherings he attended in China in that it was free and everyone was equal and believed in God. The Tribunal asked the applicant what took place at the church services he attended in Australia. In response, the applicant said that normally the church members would sing then the pastor would give a speech. This would be followed by a weekly update in which the members would be told about donations before making prayers. Then the members would talk to each other in what the applicant referred to as “small talk”.
The Tribunal asked the applicant to recall a speech given by the church pastor at the service. In response, the applicant said that in the last speech he heard, the pastor read a passage from the Bible and then discussed it with the church members. When asked for more detail, the applicant said that he could not recall anything further. He said that his young child made noise and he and his wife were focused on that. He then said he did listen to the speeches given but he could not recall their contents.
When asked what Christianity meant to him, the applicant said that if he believed in Jesus he lived a good life. The Tribunal asked the applicant what teachings or preaching were given by Jesus. In response, the applicant said that he could not say. When asked if he read the Bible, the applicant said that he did. When asked about the content of the Bible, the applicant referred to the Old Testament and New Testament but saying nothing else beyond content about Noah, resurrection and the production of new wine. When asked the content of the New Testament in the Bible, the applicant said love and charity but could not say any more than that.
For someone who claims to have regularly attended church gatherings in China over a number of years and to have regularly attended church in Australia since 2019, the Tribunal could reasonably expect the applicant to have given a more descriptive account about Christianity and what happened during church services. As stated above, the Tribunal found the applicant's evidence on these matters to be vague and unconvincing. The Tribunal adds that as someone claiming to have converted to Christianity, to have regularly attended church services and to be in fear of harm on return to China because of his commitment to that religion, the Tribunal could reasonably expect the applicant to have some knowledge or understanding about government approved Christian churches and explain why he could not attend them.
In his evidence on that issue, the applicant said that in his gatherings everyone was equal, but the government approved church was different. When asked how the government church was different, the applicant said that church members had to listen to the government and pastors were government officials. When asked how he knew that, the applicant said that he would look into their eyes and know the difference. When asked whose eyes he was referring to, the applicant said that people went to a family church and just looked different to those who attended a government approved church.
When asked where he saw people who attended a government approved church, he said that it was after he was baptised, government approved churches were in Fuqing and Shanxi province and if he just walked past them, he would see the followers. The applicant’s claim about a government approved church being aligned with the Chinese government is consistent with country information as discussed further below in this decision. However, the Tribunal does not accept the basis of the applicant’s claim as simply being his observation of people who attended that church.
If the applicant was claiming the church services that he attended were different to those conducted in government approved churches, the Tribunal could reasonably expect him to give a substantive basis on which he makes that claim beyond the appearance of people he saw going to those churches. That substantive basis could have been discussions he had with people at his own church gatherings about that, as one example.
Evidence of the applicant’s wife
The Tribunal asked the applicant's wife why she did not want to return to China. In response, the applicant's wife said that she wanted to follow the applicant and he had a fear of returning to China due to religion. She then said that she herself feared harm on that ground. The applicant's wife said that she started attending a church gathering in Fuqing in 2018 and attended every week from that time. She said that the applicant took her to the church, but he only occasionally attended because he was in fear of harm. The Tribunal records at this point that in his evidence the applicant said that his wife was baptised in 2018.
The applicant’s wife said that since her arrival in Australia she had been attending the same church as the applicant regularly. When asked what would cause her harm in China if she practised Christianity, the applicant's wife said that she did not know what would happen but being harmed was what she feared. She said that she did not encounter any trouble in China when attending church. When asked if the applicant encountered trouble in China for being Christian, the applicant's wife said that when he was attending church in Shanxi province he got injured. She said that she knew nothing more about that and it happened before she met him.
When asked if the applicant encountered any other problem apart from that, she said that his stock account was frozen by the authorities. When asked if the applicant was ever detained by police in China, the applicant's wife said that he had mentioned that to her once. She could not say where that happened or when because after she gave birth to her child she could not recall. The Tribunal then asked the applicant's wife about her own belief in Christianity. When asked what it meant to her to be Christian, the applicant's wife said that she believed in God, the Trinity and that God saved humanity so people could live peacefully.
