2014003 (Refugee)
[2025] ARTA 1765
•25 July 2025
2014003 (Refugee) [2025] ARTA 1765 (25 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2014003
Tribunal:General Member N Schmitz
Date:25 July 2025
Place:Melbourne
Decision:The Tribunal affirms the decisions under review.
Statement made on 25 July 2025 at 10:11am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Shouters sect – banned by Chinese government – regarded as an evil cult – information and documents in visitor visa applications were fraudulent – false passports – detained and assaulted after hosting a church gathering – verbal threats and monitoring – credibility concerns – delay in applying for protection visa – the applicants’ families of the same religion have not been harmed – Chinese domain email address still used although it can be monitored by the Chinese government – difficult to depart China if of interest to authorities due to exit control lists, facial recognition technology and centralised security monitoring capabilities – new evidence could also be fraudulent – high prevalence of fraud in the Fujian Province – inconsistent claims – child left behind – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 9
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT & Anor [1997] FCA 423Any 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 for Home Affairs on 15 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are nationals of China and are husband and wife. They applied for the protection visas on 11 September 2017. The delegate refused to grant the visas on the basis that they did not meet the protection criteria.
On 15 September 2020, the applicants applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The applicants each appeared before the Tribunal on 14 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review and the representative attended the Tribunal hearing.
The hearing was extended and two additional interpreters were arranged to allow the applicants to complete their evidence. This was due to the late service of documents during hearing preliminaries which delayed the commencement of the hearing. The Tribunal was also unaware that the applicant husband would give evidence as no response to hearing notice was filed indicating he would participate. The applicant husband also did not provide a statement of his claims to the Department or Tribunal and did not participate in the Departmental record of interview, relying on his wife’s protection claims. The Tribunal is satisfied that the applicants were accorded with procedural fairness and given a meaningful opportunity to present their claims to the Tribunal.
The Tribunal in conducting the hearing had regard to the Tribunal’s statutory objectives of ensuring that applications of review are resolved quickly, with as little formality and expense as the matter permits whilst also promoting public trust and confidence in the Tribunal.[1] In this case, the Tribunal was concerned about preserving the integrity of the witnesses evidence. The applicant husband also indicated he wished to give evidence and for the matter to proceed.
[1] Section 9(b) and (e) of the Administrative Review Tribunal Act 2024 (Cth).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant must satisfy the statutory requirements
The Tribunal is not required to make the applicant’s case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; and Abebe v Commonwealth of Australia (1999) 197 CLR 510.
The Tribunal is not required to uncritically accept all or any of the applicant’s claims; Randhawa v MILGEA (1994) 52 FCR 437. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347.
The mere fact that an applicant claims a fear of ‘serious harm’ for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed; Randhawa v MILGEA (1994) 52 FCR 437. Similarly, an applicant who claims to face a ‘real risk’ of ‘significant harm’ does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements have been made out; MIEA v Guo (1997) 191 CLR 559; and Prasad v MIEA (1985) 6 FCR 155.
Country of Nationality
The applicants claim to be citizens of China. On the basis of the passports contained in their protection visa application, the Tribunal accepts the applicants are citizens of China and has assessed their claims against China as the country of nationality and the receiving country.
Evidence before this review
The Tribunal has taken into consideration evidence adduced to the Department and the Tribunal, including the applicant wife’s electronically recorded interview with the Department which the Tribunal has listened to, oral evidence given by the applicants at hearing, pre-hearing and post-hearing materials, travel movement records and independent country information about China.
The applicants personal background
The applicants were each born in the Fujian Province, China where they resided from birth until their time of departure for Australia. The applicant wife grew up in a household comprising of her parents and [sibling]. The applicant husband grew up in a family comprising of his parents and [sibling]. His father is now deceased.
The applicants married [in] May 2014 in Fuqing City. There is one child of the marriage, [Child A], born on [date]. Prior to coming to Australia, the applicants resided together with their child in an apartment in Fujian Province. The apartment was owned by the applicant husband’s parents who resided in a neighbouring street.
The applicant wife completed primary and secondary school. In China she worked as an [Occupation 1] and after marriage at a [workplace] in [Occupation 2]. In Australia she initially worked as [an Occupation 3] for two months and from May 2017 as [an Occupation 4] with her husband. The applicant husband completed primary and secondary school. He then attended a technical school where he studied [Area of study 1]. In China he worked in [Industry 1]. Since coming to Australia he has worked as [an Occupation 4].
[In] January 2017, the applicants arrived together in Australia on visitor visas which were valid until 27 April 2017. The applicants left [Child A] who was [age] at the time in China in the care of the applicant wife’s parents where [he/she] remains.
The applicants each conceded that the information and documents in their visitor visa applications were fraudulent but claimed it was done with the assistance of a travel agent. The applicant wife gave evidence of travelling to Liaoning Province to obtain the applicants’ false passports.
