2106688 (Refugee)

[2023] AATA 4708

2106688 (Refugee) [2023] AATA 4708 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Billie Wei Shi (MARN: 9792783)

CASE NUMBER:  2106688

COUNTRY OF REFERENCE:                   China

MEMBER:Frank Russo

DATE:1 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 1 November 2023 at 4:12pm

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Christianity – baptised as child and attended underground church with parents and later friends – parents arrested and detained, and current whereabouts unknown – one short return visit – ceased studying and period as unlawful non-citizen – attendance, second baptism and activities in Australia not primarily for purpose of strengthening claim – understanding consistent with genuine practitioner, and supporting documentation – inconsistent and uncorroborated evidence about parents’ disappearance – members of family unit – husband and oldest child secondary applicants – younger children born after refusal decision – two children attending church school – country information – moderate risk of official discrimination and unable to practise freely – prohibition of religious education of those under 18 – state protection and relocation not available – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (b)(i), (2A), (6), 65, 426A(1A)(b)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILEA (1994) 52 FCR 437, 124 ALR 265

Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 October 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas on 18 June 2015. The first-named applicant (the applicant) is a [Age]-year-old Chinese national. The second-named applicant is the applicant’s [Age]-year-old daughter, also a Chinese national. The third-named applicant is the applicant’s [Age]-year-old husband, also a Chinese national.

3. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicants are refugees as defined by s.5H(1) of the Act and are not persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicants will suffer significant harm as outlined in s.36(2)(aa) of the Act, and therefore are not persons in respect of whom Australia has complementary protection obligations.

4. On 8 October 2019, the Tribunal (differently constituted) dismissed the application for review under s.426A(1A)(b) of the Act on the basis that the applicants did not appear before the Tribunal at a hearing scheduled for 30 September 2019. The applicants did not apply for reinstatement within the 14-day period set out in the Tribunal’s notice of the dismissal, and therefore on 23 October 2019 the Tribunal confirmed the decision to dismiss the application.

5. That decision was set aside by the Federal Circuit Court by consent on 10 May 2021, on the basis that the Department conceded that the decision of the Tribunal (differently constituted) dated 23 October 2019 was affected by jurisdictional error. This was because the applicants, in their response to the invitation to the hearing on 30 September 2019, answered ‘no’ to the question whether they would take part in the hearing. The Department accepted that in these circumstances, it was not reasonably open for the Tribunal to proceed to dismiss the application under s.426A(1A) without considering whether the applicants’ failure to appear at the hearing was because they had consented to the Tribunal deciding the matter on the papers. The matter is now before the Tribunal pursuant to an order of the Court.

6. The applicants appeared before the Tribunal on 9 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The applicants were represented in relation to the review, although their representative did not attend the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that they will suffer significant harm.

15. The applicants provided with their application for review, a copy of the decision of the delegate and notice of the decision, together with a copy of the biodata pages of the applicant’s passport and a baptism certificate for the second-named applicant, dated 21 August 2016, issued by [Church]. On 30 September 2019 the applicants provided a response to a hearing invitation from the Tribunal (differently constituted) in which they indicated ‘No’ in response to the question ‘Will you take part in the hearing scheduled for 8 October 2019?’ It was attached to an email from the applicants’ representative, confirming that the applicant had decided not to attend the hearing.

16. Following remittal of the application to the Tribunal, the applicant sent the Tribunal a request to have a second daughter added to the application for review. The Tribunal provided a response which indicated that if the applicant’s daughter was born after 5 October 2016, namely after a decision had already been made on the visa application, the child is not taken to have applied for the Protection visa and may lodge their own application for a Protection visa.

17. On 28 April 2023, the Tribunal wrote to the applicants, noting that on 30 September 2019 they had provided a response to a hearing invitation which indicated that they would not participate in the hearing scheduled for 8 October 2019, and had therefore consented to the Tribunal making a decision on the application for review without taking any further action to allow or enable them to appear before the Tribunal. The Tribunal requested that the applicants confirm whether they still consented to the Tribunal making a decision on the papers without inviting them to attend a hearing.

18. On 1 May 2023 the applicants’ representative provided an email which indicated that the applicant wished to attend a hearing. The email also attached copies of the second-named applicant’s [School year] report from 2021 and [School year] report from 2022, issued by [Catholic Primary School], as well as copies of four school awards issued to the second-named applicant. On 1 May 2023, the applicants provided further copies of these documents, as well as:

    a.New South Wales birth certificates for the applicant’s daughter, [Child 1], born in [Year], and son, [Child 2], born in [Year];

    b.Baptism certificate for the applicant’s daughter, [Child 1], dated [Date], issued by [Church];

    c.Certificate of Bible Reading, issued by [Church] to the applicant on 26 August 2018; and

    d.Photographs of the applicant, taken on the day of her baptism.