When asked how God saved humanity, she said that his body had been crucified and that was done to save humanity. The Tribunal asked the applicant's wife if she read the Bible. She said that she had not spent much time reading the Bible. When asked to describe what she had read, the applicant's wife mentioned the Old Testament being about guilt and the New Testament being about love and charity. When asked for more evidence about that, the applicant's wife said that it had been difficult for her and the applicant having their child who had been ill.
The Tribunal then asked the applicant’s wife to relate a topic discussed at church gatherings which she had attended such as a speech given by a pastor. In response, the applicant's wife said that at the church in Australia they prayed in silence, the pastor read the Bible and people shared their experiences. When asked what the pastor said, the applicant's wife said that the pastor would say a prayer and beyond that she could not remember anything.
As with the applicant, the Tribunal finds these responses from the applicant's wife to be unconvincing. The Tribunal could reasonably expect the applicant's wife to say more about what was said at the church gatherings she has attended over a long period if she is committed to the practice of Christianity. The Tribunal found her responses about Christianity to be basic, minimal and not consistent with someone claiming to have attended regularly church services in China and Australia.
FINDINGS
Findings on credibility
The delegate accepted that the applicant and the applicant's wife had practised Christianity in China as “low level members of an underground house church”. The delegate accepted that the applicant and his wife had attended church in Australia and found that they were adherents of the “Protestant branch of Christianity”. At the beginning of the hearing, the Tribunal put to the applicant and the applicant's wife that notwithstanding those findings by the delegate, the Tribunal would make its own independent assessment on their credibility.
The Tribunal finds that the applicant has given inconsistent evidence with respect to his adoption and practice of Christianity in China. Those inconsistencies are significant, in particular, the inconsistency in his evidence as to his religious activities when he lived in Shanxi province. Those inconsistencies reflect poorly on the applicant’s credibility and this is affirmed by his evidence about his baptism and his evidence about the content of attending church in Australia which he said was similar to the gatherings he attended in China. Considered cumulatively, these concerns cause the Tribunal to find that the applicant’s evidence about his adoption and practice of Christianity in China is not credible.
Therefore, the Tribunal disbelieves his claims about becoming a Christian, attending gatherings and being harmed by authorities in China. In making that finding, the Tribunal considered the evidence of the applicant's wife. In her evidence, the applicant’s wife said that the applicant attended church in China and attended less from 2018 in fear of harm. In terms of harm from authorities, she said his stock account had been frozen and he got injured attending church in Shanxi province. Her claims are broadly consistent with the applicant's evidence but do not overcome or outweigh the significant inconsistency in the applicant's evidence about his adoption and practice of Christianity and the harm he encountered.
The evidence of the applicant’s wife does not overcome the vague and unconvincing evidence the applicant gave about Christianity. Consequently, the Tribunal remains of the view that the applicant's evidence about being a Christian in China and being harmed by authorities in China is not credible. On that basis the Tribunal also finds the evidence of the applicant's wife about adopting Christianity, the practice of Christianity by the couple in China and harm suffered by the applicant for that is also not credible. That finding is also based on what, as discussed above, the Tribunal found to be the basic, minimal and unconvincing responses given by the applicant's wife when questioned about her practice of Christianity. The Tribunal finds that it does not have credible evidence about the adoption and practice of Christianity in China by the applicant and the applicant's wife.
The Tribunal accepts the evidence of the applicant and his wife that since their arrival in Australia in 2019 they have regularly attended a church. Their attendance from that time does not overcome the concerns the Tribunal holds about their credibility with respect to their practice of Christianity in China. As discussed above, when questioned about the services they attended in Australia, their evidence was vague and not consistent with followers of Christianity claiming to have converted to that religion, to have regularly attended church services and to be in fear of harm on return to China because of their commitment to that religion. The Tribunal finds that it does not have credible evidence as to whether the applicant and his wife would seek to practise Christianity in China and no credible evidence as to how they would do that.
In the decision to refuse the visa applications, the delegate stated that the applicant and his wife had limited knowledge of Christianity. Following their interview with the delegate, the applicant provided a written statement to the Department. In this statement, the applicant and his wife said that they were introverted with limited education and therefore had difficulty in expressing themselves. The applicant and his wife both said at the hearing that they were nervous in giving evidence. They said that since the birth of their son [their] attention, including at church services, was focused on his health.