The applicant wife told the Tribunal that when they arrived in Australia she had a cousin who resided in [Suburb 1]. Her cousin organised their [Suburb 2] rental property and introduced her to her landlord.
The Tribunal accepts the above matters to be true. The Tribunal finds the applicants are from the Fujian Province and provided false information and documents in their visitor visa applications.
Wife’s Protection claims to the Department
In a statement accompanying the applicant wife’s visa application, she states the applicants fled China because they feared persecution by the Chinese government. The applicant wife claimed to be an adherent of the Local Church (aka Shouters) which is banned by the Chinese government. She states her church was not registered and is regarded as an ‘evil cult’.
The applicant wife claims she was apprehended by the Public Security Bureau (PSB) at her home in Fuqing City [in] October 2016 when hosting a church gathering. She claims PSB officers took her away to [Police Station 1] for interrogation as she was the house owner and leader of the gathering on the day. She was then transferred to [PSB Detention centre 1] for further investigation and detention until [November] 2016 when she was released from custody. She claims during her detention she was assaulted by PSB officers and sustained bruises all over her body. She claims they pulled her hair, bumped her head against the wall and spat on her face because she declined to answer their questions.
When released she claims she was given a verbal warning to stay away from her church and that she would be severely punished if she did not comply. She claims that police officers made irregular visits to her home to monitor if she was still involved in church activities.
The applicant wife claims a Chinese agent organised the applicants’ visitor visas and was unaware of what documents and information were included in the applications.
The applicant husband did not make protection claims of his own.
Applicants’ visitor visa applications
In the applicants’ visitor visa applications, the applicants indicated that they were born in and from Liaoning Province. This was reflected in their passports and national identity cards accompanying their visitor visa applications. In the applications they indicated they were spouses and resided with each other in China and would be travelling together to Australia.
However, in the protection visa applications, the applicants indicated they were from the Fujian Province and in support provided a copy of their marriage booklet and the birth certificate of [Child A] that indicate a Fujian personal identity number for each of the applicants. Passports with the same passport number as the visitor visa applications indicate they were born in Fujian Province. National identity cards were not provided with the protection visa application. Their claimed [child] in the visitor visa application has a different name and date of birth from their claimed [child] in their protection visa application. The applicants identified that they resided together at the same residential address in China and Australia.
Applicant wife’s application for Bridging Visa Work Rights
On 8 December 2017, the applicant wife lodged an application to change the conditions of her bridging visa which had no work rights. The application identified that she was residing at [Address 1, Suburb 2]. While the applicant husband was included in the application form, he was not referred to in supportive evidence from individuals claiming to provide the applicant wife with financial and other support. For example, the applicant wife’s landlord stated:
…[Applicant wife] is currently renting a bedroom from me and is currently paying a monthly rent of $750 which includes electricity, gas and other utility bills.
[Applicant wife] is having financial difficulties at present and is four weeks arrears of her rent.
In addition, various rental ‘cash receipts’ were provided which identify the rental monies being paid by the applicant wife only. The applicant wife also attached a bank statement with only her name as the account holder.
The applicant wife’s record of interview with Department
On 3 February 2020, the applicant wife participated in a record of interview and stated:
·On the instructions of her agent, she travelled to Liaoning Province where she stayed for two days to obtain the passports that were used for the applicants’ visitor visas. She is not in possession of her national identity card which she left in China;
·She resides at [Address 1, Suburb 2] with the applicant husband and her landlord and landlord’s family which is the same address where she lived when she lodged the protection visa application;
·She was assisted with her protection visa application by members from her church;
·She continues to use the same email address [that] she used in China;
·The applicant wife’s family have not had any problems in China since the applicants have been living in Australia;
·The applicant wife initially claimed she came to Australia to seek protection because she joined church activities in China and would continue with her church activities. She subsequently claimed she only learnt about the protection visa later and that this was the reason she allowed her visitor visa to expire as she thought she was safe when she landed;
·She stated she was a Christian of the Local Church and that she converted six or seven years ago in 2013 or 2014 and was baptised in China around that time;
·When asked what her religion was before she converted to the Local Church she replied, ‘Had no religion before converted to the Local Church’;[2]
[2] Applicant wife’s Departmental Record of Interview at 48:11 minutes
·Only after the interviewing officer indicated that some of her answers came across as confused as if she did not know her own history, did she then claim she was born into a Christian family who was already part of the Local Church;
·When asked why she told the interviewing officer that she converted to the Local Church when she was already born into the family church in [year], she claimed she was too little and did not attend all the activities and then converted as a member of the Local Church;
·She was baptised in 2013 at the age of [age] and did not get baptised earlier as she believed she was too young;
·The applicant husband is also a Christian and Member of the Local Church. He was born into the religion and his parents are adherents of the Local Church and members of the same church;
·The applicant wife was not the leader of her Church in China;
·The applicant wife attends [Church A] located at [Address 2] once per week on a Sunday. She started attending two weeks after she arrived in Australia and chose the church as her landlord is a church member and bought her there. She did not know the name of the church leader;
·Her husband, parent-in-laws and parents have never been arrested or detained by the Chinese authorities despite also being adherents of the Local Church;
·The applicant was arrested at [night in] October 2016. At the time she claimed her husband was at work. When asked why her husband and in-laws were not arrested she claimed because they were not at the gathering;
·She did not practise her religion after she was released from detention; and
·The applicant wife had no evidence to support that she attends church in Australia.