19. The applicant also provided a response to the hearing invitation for 9 June 2023.

20. The Tribunal has also had regard to the documents on the Department file, which include the application for the Protection visa, copy of the birth certificate of the second-named applicant and documents in support of an application for change in conditions to the applicant and third-named applicant’s Bridging visas to include work rights, including copies of financial and medical documents.

21. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.

22. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

23. The applicant and second-named applicant provided copies of their Chinese passports to the Department and to the Tribunal, as well as a copy of the New South Wales birth certificate of the second-named applicant. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicants are who they claim to be, that they are nationals of China, which is also their receiving country.

24. The applicants claimed at the hearing that they did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicants do not have a right to enter and reside in any third country.

    Claims

    Claims made with visa application

25. At Questions 87 and 88 of their Part C application forms, the second-named and third-named applicants confirmed that they were not making any claims of their own for protection. This is confirmed at Question 2 of the Form B application form completed by the applicant, in which she indicates that she is raising her own claims to protection and the third-named applicant was not raising any claims of his own (the second-named applicant was not yet born at the time the applicant lodged the Protection visa application).

26. The applicant provided a statement in English with her Protection visa application, in which she claims the following:

    a.She is from Fujian, China, and came to Australia in 2007 holding a Student visa when she was [Age] years old. Her parents sent her to Australia because they faced persecution because of their involvement in an underground church and they worried about her safety;

    b.She completed some of her educational courses in Australia, but couldn’t continue further after completing a Diploma in 2020 because of financial reasons;

    c.Her partner comes from the same city as her and shared similar experiences. His mother tried to escape to [Country] because of her involvement with the underground church. His mother left for [Country] when he was about [Age] years old but was detained by the [Country] government and sent back to China. This resulted in her being locked up by the Chinese government for about one month. Payment was also demanded for her release;

    d.The applicant is from an ordinary family and her parents are ordinary God followers. They were detained and locked up for getting together with other churchgoers and studying the Bible. They were accused for not attended the local registered church and for not obeying the government;

    e.The applicant’s sister was sent away not longer after the applicant left for Australia. The applicant has lost contact with her parents and sister as no-one is answering the telephone. She prays to God every day and hopes that her parents are still safe. She dares not return to China as she does not know what happened to her parents; and

    f.The applicant is pregnant. They do not have enough documents to register their marriage. They are unable to tell their church friends that they no longer hold visas and are afraid someone might disclose their situation, and that they could be detained and sent back to China. Neither the applicant nor her partner wish to return to China, especially after finding out the applicant is pregnant.

    Departmental interview and delegate’s decision

27. The applicants provided a copy of the delegate’s decision with their application for review. The decision records that the applicant attended a Departmental interview on 13 April 2016.

28. The delegate’s decision indicates that the applicant gave the following testimony at the interview:

    a.She attended church with her parents as a child, however her sister and grandparents did not attend church. They attended a church building, although sometimes also attended at someone’s house. She did not know if it was a registered church;

    b.She does not know if other people were arrested when her parents were arrested;

    c.Her parents sent her to Australia to be safe. She had not applied for a Protection visa when she arrived because she had a Student visa. She did not apply for protection when her Student visa ran out because she was ‘lost’;

    d.When she returned to China in September 2010, her baggage was searched at the airport, and she was questioned about the reason for her visit. She answered that she was visiting her grandmother and gave the address of her grandparents, after which she was allowed to enter China;

    e.She does not know where her parents are and they do not answer their telephone. She stated that she did not know where her sister is, but later in the interview, stated that she presumed her sister was living with her aunt as her grandparents could not look after her. She does not have the telephone number for her aunt;

    f.She claimed she is Christian and was first taken to a church in [Suburb 1] by a girlfriend she lived with. She did not know the name of the church. She has attended a church in [Suburb 2] but did not know the name of the church. She has always attended churches which have Chinese services;

    g.The applicant did not know the names of any of the books of the Bible. She knew some basic information about Adam and Eve and about the life of Jesus Christ. She stated that she did not read the Bible because she has a baby;

    h.The applicant’s grandparents contact the village committee regularly regarding the whereabouts of her parents. Her grandmother has asked for them at the police station, but the police say they do not know where the applicant’s parents are;

    i.The applicant was unable to tell the Department when her parents were detained and provided no evidence that her parents have been imprisoned for an extended period of time; and

    j.She returned to China for a holiday in 2010. She was stopped at the airport and questioned. She said she was visiting her grandparents and her belongings were searched, after which she was allowed to enter the country.

