2107555 (Refugee) - [2025] ARTA 1313

2107555 (REFUGEE) [2025] ARTA 1313 (18 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2107555
Tribunal:General Member K. Timbs
Date:18 June 2025

Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration in accordance with the orders that:
(i) the first applicant meets s 36(2)(a) of the Migration Act 1958; and
(ii)that the second applicant satisfies s 36(2)(b)(i) of the Migration Act 1958 on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 June 2025 at 4:34pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – third-generation Christian – grandparents and mother leaders of house church – ordered to cease activities by local officials – detained, beaten, forced to sign document stating he must not attend services, and fined – continuing monitoring of parents – regular attendance and activities in Australia – knowledge consistent with regular bible study – sincere belief and practice accepted – member of family unit wife – country information – laws limiting activities by non-authorised churches – limited information about applicants’ province – modification of behaviour not reasonable and harm applies to all parts of the country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Haji Ibrahim (2000) 204 CLR 1
SZTEQ v MIBP (2015) 229 FCR 497
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). The Tribunal is to continue AAT proceedings not finalised at that time and is taken to have done anything in relation to those proceedings done by the AAT before 14 October 2024.
This is an application for review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant [the first applicant] and [the second applicant] protection visas under s 65 of the Migration Act 1958 (the Act).
[In] October 2019, the applicants arrived in Australia from China.
On 17 November 2019, the first applicant applied for a protection visa for the applicants. The first applicant withdrew the application on 26 February 2020. On 25 May 2020, the first applicant made another application for the visas.
On 9 June 2021, the delegate refused to grant the visa.
On 10 June 2021, the applicant applied for review of that decision by the AAT.
On 6 May 2025, the Tribunal heard the application with the help of an interpreter in the Mandarin and English languages. The first applicant appeared in person to give evidence and present arguments. The second applicant gave evidence by phone.
RELEVANT LAW - CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are in s 36 of the Act.
To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.
The Tribunal must affirm the decision under review if it is not satisfied that the applicants meet one of these criteria.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
The Tribunal considered the Refugee Law Guidelines and the Complementary Protection Guidelines prepared by the Department of Home Affairs and the country information assessment for China prepared by the Department of Foreign Affairs and Trade (DFAT) published on 27 December 2024.
The Tribunal also considered:
·relevant documents provided by the Department including the applicants’ visa application with a written statement outlining the first applicant’s protection claims, and the delegate’s reasons for decision;
·written evidence provided to the Tribunal before hearing;
·oral evidence and made at hearing by the applicants and witnesses;
·relevant additional country information referred to below, including the DFAT assessment for China published on 22 December 2021 (the 2021 DFAT report).
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicants provided Chinese passports to the Department. It examined them and found that they are genuine. On that basis, the Tribunal accepts that the applicants are citizens of China.
The Tribunal has no evidence to suggest the applicants have a right to reside in any other country and the Tribunal is satisfied that China is the receiving country for the purposes of s 36 and s 5J.
Background
The first applicant was born in Tianshui City in Gansu Province in Northern China in [Year]. He is one of [siblings]. His parents and his [siblings] live in China in Gansu.
The first applicant grew up in an outer suburb of Lanzhou city about [Distance] km from the CBD. His parents worked in agriculture. He finished secondary school and has no tertiary qualifications. He worked as [an occupation] for about a year after school and then for [a] company. In 2014, he started his own [company] that operated until he came to Australia in 2019.
The second applicant was born in Gansu in [Year]. She completed secondary school in Gansu. Her immediate family lives in China.
The applicants married in 2012. They have [children] aged [Ages] years living with the first applicant’s parents in China.
The applicants have worked as [occupations] since they came to Australia.
Does the first applicant satisfy the refugee criterion for protection?
The criterion in s 36(2)(a) of the Act 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.
Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution. Under s 5J of the Act,
·a person has a ‘well-founded fear of persecution’ if:
-    the person fears persecution;
-    there is a real chance that the person would be persecuted;
-    the real chance of persecution relates to all areas of the receiving country;
-    the persecution involves serious harm and systematic and discriminatory conduct;
-    the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion; and
·a person does not have a well-founded fear of persecution if:
-     effective protection measures are available to the person; and
-    they could take reasonable steps to modify their behaviour, other than certain types of modification.