Post-interview, the applicant provided a supporting letter from [Church A] signed by three ‘responsible ones’ which indicates the applicant is a member of [Church A] and has been regularly meeting since 2017. The applicant also provided a Certificate of Release from Detention purportedly issued by [PSB Detention Centre 1].
Delegate’s Decision
The delegate did not accept that the applicants were members of The Local Church when residing in China and did not accept that the applicant wife was arrested and imprisoned for reasons of her religion. The delegate also did not accept that the applicants were genuine and committed Christians in Australia.
In reaching this decision, the delegate noted the seven and a half month delay in applying for the protection visa; the fact that the applicant husband did not raise claims of his own which the delegate regarded as ‘extraordinary’ and was not referred to in [the Church A] support letter; the applicants’ families have not come to the adverse attention of the Chinese authorities despite being adherents of the Local Church and despite the applicant husband’s parents being the owners of the apartment where the church gathering was held and the applicant husband residing at the address; the applicant wife used a Chinese domain email address to lodge the protection visa application (and continues to use the email address) which can be monitored by the Chinese government; and country information indicates that if the applicants were of interest to the authorities they would have had difficulty departing China due to the government maintaining exit control lists and airports having facial recognition technology and centralised security monitoring capabilities.
The delegate was also not satisfied that the Certificate of Release from Detention was a genuine document noting country information indicates there is a high prevalence of fraud in the Fujian Province. The delegate considered the contents of the applicants’ visitor and protection visa applications and country information which indicates there is a well-established history of individuals from the Fujian Province using fraudulent documents to obtain visas to Australia. The delegate found that the applicants were from the Fujian Province and that the information in their visitor visa applications was fraudulent which indicated the applicants were willing to provide fraudulent information in their visa applications to obtain a desired outcome.
The applicant wife could not provide the name of the Church Leader in Melbourne despite claiming to attend church on a weekly basis since February 2017. Her knowledge of the religion was also poor. The supportive evidence from the church was vague and lacked detail and did not refer to the protection visa.
Tribunal evidence
At hearing the applicants elaborated on their claims to fear persecution from the Chinese government due to their religion and membership of the Local Church. The applicants were each asked about their religion at birth and growing up and about their families’ religions. The applicants were each asked how they practised their religion in China and what they did at gatherings. The applicants were asked how the Local Church was different to other Christian religions and the important differences between them. The applicants were asked how they practised their religion in Australia and when they started attending church. To test the applicants’ claims of having strong Christian beliefs, the Tribunal asked each of the applicants questions about Christianity. The Tribunal also discussed the claims of the applicant wife being arrested, interrogated and detained by Chinese authorities.
The applicants each gave evidence that they were born into the Local Church and raised as members of the Local Church. They each gave evidence that their entire families are adherents of the Local Church and that they attended gatherings with their parents since they were young children. The applicant wife told the Tribunal that she started attending church gatherings since the age of [age] with her parents until the age of [age] on a weekly sometimes monthly basis. The applicant husband gave evidence that since his childhood he attended gatherings once to twice per week and had friends over for bible studies from the age of [age] years until he departed for Australia. The applicant husband told the Tribunal that he was baptised at the age of [age]. The applicants each gave evidence that they did not attend an officially sanctioned church but would attend different homes of church members. The applicants each gave evidence that they had bibles in China. The applicant wife stated that she read the bible every night and that she had read the bible since she was baptised in 2013. The applicant husband stated he had a bible in China and would read two to three chapters a week. The applicants each gave evidence that they were not Church leaders in China. The applicants each gave evidence that their families and respective families had no difficulty practising their Shouter religion in China and had not come to the adverse attention of authorities.
The applicants gave evidence that they started attending [Church A] two weeks after their arrival in Australia in February 2017 after being introduced by their landlord who is a church sister and attend church every Sunday. The applicant wife also gave evidence that she attends online bible gatherings on Thursday nights and attends a church sister’s home on a Friday evening. She stated she has a bible in Australia and that she reads the bible every day. The applicant husband also gave evidence that he has a bible in Australia which he reads two to three days per week. At hearing, the Tribunal raised various concerns regarding the credibility of the applicants’ claims. The applicants’ evidence is discussed further below in the Tribunal’s findings.