29. The delegate found that the applicant’s claims lack credibility. Although the delegate accepted that the applicant may occasionally attend a church in [Suburb 2], on the basis of the applicant’s responses to questions about her Christianity, they found that the applicant is not a practising and committed Christian, and therefore found she would not be of adverse interest to Chinese authorities for reason of her religion. The delegate found that, even if the applicant’s parents were detained because of the practise of their faith, as the applicant is not a devoted and practising Christian, she will not be arrested because of her parents if she were to return to China. The delegate also considered that the applicant was able to exit China, re-enter and exit again using her Chinese passport without raising the concern of Chinese authorities beyond standard questions about the length of stay and location on her return visit. The delegate found that, given the applicant was able to enter and exit China, she is not of adverse interest to Chinese authorities for any reason.

30. The delegate was not satisfied that the applicants are refugees as defined by s.5H(1) of the Act. The delegate also considered that there is no real risk of the applicants facing significant harm, as defined by s.36(2A) of the Act, if they return to China in the foreseeable future.

    Evidence at the hearing regarding preparation and contents of application

31. At the hearing the applicant gave evidence that she remembered making the Protection visa application, which she made with the assistance of her representative. She confirmed that she was aware of the contents of her visa application form and that the contents were read back to her. She confirmed that she did not wish to make any changes to her application form or add to the claims she has made in her application.

    Evidence regarding the applicant’s background and travel

1. The applicant confirmed that she is a citizen of China. She gave details of her last address in China, which are consistent with the address information contained in her Protection visa application. She confirmed that she has not lived at any other addresses in China. She confirmed that her family in China includes her grandparents and sister. Her grandparents continue to live in her [village] and her sister has moved to another village within Fuqing City. She stated that her parents were detained because they joined the underground church, and she has no knowledge of their current whereabouts.

2. Th applicant gave evidence that she met her husband in 2010. He is from a village in [Town], Fuqing City. At the time of the hearing, they had three children, all of whom were born in Australia. The second-named applicant was [Age] years old, [Child 1 was [Age] and [Child 2] was [Age] old. The second-named applicant was enrolled in Year [Number]at [Catholic Primary School] and [Child 1] was in [School year]. She gave evidence that she is not currently working. Her husband works as [an Occupation].

3. The applicant confirmed that she completed high school in China and came to Australia in March 2007, holding a Student visa. She stated that she completed a Diploma of [Subject 1] but could not remember if she also completed [Subjext 2]. She stopped studying in 2011. She stated that she could have applied for permanent residency but didn’t do so because she did not have the money and did not pass the IELTS test. She confirmed that she did not hold a valid visa from 2011, when her Student visa expired, until 2015, when she applied for the Protection visa.

4. She confirmed that she travelled to Australia by plane, using her Chinese passport. She stated that she first came to Australia to study, and she was sent here by her parents for her own safety. She confirmed that she returned to China on one occasion in 2010 or 2011 to visit her grandparents.

   Applicant’s claims for protection

5. The applicant gave evidence that she has claimed protection because both of her parents have been detained in China because they attended an underground Christian church and there is no news about their whereabouts. She claims that she fears she will be persecuted because of this is she returns to China.

6. The applicant gave evidence that her parents were first detained for one month in 2006 before she left China. She stated that they were detained a second time in 2007 and there has been no news of their whereabouts since then. The Tribunal summarised the claims the applicant made in the statement provided with her Protection visa application, and the applicant confirmed that this information is correct and that she is not making any additional claims.

   Evidence regarding Christian practise in China

7. The applicant gave evidence that both of her parents are Christians who attended an underground church. She was raised a Christian and attended church with them since she was a little girl. She claimed that she does not know the name of the church or what denomination it belonged to because she was young when she attended. When asked whether she was aware of any features of the church or its practices, which would distinguish it from other religions, she stated that she does not remember. She stated that when she was a little older, she attended the church in the village with her friends. She stated that this church did not have any distinguishing features. She attended weekly. The services were run by a pastor and involved Bible reading, singing hymns and praying. She stated that various people were involved in the church, including people who organised the choir, the holy meal and Sunday school. The remaining participants were ordinary members of the congregation. She stated that she was baptised in China and then baptised a second time after she came to Australia. When asked if the church was registered or unregistered, she stated that she had no idea. When asked why she claimed that her parents attended an underground church, she stated that if her parents had been attending an official registered church, they would not have been detained. She stated that she was not involved in any other Christian-related activities, and she is not aware of any other Christian groups in the area.

8. The applicant stated that she only read the Bible when she attended church. She was able to show some knowledge of the Psalms, in particular Psalm 1:50. She demonstrated a basic awareness of Jesus’ crucifixion and resurrection and how it related to the washing away of sins. She had awareness of Genesis and Exodus, in particular the story of Moses and the Ten Commandments but she could not remember the circumstances under which Moses received these Commandments. She was unable to give an example of one of the parables told by Jesus, but instead was aware of the story of the loaves and fishes and of some of Jesus’ miracles.