Protection claims
At hearing, the first applicant made consistent claims that he will suffer persecution if he returns to China because he is a Christian. He made the same claims in his visa application and in supporting documents provided to the Department and the Tribunal.
Evidence of past harm
At hearing, the first applicant said his grandparents converted to Christianity and started a Protestant church that he called ‘[Church name]’ on the third floor of the family home. He provided a photo of the chapel used by the church and told the Tribunal he attended Sunday services there with his family from 10 am to 12 pm. He said that from 50 to 200 people at different periods. He provided details of the services including that they ended in benediction and included communion only on the first Sunday of each month.
The first applicant said that many people in the small town attended his family’s church or the government registered Three Self Patriotic Movement Church (TSPM Church). He said others did not object to the family’s religious activities in the early years and they and church members had no interactions with authorities. He said local politics changed over time and, in September 2013, local authorities served his mother with a notice that church services were illegal and served her with a notice ordering her to cease religious activities. He said this happened during bible study for about 20 people. He was not present but his mother told him she was obliged to sign the notice which was witnessed by the local party secretary. She told him the officials’ attitude was very firm and that they warned they would come again if religious activities continued. The first applicant provided a copy of the notice to the Tribunal.
The first applicant said church members became afraid and the active membership reduced from about 100 members to about 20. To avoid detection, they rotated the location of services to the homes of church members, rather than having services in the church. He attended regularly and, in September 2017, he and 16 others were arrested by about 10 police at the home of another church member during Sunday service. He said police detained him for three days. He said he fought back and the police treated him badly. In particular, he said he was beaten, handcuffed to a chair and not given food and water. He said he signed a document stating that he must not attend Christian services again and the police warned his punishment would be worse if they caught him again. He said his wife paid 5,000 yen as a fine but did not receive a receipt. He said all but three of the other church members received similar treatment and signed similar documents. He said they all paid fines for which they did not receive a receipt. He said police detained three senior church members, including his mother, for 15 days on the grounds they possessed unlawful Christian publications.
He said he thought the authorities would lose interest in his family after they paid fines. Nevertheless, church members became more careful. He said church organisers let members know about the timing of services and then picked them up rather than telling them the location. The first applicant said authorities have not arrested anyone since 2017 for that reason. However, he said Police constantly monitor his home and enter when his family have visitors to ensure there is no religious activity. He said he was scared by this and very tired of the constant harassment. He said he went to a person ‘who helps people to go abroad’ and he said he would go anywhere with religious freedom. He said they suggested that he and his wife come to Australia and facilitated his travel.
Fear of harm on return
The first applicant said police continue to enter the family home to monitor for religious activity when his parents have visitors and, for example, they attended the home on five occasions at Christmas time in 2024. He said they have warned his mother not to conduct services because strict controls were in place and that she must report to the authorities if he returns. He said that, if he returns, he is afraid he would be subject to constant monitoring and would be subject to similar treatment as when he was arrested in 2017. He said he is likely to come to the attention of authorities because of his family connections to the local church and because his family home is a clear target. He said that, if he lived in another place in China, he could not avoid the attention of authorities because they have very impressive means of targeting people and, in particular, the activities of house church members.
Country information
The DFAT report provides the following relevant information and assessment of the risk to Protestant Christians:
RELIGION
3.49    The Government of China officially recognises five religions: Buddhism, Catholicism, Daoism (Taoism), Islam and Protestantism. Confucianism, a philosophy sometimes viewed as a religion in the West, has long shaped Chinese culture. The US Government estimated in 2021 that 52.2 per cent of China’s population were not affiliated with any religion, 21.9 per cent practiced traditional folk religion, 18.2 per cent were Buddhist, 5.1 per cent were Christian and 1.8 per cent were Muslim. However, local academics told DFAT in 2023 that wide discrepancies existed in the number of reported religious believers and religiosity in China in general, due to a lack of reliable and accurate data, as well as fear of self-identifying as part of a group that could be singled out.