Tribunal Findings
Whilst the Tribunal has considered all the facts and evidence submitted, it refers in its findings only to the evidence it considers necessary to explain its reasoning. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in this case. 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.[3]
[3] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145.
The Tribunal does not accept the applicants’ claims that they and their families were adherents of the Local Church when residing in China. The Tribunal does not accept that the applicant wife was arrested, interrogated and detained while living in China. The Tribunal has also considered the applicants’ claims that they have practiced Christianity in Australia but is not satisfied that they are genuine and committed adherents of the faith. The Tribunal also does not accept that the applicants would be imputed with any religious and/or political beliefs opposed to the Chinese government due to attending church in Australia that would put them at risk of harm if they returned to China. The reasons for this are considered cumulatively below.
First, there were significant inconsistencies in the applicants’ evidence regarding material aspects of their protection claims which cause the Tribunal to have serious concerns regarding the applicants’ credibility and the truthfulness of their claims. For example:
a.At hearing, the applicant wife claimed she was born a Shouter into the Local Church and never converted. This is inconsistent with her record of interview where she first claimed she was a Christian who converted to the Shouter religion in 2013 or 2014. At interview she later claimed she never had a religion before converting to the Local Church. She then recanted this evidence and claimed she was born into the Shouter religion. When the Tribunal raised the above inconsistencies with the applicant wife, she claimed that her record of interview interpreter must have translated incorrectly and that the interviewing officer had commented there was a problem with the interpreter;
b.The applicant wife claimed in her protection visa application and record of interview, that only she was arrested by the Chinese authorities at the church gathering hosted at her home. Whereas at hearing, she claimed that everyone at the gathering was arrested. In support she produced a letter at hearing from a fellow church Member from Fuqing City, who claimed that the applicant wife along with fellow church members were taken away for questioning. At hearing, the Tribunal indicated it had concerns that the document had been generated to bolster her protection claims and to address concerns raised by the delegate which indicated the illogicality in her claims that only she was arrested. This is despite her husband residing at the same address and his parents owning the property and being Shouter adherents and there being other fellow church members present at the gathering. The applicant wife claimed what she was telling the Tribunal was the truth. She then claimed she was not asked specific questions at interview so did not provide details;
c.The applicant husband told the Tribunal that after his wife was released from custody he had no further trouble in China up until he departed for Australia. When the Tribunal discussed his delayed departure from China which indicated that his claims of harm may not be true, he then claimed that police would visit their home entering the property. When the Tribunal indicated this was inconsistent with his earlier evidence and his wife’s evidence that she had no further problems or contact with the authorities but that they conducted irregular surveillance, his evidence was confused and he was unable to reconcile the differences claiming the police relaxed their monitoring due to Chinese New Year to then claiming they conducted home visits and would enter the property to say hello; and
d.The applicant husband, when asked about his Shouter faith and how he practised the religion, originally told the Tribunal that he organised bible gatherings once to twice a month from [age] until he departed for China. Later at hearing, he claimed that he did not practice the Shouter religion after his wife was released from detention. When asked to reconcile the differences he stated he went to brothers and sisters homes.
In relation to the inconsistencies in the applicant wife’s religion, the Tribunal has listened to the record of interview and rejects her claims in their entirety. Neither the applicant wife nor interviewing officer raised concerns regarding the accuracy of the interpreter. To the contrary, the interviewer raised concerns that it did not appear that the applicant wife knew her own history and religion.[4] The Tribunal regards the applicant wife’s explanation to be highly unsatisfactory.
[4] Applicant wife’s Departmental record of interview at 49 minutes.
The Tribunal does not accept the applicants’ explanations for the significant inconsistencies in their protection claims. While it is understandable that the applicants would be nervous when giving their evidence to the Tribunal, the Tribunal does not accept this caused them to forget, confuse or misdescribe their personal history and religious practices, the arrest by Chinese authorities and the circumstances in which they left China. The Tribunal considers these matters to be integral elements of their claims and if these matters and events were true the applicants would have expressed them consistently.
The Tribunal does not accept the applicant wife’s claims that she did not know how to detail her claims of the arrest as evidenced by the level of detail in her protection application. The Tribunal is also satisfied that she was given a fair opportunity to ventilate these claims at interview. The Tribunal does not accept that the applicant wife would overlook material elements of her claims in her visa application and would not have discussed these events at interview if this had in fact occurred. This is further supported by the fact that she repeated her claims that only she was arrested in a statutory declaration dated 23 March 2025 at paragraph [19]. The Tribunal does not regard the inconsistencies to be minor and considers the applicant wife has manufactured the claims that everyone at the gathering was arrested to bolster her visa application as she was acutely aware of the illogicality that only she was arrested by the Chinese authorities. Similarly, the applicant husband was unable to provide a meaningful explanation for the inconsistencies in his claimed religious practices and his latter claims that the authorities would enter their property. The shifting and inconsistent course of the applicants’ evidence leaves the Tribunal entirely unconvinced that the applicants left China for the reasons claimed.
