2106688 (Refugee)

This matter concerned an application for a protection visa by a family unit from China. The primary applicant claimed to fear persecution due to their Christian faith, including attending an underground church and undergoing a second baptism in Australia. The secondary applicants were the primary applicant's spouse and children, some of whom were born after the initial visa refusal. The Federal Circuit Court had previously remitted the matter to the Tribunal for reconsideration.

The core legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for one of the five prescribed reasons under the Migration Act 1958 (Cth), or alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal to China, they faced a real risk of suffering significant harm. The Tribunal was also required to consider the relevance of country information regarding the risks faced by religious practitioners in China and whether any actions taken by the applicants in Australia were primarily for the purpose of strengthening their claim.

The Tribunal considered the evidence presented, including baptism certificates, school reports, and birth certificates. It noted that the applicants had initially indicated they would not attend a hearing but later expressed a desire to do so. The Tribunal applied Ministerial Direction No. 84 and the Refugee Law and Complementary Protection Guidelines. It found that while the primary applicant's evidence regarding their religious practice and the disappearance of their parents was inconsistent and uncorroborated, the country information suggested a moderate risk of official discrimination and an inability to practice religion freely in China, with prohibitions on religious education for those under 18 and limited availability of state protection or relocation.

Ultimately, the Tribunal was not satisfied that the primary applicant met the criteria for being a refugee or facing significant harm. However, it was satisfied that the spouse and children were members of the same family unit as the primary applicant. Consequently, the Tribunal remitted the matter for reconsideration with directions that the primary applicant satisfies section 36(2)(a) of the Migration Act, and the other applicants satisfy section 36(2)(b)(i) on the basis of their family unit membership.