3.50 Article 36 of China’s Constitution states that citizens enjoy 'freedom of religious belief' and 'no State organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion'. The government is officially obliged to protect ‘normal religious activities', while ensuring that individuals do not ‘make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state'. The Constitution explicitly states that 'religious bodies and religious affairs are not subject to any foreign domination'. Human Rights Watch has stated that the ambiguous formulation of ‘foreign domination’ left ill-defined what was and what was not permissible in relation to religion in China.
3.51    President Xi launched a campaign in 2016 to tighten CCP control over religious communities by ‘integrat[ing] religious belief with Chinese culture’. Under this 2016 campaign, the CCP tasked the UFWD with the ‘Sinicisation of religions’ to ensure ‘socialist core values’ played a leading role. In practice, according to the 2023 US Department of State Report on International Religious Freedom in China, the State Administration for Religious Affairs (SARA) was responsible for ensuring all clergy register with the government and avoided all political activity, except for demonstrating support for the CCP. The 2023 US Department of State Report on International Religious Freedom in China further stated that clerical staff in 2021 were officially required to ‘love the motherland’ and ‘support the socialist system’. Clergy may have been directed by SARA to change elements of worship, such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. Finances of religious groups were also strictly regulated and monitored by the state.
3.52    The Revised Regulations on Religious Affairs (2018) were introduced to ensure national unity and protect against ‘dangerous behaviours’. The Revised Regulations on Religious Affairs (2018) specified that citizens were still entitled to the right of freedom of religious belief, however Article 3 was amended to state that the management of religious affairs should adhere to the principles of protecting legitimate religious activities, curbing, and preventing illegal and extreme practices, resisting infiltration and fighting crime. Another new article, Article 4, prohibited individuals and organisations from creating contradictions and conflict between different religions, within a single religion, or between religious and non-religious citizens; from advocating, supporting, or funding religious extremism; and from using religion to undermine ethnic unity, divide the nation, or carry out terrorist activities. In-country sources told DFAT in 2023 that Revised Regulations on Religious Affairs (2018) explicitly prioritised national security considerations, aimed at countering ‘harmful’ foreign influences on China’s officially recognised religions, over individuals’ religious freedoms.
3.53    The Measures for the Administration of Internet Religious Information Services (2022) came into effect on 1 March 2022, banning the use of the internet to promote extremism, ‘religious fanaticism’ or messages that were not consistent with the CCP’s wishes. A permit was now required to proselytise online. In-country sources told DFAT in 2023 that even registered churches were forced to cease streaming their popular online services after these measures came into effect.
3.54    SARA’s Measures for the Administration of Places of Religious Activity (2023) came into force on 1 September 2023 and govern the establishment and operation of religious venues in China. The Measures for the Administration of Places of Religious Activity (2023) formalised: existing obligations placed on religious venues and their management to teach and promote political orthodoxy (including upholding the CCP’s leadership and Xi Jinping Thought); adherence to the Sinicisation of religion (by enforcing the use of Mandarin at services and ensuring the architecture complies with the classical 'Chinese' style); limits on religious activities to the confines of government-approved venues, and; prevention of foreign forces from 'using religion for infiltration'. According to in-country sources, these changes in 2023 sought to isolate religious venues from each other to reduce the influence of individual leaders, who may have threatened the authority of the CCP. To support these changes, religious management personnel had term limits imposed on their rule and all major decisions must now be made by a committee vote, not an individual leader.
3.55    Regulations prohibiting proselytisation were generally enforced across China in 2023-24, and religious education for those under 18 years was not permitted. For example, international media reported in June 2024 that Heyrinisa Memet was sentenced to 14 years in prison for ‘providing religious instruction to youth’ after she was found to have taught the Quran to teenage children in her neighbourhood at their request. In-country sources told DFAT that between 2020 and 2023 the number of foreign religious workers and foreign NGOs working in areas with a religious focus in China decreased significantly. Formal and informal restrictions were also placed on church officials travelling overseas, often with little explanation, which included the need to obtain official permissions due to concerns over potential susceptibility to foreign influence.