Second, whilst the applicants claimed they were born into the Local Church and had practised the religion since their childhood, their knowledge of the religion was extremely limited. In response to basic questions about the Shouter religion the applicants were unable to offer any information beyond the most banal generalities. Their evidence of their practice was also vague, unsatisfactory and unconvincing and they were unable to articulate with any conviction that they were practising Local Church members. For example:
a.When asked how the applicant wife practised her religion in China she replied, ‘Pass on good news to people. Sing hymns and prayer. Bare testimony’. When asked what bare testimony meant she replied, ‘Share her experience with people’;
b.When asked how the applicant husband practised the Shouter religion he stated he would attend gatherings on Sunday and practice every Thursday and Friday and was unable to provide further detail;
c.When asked how a Shouter Church was different to other churches the applicant wife replied that ‘Shouter members can shout Jesus name loudly. Father, son and spirit are in one body. We can stamp our feet on the floor. We can read verses in the bible’;
d.When the applicant husband was asked how the Shouter religion was different to other Christian religions and to give examples he replied ‘Shout everything out loud. Pat our feet. Repeat what written in bible’; and
e.When the Tribunal asked the applicant wife what she did at the church gatherings she stated the church members would ‘gather’ and shout Jesus name and sing hymns. When asked what she learnt about Christianity at the gatherings she replied ‘We learn a lot from gatherings. We need to treat people as what we want to be treated and also devotion’.
The Tribunal is entitled to have regard to an applicant's level of knowledge of matters about which the applicant would reasonably be expected to know if their claims were truthful; Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827. The Tribunal is mindful not to require an unrealistic degree of precision and detail or to impose too high a standard when assessing the applicant’s level of knowledge. In isolation, this may explain the applicants’ inability to provide details in respect of some matters, however, when the Tribunal considers the totality of the applicants’ evidence, the Tribunal does not accept that the applicants would be unable to provide such details. The Tribunal considers the applicants’ evidence regarding their Shouter beliefs and practising the Shouter religion to be incongruent with her claims of being Shouter devotees since young children. It is also inconsistent with their claims of having bibles in China and reading and studying the bible regularly and attending gatherings. The applicants’ answers to questions about the Shouter religion were devoid of any detail and anecdotal to the extent that the Tribunal concludes that the applicants are not and never have been members of the Local Church.
Third, whilst the applicants claimed they fled China over eight years ago so they could practice their faith and claimed they had continued to practise Christianity, including joining a church within two weeks of their arrival in Australia and attending weekly, their knowledge of the Christian religion was not commensurate with people who were active and committed members of the Church. For example:
a.When asked to recite the Lord’s Prayer, the applicants were unable to do so despite being given multiple opportunities:
i. The applicant wife initially asked, ‘Do you have a specific verse’. When the Tribunal replied ‘It’s the Lord’s Prayer’ she replied, ‘I don’t understand which verse you want me to recite. When the Tribunal repeated it a third time she stated, ‘If a wheat fall on the ground I will tell you this if a wheat does not fall on the ground its still just one if a wheat fall into the ground it will have a lot wheat grown’. When the Tribunal indicated this was not the Lord’s Prayer and that it raised concerns she was not a Christian and an active member of the church as claimed she replied ‘Jesus Christ, I trust you. I need you. I trust you will be my saviour and the lord in my life’; and
ii. Similarly, the applicant husband did not know stating, ‘My father in the heaven, I hope people will respectfully call your name as saint. I hope your country could come down to the earth. Use your will to work your walk in the heaven’;
b.When the Tribunal asked the applicant wife whether she knew the 10 commandments she replied ‘God said we can’t be greedy for getting other people’s property. Servant, cows and donkeys. Wives. All other things. To care parents so life in the world will be longer’; and
c.When the Tribunal asked the applicant husband what Lent was he did not know.
At hearing the Tribunal raised with the applicants concerns that they were not genuine and committed Christians as they failed to demonstrate basic knowledge of Christianity. The applicants then claimed there was a problem with the interpreters. The Tribunal rejects these claims in their entirety. The Tribunal makes this assessment as these claims were only raised retrospectively by the applicants after the Tribunal indicated that their answers were inconsistent with that of active and committed Christians. The Tribunal also makes this assessment as at the commencement of the hearing, the Tribunal Member explained that if there were any concerns about the interpreter they were to immediately notify the Tribunal who would address those concerns. They did not do so. The representative who could speak the Mandarin language also undertook to immediately notify the Tribunal if there were any concerns about the interpreting and did not do so. The Tribunal considers the applicants made these claims as they were aware they performed poorly and were attempting to mitigate the pitfalls in their evidence. The Tribunal notes the applicants made such claims against all three hearing interpreters and the interpreter at the Departmental record of interview five years ago. Whilst an interpreting error may explain a single inaccuracy in their evidence, the cumulation of claimed issues experienced by the applicants is simply not plausible. The interpreters are all highly experienced regularly interpreting for the Tribunal. The Tribunal is also satisfied that it asked questions fairly and did not consider requests by the applicants, such as rephrasing the Lord’s Prayer to be reasonable, as this is its given term.