The Tribunal acknowledges those claims, but they do not explain or overcome the inconsistency in the evidence about their practice of Christianity in China and harm suffered on that ground. In this second statement given to the Department, the applicant and his wife gave a description of the gatherings they attended in China and their religious activities. With respect to knowledge about the Bible they claimed that what mattered was their actions as Christians which would bring them into conflict with the government. The Tribunal has also taken that further evidence into consideration but finds that a strong commitment to Christianity would also include the ability to give convincing evidence about that religion and its meaning to them. That would be the case notwithstanding limited education and ability to express themselves. While the Tribunal can understand their concern about their child's health, they had been attending a church in Australia long before their child was born.
In making these findings, the Tribunal emphasises that in stating that the evidence from the couple about Christianity was vague and unconvincing, the Tribunal does not hold an expectation that they display a requisite level of knowledge of Christianity and religious doctrine as such. The Tribunal’s finding is that the applicants simply could be reasonably expected to give more descriptive responses to questions such as what the pastor at the church they regularly attend in Australia said at services and what they understood from reading the Bible. The Tribunal is not satisfied that their failure to do so relates to limited education and ability to express themselves.
By email dated 18 October 2024, the applicant provided documents to the Tribunal in support of the claims to be Christian. Those documents comprise two statements from persons who attend the church in Australia attended by the applicant and his wife. One person states that the applicant and his wife were present at the church in July 2019. Both persons state that the applicant and his wife regularly attend the services and they are genuine Christians. Also provided was a statement from the applicant’s employer, a Christian, who said that the applicant is of good character and would further his “religious convictions” in Australia. Also provided in these documents are what the Tribunal understands to be photographs of the people who attend the church in Australia including the applicant and his wife.

The Tribunal has considered this further evidence and accepts that the applicant and his wife have regularly attended a church in Australia. However, this evidence does not outweigh the concerns the Tribunal holds about the credibility of the applicant and his wife as to their practice of Christianity in China and their claim about the applicant suffering harm. The Tribunal acknowledges the claims in this evidence about the applicant and his wife being of good character and genuine Christians, but the fact remains that their evidence at the hearing about Christianity in general was unconvincing for the reasons given above. To the Department, the applicant submitted documents from what appears to be the website of this church they attend. The documents do not refer to the applicant and his wife. They refer to the church as evangelical and a membership made up mostly of people of Chinese ethnicity.
It may be that the applicant and his wife attended this church for social interaction with other people after coming to another country. However, the Tribunal remains concerned about the intentions of the applicant and the applicant's wife on return to China in terms of genuinely wanting to practise Christianity and how that would be done. For the reasons given, the Tribunal finds that it does not have credible evidence on those matters and, if the applicant and his wife were to practise Christianity in China, the Tribunal finds that this will be, as the delegate found, at a low level with minimal participation.
The Tribunal adds that while the applicant claimed that he rejected government approved churches, his evidence as discussed above with respect to his knowledge of such churches and the difference between them and the churches he claimed to have attended, was not convincing. His claims on his disapproval of government approved churches were merely based on his observation of the people he thought were attending them. The Tribunal is not satisfied that the applicant and his wife on return to China, if they seek to practise Christianity, would not be willing to attend the government approved church.
Findings on merits
Do the applicants satisfy the refugee criterion for protection?
For the reasons given, the Tribunal finds that the evidence of the applicant and the applicant's wife about adopting and practising Christianity in China and the applicant suffering harm on that ground is not credible. The Tribunal finds that it does not have credible evidence about the applicant and his wife seeking to practise Christianity on return to China and how they would practise that religion in China. At best the Tribunal is willing to find that whatever practice they undertake will be low level with minimal participation.
Country Information
In its “Country Information Report China”, dated 22 December 2021, DFAT states that China officially recognises five religions that include Catholicism and Protestantism.[5] It is estimated that 5.1 % of the population of 1.4 billion are Christian, being approximately 70 million people.[6] Christianity is growing rapidly.[7] DFAT states that under Xi Jinping, China has introduced a renewed campaign to “Sinicise” religion, the purpose of which is:
“….. to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden.”[8]
[5] DFAT, Country Information Report China (22 December 2021) at 3.22.