   Evidence of church attendance and Christian activities in Australia

9. The applicant gave evidence that she is a member of [Church] in [Suburb 3]. She stated that she has stopped attending services for the time being as her youngest child is still too young to attend with her. She stated that she started attending this church after the second-named applicant turned [Age] and has attended for roughly six-and-a-half years, though she stopped during the COVID-19 pandemic. She stated that she would otherwise attend every Sunday when her husband was not working. She gave evidence that services involve the gathering of the congregation, the singing of hymns, praising God and preaching by the pastor, whom she was able to correctly name. Children attend the Sunday school in the next room.

10. Prior to joining [Church], she attended a church in [Suburb 1] from 2007 or 2008, though she could not remember the name of the church. She attended for one to two years and was introduced to the church by a friend of hers, though she did not attend very often because she was working and studying at the time.

11. When asked what she must believe to be a Christian, the applicant stated that has always believed in God, and that if you believe and pray, you can achieve eternal life. Praising God can also help you to overcome difficulties. The applicant confirmed that she was baptised a second time in Australia. When asked what baptism means to her, she stated that it means the Holy Spirit is inside her, and it also enables her to have a dialogue with God.

12. The applicant confirmed that the second-named applicant attends a Catholic primary school. When asked why she attends this school and not that of another Christian denomination, she stated that it is the best school in the area where they live, and they can afford it. She stated that the closest Christian school is quite far from where they live, has only [School years] and the fees are expensive. She and her husband also had difficulty supplying the financial information required to be accepted by Christian schools. She stated that she wants her children to have a Christian education, and if there were better and affordable options for Christian schools, her children would attend a Christian school.

13. The applicant gave evidence that she wants her children to have the right to believe in their religion. She stated that she is afraid of what will happen if she returns to China with her children, and that she fears she would be destined to the same outcome as her parents.

    Evidence of detention of the applicant’s parents

14. When asked about her parents’ first detention, the applicant stated that she asked them about it but they would not tell her why they were detained. When asked why she believes they were detained because of their connection to an underground church, she stated it was because this is the only thing they did which could have brought them to the attention of the authorities, and she does not have any other explanation for why they were arrested. She did not know if anyone else was arrested with them on this occasion or know why they were released after one month. The applicant confirmed that she has no supporting evidence of this detention. She stated that while her parents were being detained, she did not know what was happening. They did not tell her about any of their experiences in detention after they returned home.

15. The applicant gave evidence that her parents were detained a second time after she departed for Australia for the first time. She was told by her grandparents that the police went to her parents’ home and arrested them. She has no supporting evidence for this and knows nothing else about their whereabouts or what happened to them. She has not heard from her parents since then. She stated that her grandparents and sister were never detained because they are not Christians.

16. The Tribunal put to the applicant that 16 years have passed since she claims her parents were taken away, and questioned whether anyone had made enquiries about them. She stated that her grandparents went to the police station and visited the village committee, but no-one could tell them any news regarding what happened to her parents. When asked what happened to the church they attended, she stated that it was closed down afterwards. She stated that most people in the village are Buddhists, and Christianity is rare.

    Fears of returning to China

17. The applicant confirmed that she has not experienced any past persecution in China for any reason. She stated that she fears returning to China because she attended church with her parents when she was young. She stated that people in the area know her, and she is worried that if she returns to China, she will suffer the same fate as her parents.

18. When questioned about her sister continuing to reside in China, the applicant stated that when her parents were arrested, her sister was living with their aunt and had left the village. When questioned whether there are any reasons why she could not attend a registered church on return to China, the applicant stated that she has no idea about registered or official churches in China, and that since she was a child, she attended the only church she knew of in her village. She stated that she only came to know the issue of registered or official churches once she came to Australia.

19. When asked if she looked for her parents’ whereabouts when she returned to China in 2010, the applicant stated that she checked with local authorities, including the police station and the village committee, but all of them told her that they could not find them. She stated that she was still quite young at the time and was afraid.

20. When questioned about any action she would take to find her parents if she returns to China, the applicant stated that the case is not closed, and she has thought about the options she has for appealing to a more superior level of government, such as the provincial level, to locate her parents’ files. She stated that her grandparents are still working hard to find her parents. The Tribunal put to the applicant whether her grandparents’ have come to any harm as a result of their attempts to find her parents, to which she answered no. She stated that they keep visiting the local police station and village committee. They are too old and uneducated to approach the provincial government. When asked what she fears will happen if she tries to escalate enquiries to the provincial level, she stated that she may be arrested. She stated that if she had looked for answers at more senior levels, her parents’ files may have been exposed.