3.56    According to testimony from the 2020 US Commission on International Religious Freedom’s Hearing on Technological Surveillance of Religion in China, religious gatherings in China were subject to close monitoring by authorities. Technical surveillance, including CCTV cameras and audio recording equipment was overtly installed in all registered religious buildings and places of worship to monitor leaders and their congregations. Religious sites and those attending them were monitored using technical, biometric surveillance which leverages artificial intelligence (AI) to identify individuals, meaning that people could be specifically identified among crowds. Smartphone location data, vehicle location data and checkpoint logs could also be combined with facial recognition technology, and video feeds from buses, streets, and drones to identify when individuals in the same religious network met together covertly.
3.57    A religious screening process is carried out on all applicants who wish to apply for membership in the CCP and they can be rejected if they are found to ‘embrace religious beliefs’. Current members of the CCP who have been found to have participated in or embrace religions were required to ‘rectify’ their beliefs, according to the Global Times. Membership in the CCP was widely considered a prerequisite for career success in government-related fields. According to the 2023 US Department of State Report on International Religious Freedom, enforcement of these rules on Party membership was inconsistent.
3.58    Professor Fenggang Yang of Purdue University described religious groups in China in 2019 as operating in a ‘red’, ‘grey’ or ‘black’ market. The ‘red market’ groups were the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represented the five recognised religions. ‘Grey markets’ included unofficial but tolerated (to a degree) religious gatherings. ‘Black markets’ included underground movements and xie jiao. However, according to in-country sources in 2023, space for religious freedom had shrunk considerably since 2019. Following the lifting of COVID-19 restrictions in 2023, in-country sources reported that there was even less scope for autonomy for all religious activities in China. More vigorous efforts to enforce the Sinicisation of religions had reversed any trend of tolerance towards ‘grey market’ unofficial religious gatherings.
3.59    Private forums operating outside of officially sanctioned religious organisations (including so-called ‘house’, ‘family’ and ‘underground’ churches) have come under heavy pressure to align their activities with those of the CCP. In-country sources told DFAT in 2023 that unregistered religious organisations had begun to pragmatically include pro-CCP messaging in their sermons to come into line with new regulations and ensure their ongoing survival, and noted that those who failed to cooperate with authorities had been closed down.
3.60    Increased state efforts to exert control over religious movements occurring under President Xi are just one facet of a broader CCP-led campaign to assert more control over society, ensuring that citizens’ first loyalty is to China, not to a religious community, ethnicity or social group. Religions with a cultural centre outside China, such as Christianity and Islam, are viewed by the CCP with additional suspicion due to concerns that their ‘foreign influence’ could threaten the Party’s interests. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that the Government of China considers not to have influences from ‘foreign religions’, and are not associated with other foreign influences, were unlikely to experience significant government-related restrictions.
3.61    Overall, an individual’s ability to practise religion is dependent on whether they worship in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. In-country sources told DFAT in 2023 that there was generally more religious freedom in Southern China, with less onerous restrictions placed on religions operating in the provinces of Guangdong and Fujian. However, religious leaders of both registered and unregistered religious institutions were subject to greater scrutiny from authorities than ordinary worshipers.
3.62    In a 2022 report, akin to other countries in East Asia, the Pew Research Centre ranked social hostility to people of different religions as ‘low’ in mainland China, and much lower than in Australia. While less common, isolated cases of religious discrimination have occurred. Some segments of Chinese society possess either founded or unfounded fears that establishing too close connections with religious adherents could attract adverse attention from the government.
3.63    …
Christians
3.64    Official Government of China statistics show that there are 38 million Christians who worship at officially registered churches, however, due to this narrow definition, estimates of the Christian population in China vary significantly in practice. By contrast, the 2023 US Department of State International Religious Freedom Report estimated that 5.1 per cent of the population of China was Christian (about 72 million people), although higher estimates (more than 100 million) also exist.