[6] DFAT, Country Information Report China (22 December 2021) at 3.22.
[7] DFAT, Country Information Report China (22 December 2021) at 3.28.
[8] DFAT, Country Information Report China (22 December 2021) at 3.24.
DFAT describes the implementation of this campaign as follows:
“This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China.”[9]
[9] DFAT, Country Information Report China (22 December 2021) at 3.24.
Specifically with respect to Christianity, government actions also involve restrictions on the provision of the Bible, removal of sacred images in churches and removal of visible symbols of Christianity from church buildings.[10] Further, those groups that are allowed to exist are subject to close monitoring.[11] Regulations prohibiting proselytising are generally enforced across China.[12] DFAT states that religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down.[13] Some religious leaders have faced charges like subversion of state power.[14] In terms of restrictions on religious practice, DFAT states more generally:
“Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the [Chinese Communist Party] to be closely tied to other ethnic, political and security issues.”[15]
[10] DFAT, Country Information Report China (22 December 2021) at 3.29 – 3.30.
[11] DFAT, Country Information Report China (22 December 2021) at 3.25. DFAT states “CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.”
[12] DFAT, Country Information Report China (22 December 2021) at 3.26.
[13] DFAT, Country Information Report China (22 December 2021) at 3.24.
[14] DFAT, Country Information Report China (22 December 2021) at 3.24.
[15] DFAT, Country Information Report China (22 December 2021) at 3.27.
A similar position is taken by the United States Department of State in its “2023 Report on International Religious Freedom: China” in which it also refers to the government asserting control over and restricting the activities of religious groups and adherents perceived as threatening state or Chinese Communist party interests.[16]
[16] United States Department of State, 2023 Report on International Religious Freedom: China (includes Hong Kong, Macau, Tibet and Xinjiang) at Executive Summary. This same position is taken in United States Commission on International Religious Freedom, 2024 Annual Report, pages 22 – 26.
The official governing body for Protestant churches is the Three-Self Patriotic Movement (“TSPM”); the Three-Self Church being the single state-sanctioned Protestant church.[17] Most Protestants worship in unofficial ‘house’ churches, such ‘underground’ churches being in a house, or large gatherings in commercial office space.[18] Although some home congregations received increased tolerance over decades, that trend has now reversed due to the “Sinicise” campaign.[19] In this respect, DFAT states:
“In recent years the government has increased efforts to force them to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM. Churches refusing to align with the TSPM have been closed or threatened with closure. DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches.”[20]
[17] DFAT, Country Information Report China (22 December 2021) at 3.32.
[18] DFAT, Country Information Report China (22 December 2021) at 3.33.
[19] DFAT, Country Information Report China (22 December 2021) at 3.25.
[20] DFAT, Country Information Report China (22 December 2021) at 3.33.
DFAT indicates that the risk of suffering harm from the government due to religion “varies from place to place and is influenced by the actions and motivations of local authorities.”[21] With respect to Protestant churches, DFAT states that the situation differs from place to place and community to community.[22] There are Protestant communities largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without interference.[23] With respect to location, there is country information to the effect that the authorities in south and southeast China take a more relaxed approach to enforcing religious regulations, including Fujian.[24]
[21] DFAT, Country Information Report China (22 December 2021) at 3.24.
[22] DFAT, Country Information Report China (22 December 2021) at 3.34.
[23] DFAT, Country Information Report China (22 December 2021) at 3.34.
[24] Research Directorate, Immigration and Refugee Board of Canada, CHN200992.E China Treatment of Members of Christian Patriotic Churches (10 May 2022) at 3.2.
Apart from the factor of location, DFAT assesses the risk for Protestants as also related to the size of the congregation:
“Larger churches are most likely to receive government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions.
…..
The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.”[25]
[25] DFAT, Country Information Report China (22 December 2021) at 3.33 - 3.34.
Overall, with respect to the ability of Protestant Christians to practise their religion, DFAT concludes:
“DFAT assesses 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.”