Pursuant to s 5(J)(6) of the Act, the Tribunal explained to the applicants that any conduct engaged in by the applicants in Australia must be disregarded in determining whether they have a well-founded fear of being persecuted for one or more of the Convention grounds unless the applicant satisfies the decision maker that they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.
The applicant wife repeated that she attends church every Sunday and does Internet bible studies on a Thursday night and attends a church sister’s home on a Friday night. The applicant husband repeated that he joined a church within two weeks of his arrival in Australia and that he applied for the protection visa much later and therefore his church activities were genuine and not to facilitate his visa application. Post-hearing the Tribunal received photographic evidence of the applicants attending [Church A] and a statutory declaration from the applicant wife in support.
Based on the totality of the evidence before the Tribunal, including the applicants’ overall credibility, the Tribunal does not accept that the applicants joined the church because of their commitment to the Local Church practice and belief. The Tribunal is not satisfied that the applicants’ participation in church in Australia has been otherwise than for the purpose of strengthening their claim to be a refugee within the meaning of the Convention. Accordingly, the Tribunal must disregard the conduct engaged in by the applicants in Australia.
Fourth, other than making the oral assertion that they were Shouters in China and the letter produced at hearing purportedly by a church sister in China, the applicants provided no corroborative evidence to support their claims that they were members of the Local Church in China. Whilst the letter claims that the applicant wife hosted a gathering and everyone was arrested, the author of the letter was not available for questioning and the contents of the letter cannot be verified by any independent body. For reasons discussed in this decision record, the Tribunal has concerns that this letter was generated to bolster the applicants’ visa application and address illogicalities in the applicant wife’s claims that only she was arrested. In view of the other findings made, the Tribunal gives this letter no weight. While not determinative in itself, the Tribunal considers it would be reasonable to expect there to be some evidence that the applicants were Shouters in China, particularly noting their claims that they were members since birth.
Fifth, the Tribunal does not accept that the applicant wife was arrested, detained and interrogated. The applicant wife’s evidence was inconsistent and lacking in the type of detail expected to accompany a person who had been detained for seven days. For example:
a.In the applicant wife’s protection visa application, she claimed that only she was arrested. Yet at hearing, she claimed that six other members from the gathering were arrested for questioning. For reasons outlined above, the Tribunal does not accept the applicant wife’s explanation for the inconsistencies in her claims;
b.The applicant husband and his parents were not arrested despite being adherents of the Shouter religion and being either residents or owners of the property where the gathering was held. The Tribunal has considered the applicant wife’s claims that they were not arrested due to not attending the gathering, but regards this explanation to be highly unsatisfactory and indicative that she was never arrested;
c.When asked how she spent her days in the detention centre and what happened during that time, the applicant wife was unable to provide any detail other than claiming she was hit and spat on and ‘spent seven days being scared’;
d.When the Tribunal asked the applicant wife what questions the authorities asked her during her interrogation her responses were scant and unconvincing. She replied, ‘Why do you participate in such gathering’ and ‘Ask me where do you attend gatherings’;
e.When asked why they released her from detention she replied, ‘I have no idea. They didn’t tell me why. But they just release me’. The applicant husband also did not know why; and
f.At question 73 of the applicant wife’s protection visa application, she made various character declarations including that she had never been the subject of a criminal investigation or committed a serious crime but not been charged. The Tribunal put to the applicant wife that her claims of being arrested, investigated and detained (but not charged) appeared inconsistent with this declaration and asked why she did not make a declaration. The applicant wife claimed that she did not think her conduct was a criminal offence and as she was only detained she did not think she needed to put in more information. The Tribunal has considered the applicant wife’s explanation but regards it as unsatisfactory and inconsistent with her claims that her religion is illegal in China. It is the Tribunal’s assessment that if the applicant had been arrested and detained as claimed, she would have declared this in her visa application at question 73 as it would have strengthened her claims.
The Tribunal does not accept that the Certificate of Release from Detention is a genuine document. As discussed at hearing, there is no PSB logo, it contains scant detail and DFAT country information indicates that document fraud is prevalent in China and DFAT assesses that such documents are relatively easy to obtain.[5] The Tribunal makes this assessment, noting the applicant wife was prepared to obtain and provide fraudulent documents in the visitor visa applications including travelling to the Liaoning Province to obtain fraudulent passports for each of the applicants. She was also prepared to represent to the Department in her bridging visa application that she lived without her husband and submitted various documents in support despite this not being the case. The Tribunal has considered the applicant wife’s claims that she is a Christian and does not lie and that the visitor visas were prepared with the assistance of an agent but regards these explanations to be entirely unsatisfactory and when viewed in combination with the Tribunal’s credibility concerns demonstrates that the applicant wife is prepared to make any representations or omissions she thinks will advance her case to obtain a protection visa.