21. The Tribunal put to the applicant that she returned to China in 2010, three years after she claims her parents went missing, which may indicate she did not fear returning to China. She stated that at the time, her Student visa was still valid, so her return to China would not have raised any issues with the authorities, and the main reason why she returned was because her grandfather was sick. She stated that she stayed in China for only a short period of time. She gave evidence that she was questioned for about one hour when she arrived in China, after which she was released. When asked what she was told were the reasons for being questioned, she responded that the contents of her baggage were examined in detail. She has no idea why they were examined. She confirmed that she experienced no incidents when she departed China but noted that she was still young at the time, did not stay long and did not take part in any religious activities.

22. The Tribunal questioned the applicant in detail regarding a number of potential concerns, including the limited of knowledge of Christianity and the Bible which she demonstrated at the Departmental interview, whether she was baptised a second time in Australia to strengthen her claims to protection, and the significant delay in her claiming protection. The applicant’s responses to these concerns, where relevant, are set out in my analysis of the findings below.

    FINDINGS AND REASONS

23. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. The Tribunal is cognizant of the view of Beaumont J in Randhawa v MILEA (1994) 124 ALR 265 at para 21, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by suppliants’. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

24. The Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

25. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

26. The applicant claims that her parents were arrested in 2006 due to their attendance at an underground church, and they were detained for one month before being released. She does not have any other details about the reasons for their detention or why they were released. She claims that they arranged for her to study in Australia after this because they had concerns for her safety. She claims that they were arrested sometime in 2007, after her arrival in Australia. She claims that she and her grandparents have made enquiries of local authorities, but despite their efforts, no-one knows what happened to them, and she has not heard from them since.

27. I have doubts regarding the applicant’s claims about the detention and disappearance of her parents in 2007. The applicant has presented no evidence in support of these claims, although she has claimed in response to this concern that she does not know what evidence she can provide in support of their disappearance. However, the applicant has not provided any evidence to corroborate the disappearance of her parents approximately 16 years ago, such as witness evidence or medical evidence as to the impact that such an event had on her. The applicant claimed in her statement accompanying the visa application that her parents were ‘ordinary God followers’ and were detained for gathering with other churchgoers and studying the Bible. She also claimed that after she left China, she lost contact with her parents and sister and does not know what has happened to them. She did not provide the dates when her parents were detained. However, I also note that the applicant’s visa application lists the names of her parents and sister at Question 43. At Question 45, in response to the question ‘Are you in contact with relatives outside of Australia?’, the applicant ticked the ‘Yes’ box and stated ‘I rang to my parents about once a week. My parents are living in Fujian Province, China now.’ At Question 71 she indicates that she returned to China for about 18 days in September 2010 and states that the purpose of her visit was ‘To visit my parents’. This information suggests that in June 2015, when the applicant made her visa application, she was aware of the whereabouts of her parents and was in contact with them, and that she was aware of their whereabouts since at least September 2010.

28. The delegate’s reasons for decision also record that the applicant did not know when her parents were arrested. At the hearing, the applicant claimed they were arrested for the second time in 2007, after she arrived in Australia, and that she has not heard from them since. The applicant was unable to tell the Tribunal why her parents would have been detained in 2007 for reasons of their religion. She gave no evidence of them having any leadership roles within their church and could not tell the Tribunal what denomination they belonged to, nor did she give any other specific details as to why they would be of interest to Chinese authorities on account of their religion.

29. The most recent DFAT report for China[1] provides only very limited support for the applicant’s claims regarding the detention of her parents and their disappearance approximately 16 years ago. The report notes that Catholicism and Protestantism are recognised as two of the five official religions in China.[2] Professor Fenggang Yang of Pursue University describes a situation where religious groups in China operate in ‘red’, ‘grey’ or ‘black’ markets, with red market groups being the officially sanctioned churches such as ‘patriotic associations’.[3] The grey market churches include unofficial but tolerated religious gatherings. Black market churches include underground movements and those that are considered cults or xie jiao. Some home congregations which were originally treated as though they were in the black market have moved towards the grey market with increased tolerance over decades, however this trend is being reversed by the recent attempts to ‘sinicise’ religions.[4] DFAT advises that overall, an individual’s ability to practise their religion depends on factors such as whether they worship in a registered or unregistered institution, whether they practise openly or in private, and whether their religious expression or the religion itself is perceived by the Chinese Communist Party (CCP) as being closely tied to other ethnic, political or security issues.[5]

    [1] DFAT Country Information Report, People’s Republic of China, 22 December 2021.

    [2] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.22.

    [3] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.25.

    [4] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.25.

    [5] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.27.