The United Kingdom Home Office (“the UKHO”), in its more recent “Country Policy and Information Note China: Christians”, issued in March 2024, expressed the risk of harm for Christians in these terms:
“Christians, whether they belong to a state-registered church or not, are in general unlikely to be at risk of persecution or serious harm on the basis of their faith alone. In state-registered churches, dissident bishops or prominent Christians who challenge, or who are perceived to challenge, public order and the legal conditions under which churches and leaders may operate, may be at risk of persecution or serious harm. Each case must be considered on its facts. Underground Protestant and Catholic house churches exist, although information on their numbers and size of congregations is limited. Members of such churches face harassment including pressure to join CCP (Chinese Communist Party)-approved churches, disruption to meetings including electricity cuts, evictions, closure and restriction on religious education and media.”[26]
[26] United Kingdom Home Office, Country Policy and Information Note China: Christians, Version 4.0, March 2024, at Executive Summary, page 4.
With respect to Christians in unregistered churches, the UKHO states that there is a real risk that they will suffer serious harm if they conduct themselves in a way that attracts the attention of local authorities to them or through their political, social or cultural views.[27] The UKHO also finds that location is a factor in determining to what extent adherents will be allowed to practise their faith. The UKHO states that national laws provide discretion to local governments to allow followers of unregistered religions to practise their faith, how that discretion is applied depending on the motivations of the local authorities and likely to vary by area.[28] The Tribunal adds that according to DFAT the risk of someone suffering harm from non-state agents due to their religion is remote beyond the possibility of isolated societal discrimination, a risk DFAT describes as low.[29]
Inferences drawn from country information
[27] United Kingdom Home Office, Country Policy and Information Note China: Christians, Version 4.0, March 2024, at Executive Summary, page 4.
[28] United Kingdom Home Office, Country Policy and Information Note China: Christians, Version 4.0, March 2024, at 3.2.4.
[29] DFAT, Country Information Report China (22 December 2021) at 3.31, 3.35.
The Tribunal draws the following inferences from the country information. The Chinese government is seeking to exert control over the practise of Christianity. Although DFAT stated that Protestant Christians are unable to practise their faith freely, the circumstances of the applicant need to be considered. They include where in China the applicant would practise Christianity, the size of the church to which the applicant would belong, including if it is registered or unregistered as well as any dealings that church has had with the government (including a link to any central authority), the position of the applicant within the church as a leader or follower, whether the applicant is public or private in the applicant’s religious practice as well as any political issues to which the applicant’s faith is linked.
The Tribunal discussed this country information with the applicant and his wife and put to them that the risk of them suffering serious harm based on their claim to be Christians was remote. The Tribunal put this to the applicant and his wife on the basis that whatever practice of Christianity they would undertake in China would be, at best, low level, minimal and private in either an approved or underground Protestant church; the applicant and his wife not claiming to have been in or sought to be in the Catholic Church.
In response, the applicant said that the country information only related to people in a government church in which the government guided the followers, followers who did not evangelise. In response, the applicant's wife said that the applicant had been detained and harmed by the authorities for being a Christian. For the reasons given above, the Tribunal disbelieves those claims. In addition, the country information set out above discusses both government approved and independent or underground churches. For the reasons given, the Tribunal finds that it does not have credible evidence about the applicant and his wife practising Christianity in China, including how they would pursue that.
At best the Tribunal finds that their practice of Christianity will be minimal, private, low level and not undertaken in any way that would bring them in conflict with the government. Accordingly, the risk of the applicant and his wife suffering serious harm in China is remote. Accordingly, for those reasons, there is not a real chance that the applicant and his wife will suffer serious harm in China. They do not hold a well-founded fear of persecution and do not satisfy the refugee criterion in s 36(2)(a) of the Act.
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal has expressed above its reasons why there is not a real chance that the applicants will suffer serious harm in China. For those same reasons, the Tribunal finds that there is not a real risk that the applicant and the applicant's wife will suffer significant harm in China.[30] Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, China, there is a real risk that the applicants will suffer significant harm. Therefore the applicants do not meet the complementary protection criterion in s 36(2)(aa).
[30] MIAC v SZQRB (2013) 210 FCR 505.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant and his wife are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant and his wife do 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 and his wife are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant and his wife satisfy 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 and his wife do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions under review.
Date of hearing:   21 October 2024
Representative for the applicants: No representative
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.
…