[5] DFAT – DFAT Country Information Report People’s Republic of China dated 27 December 2024.
The applicant wife had no evidence to corroborate her claims that she was assaulted during her incarceration such as photographic or medical evidence. This is despite her claiming to have bruises all over her body upon her release and her husband observing them. Again, while not determinative in itself, the Tribunal considers that it would be reasonable to have some evidence given her claimed experience of being injured in custody and her claims of why she left China.
Six, despite the applicants claiming that their respective families are members of the Local Church, their families and [Child A] have not come to the adverse attention of the Chinese authorities for reasons of their religion. The applicants confirmed this remained the case at the time of hearing.
Seven, the Tribunal does not accept the applicants would leave their [only] child in China if they feared persecution from the Chinese government. When asked why they left their only child behind, the applicant wife first claimed she ‘just wanted to leave China’ and her agent could not help [Child A]. When asked why they could not help, she claimed, ‘This type of visa doesn’t allow the child to come’. When the Tribunal indicated that was not the case and asked the applicant wife to identify what the difficulty was, she simply repeated the agent could not help [Child A] and claimed they did not tell her the reason. When the Tribunal asked the applicant husband why he did not bring [Child A] to Australia, he claimed [he/she] was very young and not allowed by the travel agency. When the Tribunal put to the applicant husband that [Child A is] permitted to travel internationally and that most airlines offer free or significantly discounted airflights for children under the age of two because they are required to be accompanied by an adult (and can sit on their parent’s lap without a seat booking), the applicant husband then claimed he was too scared to take [Child A] due to the Malaysian airline accident.
The Tribunal has considered the above explanations but does not regard them to be satisfactory or credible. The Tribunal does not accept that any mother would leave their child behind in a country where they feared persecution without an adequate explanation why they could not take their child with them. The Tribunal has considered the applicant husband’s claims regarding the Malaysia Airline crash but regards them to be incredulous and inconsistent with the fact that both he and his wife were prepared to undertake international air travel. Rather, the Tribunal considers that if the applicants were so in fear as claimed, it would be all the more reason for them to take their only child with them. The Tribunal considers their behaviour to be highly incongruent with their claims of fearing persecution from the Chinese government.
Eight, the applicants were able to travel to Australia freely notwithstanding the applicant wife’s claims that she had been arrested three months earlier in October 2016. As noted in the delegate’s decision record, country information indicates that if a person is wanted or of adverse interest to government authorities it is difficult for them to depart the country. This is because the government maintains exit control lists which monitor departing passengers. The Tribunal also explained this is because China has sophisticated surveillance systems including a biometric database at international checkpoints which means that people are stopped at the border.[6] The applicants were asked if they were of such interest to the Chinese authorities why they were able to leave China so easily. The applicant wife claimed everything was organised by their travel agent and the applicant husband claimed that unless you had a criminal record or a debt the authorities would not stop you.
[6] Ibid.
Whilst the Tribunal accepts the applicants departed China on false passports, the fact that they were able to obtain visas and depart China and travel to Australia without arousing the attention of the Chinese authorities strongly suggests they are not of any adverse interest to the Chinese authorities due to their religion or for any other reason. The Tribunal has considered the applicant husband’s claims that only people with a criminal record or debts are apprehended but prefers the country information over his claims. The Tribunal acknowledges that whilst technology today may be more sophisticated than in 2017, it appears unlikely that if the applicants were wanted by the Chinese authorities after such a recent arrest they would have been able to depart freely.
Nine, the applicants did not apply for protection until seven and a half months after arriving in Australia and after they became unlawful non-citizens. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that an applicant does not have a well-founded fear of harm; Zhang v RRT & Anor [1997] FCA 423 and Kavun v MIMA [2000] FCA 370. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness of an applicant’s fear of persecution; Subramaniam v MIMA [1998] FCA 305.
The Tribunal does not accept the applicants’ explanation that they did not know they could apply for protection. The Tribunal finds the timing of the protection visa to be inconsistent with the applicants’ narrative about their claims of leaving China. The Tribunal does not accept that the applicants would not have been told about the protection visa by some of the Chinese speaking people they had met in Australia. The Tribunal makes this assessment noting their evidence that they joined a church within two weeks of their arrival in Australia, after being introduced by their landlord and were told by the church they could apply for protection visas. The Tribunal also makes this finding, noting the applicant wife has a cousin in Australia who provided them with assistance and the applicants found time to obtain gainful employment. Furthermore, the Tribunal does not accept that the applicants would not have made an effort to find out about the protection visa from their agent in China if in fact they feared persecution in China because of their religion and the applicant wife’s arrest. Taken together with the Tribunal’s credibility findings, the Tribunal does not consider the explanation for delaying the protection visa to be credible and finds it more likely that if the applicants’ protection visa claims were true, they would have made an application for protection at the earliest opportunity or sought advice as soon as possible.
