2014066 (Refugee)

This case concerned applications for protection visas by a family unit from China. The first applicant, a Chinese citizen, arrived in Australia in 2008 and subsequently formed a de facto relationship with the second applicant, resulting in the birth of their child, the third applicant. The first applicant's claims for protection stemmed from her conversion to Christianity and her intention to join the Salvation Army, an organisation banned in China. She feared persecution, including arrest, imprisonment, mental torture, and physical harm, if returned to China, and argued that her child would also face discrimination.

The court was required to determine whether the first applicant had established a real risk of significant harm if returned to China, specifically in relation to her religious beliefs and activities. This involved assessing the extent to which the Chinese government's prohibition of the Salvation Army and its enforcement measures would impact her. Additionally, the court needed to consider whether the risk faced by the applicant was general to the population or specific to her circumstances, and whether any protection could be obtained from Chinese authorities or through internal relocation within China. The court also had to consider the definition of "member of the same family unit" under the Act and Regulations in relation to the applicants.

The court reasoned that for a real risk of significant harm to be established, it must not be a risk faced by the general population unless the applicant personally faces it. The court also considered the provisions of section 36(2B) of the Act, which outline circumstances where a real risk of significant harm is not taken to exist, including the availability of reasonable relocation or state protection. The court noted the historical ban on the Salvation Army in China and the potential consequences for members, including imprisonment. The court also referred to the definition of "member of the same family unit" as provided in section 5(1) of the Act and regulation 1.12 of the Regulations, which includes de facto partners and dependent children.

The decision under review was remitted for reconsideration.