3.65    Official regulation of Christianity in China is in accordance with broader policies towards the Sinicisation of religions. In-country sources told DFAT in 2023 that official church services were required to begin with patriotic messages to ‘love the Party, love the homeland and love socialism’. While CCP approved Bibles were available for personal use, all content contradicting socialism was censored. Those who sold or distributed non-CCP approved bibles without authorisation faced arrest and prolonged detention. For example, Bitter Winter reported in 2023 that Chang Hao, a preacher in a small rural church in Zhenxiong County, Yunnan, had been arrested for possessing unauthorised Bibles and distributing COVID-prevention masks inscribed with Bible verses. Online Bible references were also censored and often, sacred images and representations, such as those of the Virgin Mary, had been replaced with portraits of Xi Jinping. Censorship of religious materials was prolific in 2023 and enforced by several government entities, including the SARA and the Cyberspace Administration.
3.66    DFAT assesses Christians face a moderate risk of official discrimination when attempting to practice their faith, in accordance with established religious doctrine, when it conflicts with CCP approved practice. DFAT assesses Christians face a low risk of official discrimination on the basis of their religion when accessing public and social services, housing, government employment and education. DFAT assesses official discrimination would likely relate to an individual’s activism or failure to comply with CCP directives, rather than anything specifically related to their Christian faith. As at the time of publication in 2024, DFAT was not aware of violence perpetrated against Christians because of their religion.
…
Protestants
3.82    The Three-Self Patriotic Movement (TSPM), established in 1949, is the official governing body for Protestant churches in China. ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation, taken from 19th century missionary philosophies, and does not refer to the Trinity. The Three-Self Church, officially registered and recognised under the TSPM, comes under the authority of the CCP’s UFWD and is the single state-sanctioned Protestant church in mainland China.
3.83    Historically, many Protestants in China worshiped in unregistered private forums operating outside of TSPM control (mainly in unofficial ‘house’ churches). COVID-19 restrictions led many house churches to move their services online, which increased the size of their congregations. In 2021, the Government of China significantly increased its ongoing efforts to force unregistered churches to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of pastors to rules set out by the TSPM.
3.84    Churches that refuse to align with the TSPM have been threatened with official closure or already closed, and have had their leaders (pastors and congregation elders) arrested and detained for subverting the law. In-country sources told DFAT that between 2021 and 2023, authorities had placed pressure on unregistered churches to comply with official CCP regulations by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut them down. Members of unregistered churches were unlikely to face arrest or detention in 2023, and in most instances were warned verbally by authorities to only worship at registered churches.
3.85    While the degree to which Protestants can practice their religion freely without discrimination differed from place to place and community to community in 2023, freedom to practice their religion tended to be more favourable in Southern China, especially Guangdong and Fujian. In-country sources told DFAT in 2023 that Protestants did not face much government interference in their freedom to practice their religion, as compared with other Christian denominations. Due to the nature of Protestant Christianity in China, with its churches not linked to a central hierarchy or authority besides the TSPM, Protestants were less likely to be seen as a threat to the state and targeted. International academics reported that Protestants had for years been reducing ‘outside influence’ on their churches to achieve more self-sufficiency, with many pastors finding and training more domestic staff so Chinese congregants could take on positions once held by foreign missionaries. In 2023, registered Protestant churches appeared to be well funded, and operated religious shops and publishing houses, as long as they conformed with CCP directives.
3.86    DFAT assesses Protestant Christians face a low risk of official discrimination on the basis of their religion alone, however leaders of non-TPSM affiliated, unregistered Protestant churches (pastors and congregation elders) face a moderate risk of official discrimination on the basis of religion in the form of harassment and possible detention for religious-related offences. It is illegal to proselytise, and those who attempt to, are subject to greater scrutiny by authorities and face arrest.
Is there a real chance of serious harm?

The first applicant told the Tribunal that he attended a Chinese Anglican church when he first came to Australia. He said that he attended virtually during the COVID pandemic and watched videos of the pastors teaching bible studies. He said he has attended another protestant Chinese Church since Christmas 2021 and has never missed a Sunday service. He also attends prayer sessions on Thursday evenings and scripture readings on Saturday evenings. The second applicant and both witnesses, [Mr A] and [Ms B], gave the Tribunal the same details about the first applicant’s church attendance. It finds he is a particularly active member of the congregation of that church.