Ten, the Tribunal notes the applicant husband did not make claims of his own. At hearing, the Tribunal asked him why he had never made claims to the Department and Tribunal and did not attend the record of interview. The applicant husband claimed because his wife was the primary applicant and he never knew he had to provide evidence to the Department or Tribunal. In relation to his failure to attend the record of interview, he claimed he needed to work to support his family and did not have time to participate. The Tribunal has considered the applicant husband’s explanation but regards it to be highly unsatisfactory and incongruent with his claims of fearing harm in China. The Tribunal finds it extraordinary that the applicant husband would prioritise work over attending a two hour interview in circumstances where the applicants claim they will be persecuted if they return to China and noting their [child] is not in their care. When viewed in conjunction with the Tribunal’s other finding, it raises serious doubts that the protection claims are true.
Eleven, the applicant wife used an email address with a Chinese domain to lodge the protection visa with the Department i.e.[Email address 1]. The applicant wife has continued to use this email address to communicate with the Tribunal. She gave evidence that she has continued to use the email address for the applicants’ daily living in Australia. The Tribunal referred to country information which indicates that the Chinese government monitors such communications which raised doubts that the applicants fled China due to fearing the government.[7] The applicant wife indicated she was unaware of this. The Tribunal has considered but does not accept the applicant wife was unaware that the Chinese government heavily monitors online content including emails. The Tribunal considers the fact that the applicant wife used and has continued to use a Chinese domain email address in Australia, including with the Department and Tribunal in respect to the protection visa application, strongly indicates that that applicants do not have a genuine fear of the Chinese Government on the basis of their religion or for any other reason.
[7] Ibid.
Twelve, the applicants conceded that the information and documents used in the visitor visa applications were false but claimed that the information and documents used in their protection visa application were true and correct. The applicant wife gave evidence of travelling to Liaoning Province for the purposes of obtaining fraudulent passports for the applicants’ visitor visa applications. At hearing the Tribunal put to the applicants that given they had been prepared to provide false information and documents to obtain their visitor visas in the past, why the Tribunal should not conclude they were doing the same in respect of their protection visas. The applicants each claimed the visitor visas were facilitated by a travel agent. The Tribunal also referred the applicant wife to her bridging visa application where she claimed financial hardship and provided documents representing that she did not have a husband which was not the case. The Tribunal explained this was relevant to her credibility and indicated that it may suggest that she was prepared to make any representations to facilitate a migration outcome. The applicant wife denied this was the case and claimed the evidence in support also included her husband.
The Tribunal does not agree, as this is not supported by the banking evidence, rental receipts or letter from the landlord. The Tribunal has considered the applicants’ evidence and the above visa applications. Given their readiness to provide false and misleading information and documents in the past and when considered in conjunction with the Tribunal’s other findings detailed in this decision record, the Tribunal cannot rule out that the applicants have done the same for the purpose of obtaining a permanent protection visa. When considering the totality of the evidence, the Tribunal considers that the applicants are prepared to make any representations and omissions to suit their purpose.
For the above reasons, the Tribunal does not accept that the applicants were members of the Local Church in China or that their family members are Local Church members. The Tribunal does not accept that the applicant wife was arrested, interrogated and detained while living in China. Whilst the applicants claimed to be regular and active members of a church in Australia, the Tribunal is not satisfied that the applicants have engaged in this conduct otherwise than for the purpose of strengthening their claims to be refugees. The Tribunal does not accept that they joined the church in Australia because of their commitment to the religion. As the Tribunal has not accepted that they were active and committed Local Church members or have been active in the church in Australia the Tribunal does not accept they will become an active and committed members when they return to China. The Tribunal also does not accept that the applicants would be imputed with any religious and/or political beliefs due to attending church in Australia that would put them at risk of harm if they returned to China.
It follows that the Tribunal does not accept there to be a real chance the applicants will be harmed by any person or group for reasons of their religion or for any other reason if they return to China now or in the reasonably foreseeable future. For the same reasons, the Tribunal does not accept there to be substantial grounds for believing that there is a real risk that the applicants will suffer significant harm from any person or group for reasons of their religion or for any other reason as a necessary and foreseeable consequence of being removed from Australia to China.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
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 is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicants 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 applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas.
Date(s) of hearing: 14 May 2025
Representative for the Applicant: Mr Pei Ling Zheng (MARN: 0323862)
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.
…
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