1. DFAT reports that Christianity is growing in China, with official government reports of 38 million Christians, and with other reports of there being 70 million Christians, as well as higher estimates.[6] It advises that many ‘grey-market’ churches have operated relatively openly for many years, and that most Protestants worship in unofficial ‘house’ or ‘underground’ churches.[7] DFAT advises that the situation for Protestants differs from place to place and community to community, with some communities largely unaffected by increased government oversight, and where the usual worship activities and practises have continued largely without interference.[8] It reports that smaller Protestant churches which are not linked to a central hierarchy or authority are harder to control and are also less likely to be seen as a threat to the state, and thus less likely to be targeted.[9] DFAT overall assesses that Protestants face a moderate risk of official discrimination and are unable to practise their faith freely.[10] Members, and particularly leaders, of large underground churches are most susceptible to such discrimination, with people whose faith is linked to politically sensitive subjects facing a higher risk.[11]

   [6] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.28.

   [7] DFAT Country Information Report, People’s Republic of China, 22 December 2021, paras 3.30 and 3.33.

   [8] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.34.

   [9] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.34.

   [10] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.35.

   [11] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.35.

2. In assessing whether the applicant’s claims regarding the disappearance of her parents is supported by the country information, I note that the DFAT report is focused on the current situation in China, rather than on the situation in 2007. A wide range of media sources indicate that Christians, including some ordinary worshippers, have been detained as a result of their religious practices. China Aid reports that provincial and local government authorities have arbitrarily detained Chinese Christian leaders and believers from all over China, with prison authorities denying many prisoners contact with their families or visits from lawyers.[12]

   [12] ‘Report documents rampant Christian persecution in China’, Union of Catholic Asian News, 16 February 2023, available at >

   I also note earlier reports of Christian laypersons of various denominations being detained on the basis of their worship activities. Amnesty International reports the detention of members of the New Testament Church in Fujian, including one woman who by 1996 had been detained four times and served three prison terms totalling over 10 years for her peaceful religious activities, with her remaining in incommunicado detention at the time of publication of the report.[13] Similar reports of arrests and detention of laypersons identified as members of the Shouters, the Holistic group and Disciple group in Henan province are also reported.[14] Freedom House reports on the periodic crackdowns on unregistered churches, with clampdowns often triggered by events with international links, such as the lead-up to the 2008 Beijing Olympics, with campaigns typically featuring raids on unregistered Bible study meetings or religious ceremonies, and the detention of hundreds of religious leaders and lay believers.[15] While most detainees have been released after short stints of administrative detention, each year several dozen Christian believers would be sentences to ‘re-education through labour’ camps or prisons.[16] The 2018 Report of the US Embassy & Consulates in China regarding religious freedom, reports the continued deaths in custody and torture of adherents of both registered and unregistered religious groups in China because of their religious beliefs and practices, including certain Christian groups.[17] For example, the Church of Almighty God reported that authorities had arrested over 11,000 of its members in 2018, with 2,392 remaining in custody, and with over 300 members of the Early Rain Covenant Church detained following church raids in Sichuan Province.[18]

   [13] Women in China: Detained, Victimized but Mobilized, Amnesty International, July 1996, available at Ibid.

   [15] Christianity: Religious Freedom in China, 2017, Freedom House, available at: Ibid.

   [17] 2018 Report on International Religious Freedom: China, U.S. Mission China, 21 July 2019, available at Ibid.

3. While I have considered this country evidence, and also considered the possibility that the applicant’s parents may have belonged to an underground Christian church which was targeted by authorities, such as those regarded as cults,[19] I find it difficult to make a finding in this regard on the basis of the applicant’s evidence about her parents’ religious practices, which include no specific details to identify the denomination of Christianity her parents adhered to or any practices or beliefs which indicate they would be of interest to Chinese authorities, particularly those in Fujian Province, where religion has historically been practised more freely within state-sanctioned boundaries than in other parts of China.[20] The applicant was also unable to tell the Tribunal why her parents were detained on the basis of their religion, stating that she believes they would have been detained because of their religion as she does not know any other reason for their detention. There is no evidence to suggest that her parents practised a religion or held any beliefs which challenged the interests or authority of the CCP. In the absence of any further supporting evidence or specific details about her parents’ religion which would support such a finding, I find that the applicant’s claims in this regard amount to speculation. I am prepared to accept that the applicant’s parents may have been questioned or detained for short periods on the basis of their attendance at an underground church, but I am unable to accept, on the basis of the evidence before the Tribunal, that the applicant’s parents have disappeared since 2007, and that the applicant has not spoken to her parents or known of their whereabouts since 2007. It follows that I do not accept that upon return to China, the applicant would make enquiries of government authorities as to the whereabouts of her parents or conduct any petitions or protest activities in relation to their disappearance.

   [19] See DFAT Country Information Report, People’s Republic of China, 22 December 2021, paras 3.53 to 3.78.

   [20] DFAT Country Information Report, People’s Republic of China, 3 October 2019, para 3.36.

4. I do however accept on the basis of the applicant’s consistent information in this regard that the applicant was raised a Christian, and that she attended an underground Christian church with her parents. I am also prepared to accept that the applicant’s parents were questioned and detained for short periods because of their Christian beliefs, and that the church she attended in her village was closed by the authorities. While I have concerns that the applicant may be speculating about the claims regarding the disappearance of her parents, it does not automatically follow that I do not accept her other claims. Overall, the applicant answered questions in a matter-of-fact manner and did not give the impression of exaggerating or of constructing her evidence to meet the requirements for the Protection visa or in response to potential concerns put by the Tribunal. Her evidence struck me as being delivered in a candid and sincere manner.

5. I accept that the applicant has attended Christian churches since her arrival in Australia, and that she was baptised in [Church] in August 2018. I also accept that the applicant was baptised as a child in China. I consider the applicant demonstrated a level of knowledge of the Bible and of Christian practise which while not in-depth, was nonetheless consistent with a level of understanding of a genuine practitioner of the Christian faith. While the applicant demonstrated a greater understanding of Christian belief at the hearing than she did at the Departmental interview in 2016, this is to be expected given her attendance at church in Australia and her completion of a Bible studies course in 2018, for which she has provided a certificate of completion. I do not however consider that the applicant’s testimony of her Christian faith at the Departmental interview was such that would negate her claims that she was raised as a Christian in China.

6. I also accept that the applicant’s two oldest children have been baptised in [ Church], and that she intends to also raise her third child as a Christian. I also accept that the second-named applicant, who is about to turn [Age], attends a Catholic school. I accept the applicant’s evidence that she wishes to have her children educated in Christian schools, with the current school the second-named applicant attends being the most practical and affordable option.

7. The most recent DFAT report indicates that most Protestants in China worship in unofficial ‘house’ or ‘underground’ churches.[21] DFAT advises at paragraph 3.33:

   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. 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.

   [21] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.33.

8. DFAT advises that the situation for Protestants differs from place to place and community to community.[22] DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without any interference. Overall, DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely.[23] DFAT assesses that both members and leaders of large underground churches are most susceptible to such discrimination.[24] Further concern is raised by the regulations which prohibit the religious education of those under the age of 18 years.[25] China Aid has reported that CCP officials have arbitrarily detained both Chinese Christian leaders and worshippers in different regions of China, with officials also interrupting worship services, baptisms and online church services to intimidate Christians.[26] For instance, there are reports of police in Shenzhen harassing members of a house church because of fears the congregation was going to baptise new believers,[27] with reports of continued harassment and physical attacks at the congregation’s baptism ceremonies in subsequent years.[28]

   [22] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.34.

   [23] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.35.

   [24] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.35.

   [25] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.26.

   [26] ‘Report documents rampant Christian persecution in China’, Union of Catholic Asian News, 16 February 2023, available at ‘Chinese police harass, surveil house church members over baptism fears’, The Christian Post, 20 September 2021, available at ‘China: Congregants attacked with stones during baptismal service’, Eschatology Today, available at: >

   Having considered the evidence as a whole regarding the practise by the applicant’s family of their Christian faith, including the applicant’s evidence and the supporting documents provided, I accept that the applicant and her family are genuine practitioners of the Christian faith.

9. I also accept that the applicant’s evidence that she intends to continue raising her three children to be Christians. Evidence of this has been provided by way of the baptism certificates of the applicant’s first two children, as well as school reports of the applicant’s oldest child, who is currently a few days from reaching her [Age] birthday. These report cards demonstrate the second-named applicant’s growing awareness of her religious faith as a Christian, including responding to Scripture stories and demonstrating an understanding of some of the teachings of Jesus, including how they relate to her own life, and of the Christian creation story. Her reports indicate that she is attentive during Religious Education lessons and discussions. Given the second-named applicant is at present turning [Age] years old and is currently completing Grade [Number] education, the Tribunal has some doubts that upon return to China she would seek to practise Christianity or attend church independently of any of the actions or wishes of her parents. I find that at present any attendance of the second-named applicant at church or religious services is done in accordance with her parents’ attendance at such services. I also find that her education at a Catholic school is in accordance with the wishes of her parents.

10. I also find that given the evidence which demonstrates a genuine practise of the Christian faith as part of their daily lives, such as attending weekly services and her two oldest children being baptised, I do not consider the applicant’s family’s activities in this regard are being conducted primarily for the purpose of strengthening their claims to protection, and therefore are not to be disregarded pursuant to s.5J(6) of the Act. I also accept the applicant’s motivations for sending the second-named applicant to a Catholic school, where she can gain a Christian education. I also found the applicant’s responses to questions about her Christian faith, including what baptism means to her, and her particular references to the Bible, to be suggestive of someone who holds genuine Christian beliefs.

11. The Tribunal is concerned that upon return to China, the applicant will seek to continue practising her Christian faith. On the applicant’s evidence, the only church which she was aware of in her hometown was an underground Christian church, which she claims was closed by the authorities around 2007. The DFAT report advises that Christians in the applicant’s position may face a moderate risk of official discrimination and are unable to practise their faith freely. I have particular concerns with the applicant’s evidence that the only church in her village was closed by authorities, and also accept that her parents have in the past been questioned, harassed and were briefly detained by the authorities. I have concerns that if the applicant were to seek to attend such a church, or to participate in private prayer activities in such an environment, she may come to the attention of the authorities. I am not satisfied that the applicant could avoid attention by joining an official or registered Protestant church, with recent reports that the Chinese government is not only implementing a policy of eradicating house churches, but also constricting the number of publis worship spaces in Three-Self churches and transforming traditional Protestant worship through the campaign of ‘Sinicization’.[29]

    [29] ‘The Three-Delf Patriotic Movement: Divergent Perspectives and Grassroots Realities’, ChinaSource Quarterly (Autumn 2020), available at: >

    I also have concerns that the applicant would seek to continue educating her children in the Christian faith upon return to China. I have particular concern that the second-named has begun to express a personal interest in the Christian faith, and that the applicant will also seek to have her youngest child baptised into the Christian faith. I am concerned that this may heighten the risk of the applicant coming to the attention of local authorities, given the regulations which prohibit the religious instruction of minors. In this regard, I also note the country evidence I refer to above regarding the disruption of baptism services by CCP officials.

12. I find that should the applicant seek to have her children attend religious services and to receive sacraments such as baptism, this may bring the applicant to the attention of the authorities. While the DFAT report indicates that the situation for Protestants differs from place to place, and that there are communities which have largely been unaffected by increased government oversight, I consider the applicant’s evidence of the closure of the underground church in her hometown, and of the short-term detainment of her parents, indicates that the risk of the applicant coming to the attention of the authorities is more than remote. I accept that the applicant faces a moderate risk of official discrimination and persecution as a result of her religious practise should she return to China, with the risk of such discrimination and persecution being at a higher level because of her stated intention of continuing to raise and educate her children as Christians. Such harm may take the form of questioning, harassment, fines or being detained by authorities, as well as impediments to her religious practice.

13. When these factors are considered cumulatively, I consider that there is a real chance that the applicant will be persecuted if she returns to China. I consider that the applicant’s Christian faith, as well as her stated intention of raising her children in the Christian faith and receiving religious education, are the essential and significant reasons for the persecution.

14. I draw no negative inferences in this particular case from the applicant’s delay in lodging her Protection visa application, given the claims regarding the applicant raising her three children as Christians are central to my findings. I note that the applicant did not make her claim to protection until she was pregnant with her first child and raised particular concern about her pregnancy at the time. For the same reasons, I make no adverse findings regarding the applicant’s brief return to China in 2010.

15. The persecutors in this case include the Government of China, given the applicant’s concerns include her ability to freely practise her religion and to have her children instructed and educated in the Christian faith and to freely attend church services, which would be in defiance of national regulations. State protection is therefore not available to the applicant, given the agents of the persecution are the authorities. I also find that relocation is not a viable option because of the national nature of the discrimination she faces on the basis of her religion.

1. The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in China as a modification would require her to alter her religious beliefs or conceal her true religious beliefs or cease to be involved in the practise of their faith. The Tribunal is satisfied that a decision by the applicant to not attend underground church services or to disallow her children from attending church or a religious education facility, would amount to a serious modification of behaviour.

2. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her religion in China. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds there are substantial grounds for believing that, as a consequence of being returned to China, there is a real chance that the applicant will suffer serious harm.

3. There is no evidence to suggest that the applicant has a right to enter and reside in any country other than China, her country of nationality, and the Tribunal finds that she is not excluded from Australia's protection by the operation of s.36(3) of the Act.

4. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

   Findings regarding the second and third-named applicants

5. In their Protection visa application forms, the second and third-named applicants indicate that they are not making any protection claims of their own. The applicant confirmed at the hearing that neither the second nor third-named applicants have any claims to protection of their own.

6. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second-named applicant is the applicant’s daughter, and the third-named applicant is the applicant’s spouse. The Tribunal is therefore satisfied that they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

7. The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

   (ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Frank Russo
   Member

   
   

   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.

   …