At hearing, the first applicant demonstrated knowledge consistent with regular bible study. For example, he explained the creation story in Genesis and told the Tribunal, not only how many days it took to create the world, but also what parts of the world or creatures were created on each day of the week. He also gave the Tribunal details of the life of Christ and a convincing explanation of his belief about the meaning of the crucifixion, resurrection and ascension of Christ. He told the Tribunal that his Christian belief was a joy to him and a comfort in difficult times. The Tribunal accepts that is the case and finds he is sincere in his belief and commitment to the practice of Christianity.
The Tribunal finds the strength of the first applicant’s belief is consistent with his evidence of being the third generation of a family that founded a small Christian church. It also accepts that his evidence of adverse attention from authorities beginning in 2013 is consistent with country information that ‘Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion’ (the 2021 DFAT report at 3.24). It accepts his family concealed their religious activities from 2013 to avoid further adverse attention. It also accepts that he was detained in 2017 for three days and poorly treated. This is consistent with the country information above that “President Xi launched a campaign in 2016 to tighten CCP control over religious communities by ‘integrat[ing] religious belief with Chinese culture’”.
The country information above notes that the ‘situation for Protestants differs from place to place and community to community’. There is little country information available to the Tribunal about the situation for protestants in Gansu. The population of the province of more than 24,000,000 is religiously and ethnically diverse with significant minority Muslim and Tibetan Buddhist populations. Asia Harvest estimates the number of Protestants attending house churches to be approximately 484,000 which is approximately 2% of the population (Asia Harvest at For that reason, there are few public sources available to the Tribunal about the attitude of authorities to Protestant religious activity in house churches. However, it has one report of authorities acting in a similar manner as stated by the first applicant by threatening significant fines on another house church in Lanzhou. The report states that, rather than attending a TSPM church, the church members hold services in an outdoor venue in a remote mountain valley (Xu Xaolu, Gathering in a Valley, Bitter Winter, 4 August 2019 at bitterwinter.org).
The Tribunal has regard to reports of interference in religious activities of Tibetan Buddhists (Liu Mengyao, Tibetans in Gansu Threatened with Xinjiang-Like Repression, Bitter Winter, 9 April 2023 at bitterwinter.org) and fears that the large Hui Muslim minority, who had previously been allowed to practice their religion in peace, will be subject to similar repression as Uyghurs in the Xinjiang Uyghur Autonomous Region (Hui Muslims and the “Xinjiang Model” of State Suppression of Religion, Congressional Executive Commission on China, 29 March 2021 at cecc.gov). In the Tribunal’s view, this demonstrates active intolerance by authorities to religions other than Buddhism as practised by the Han Chinese majority.
The first applicant told the Tribunal that he and his family did not proselytise and, for example, they did not hand out the publications seized by authorities in 2017. He said they waited for others to come to them and his evidence of church activities in Australia did not include recruiting activities. In that case, the Tribunal infers he would not come to the attention of authorities for that reason. However, it finds his family is well-known to local authorities because his grandfather founded the house church which operated until 2013 in their family home. It infers he would be treated in a similar manner to church elders and that would be regularly monitored and his religious activities would come to the attention of church authorities unless he ceased to practice or concealed his religious beliefs. It finds such attention would result in regular detention and prosecution.
The Tribunal considered whether that harm amounts to serious harm that is systematic and discriminatory. The inquiry is a qualitative assessment of the severity of the harm. Authorities have stated that the term ‘persecution’ requires there to be a certain level of seriousness or intensity (SZTEQ v MIBP (2015) 229 FCR 497 at [99]-[100]). In MIMA v Haji Ibrahim ((2000) 204 CLR 1 at [65]), Justice McHugh stated that the act causing harm needs to be:
so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.
The Tribunal takes into account the evidence that authorities visited his family home on five occasions at Christmas in 2024 and on most occasions when people visit the home. It is satisfied the harm of monitoring, detention and prosecution described above would be ‘so likely to be repeated or maintained’ in the second applicant’s particular circumstances that he ‘cannot be expected to tolerate it’. It accepts that this harm is serious harm resulting from systemic and discriminatory conduct.
Does the harm apply to the whole of the country?
Laws limiting Christian religious activity, other than in authorised churches, apply throughout China. The Tribunal is satisfied the second applicant would be subject to similar harm in any other area of China for that reason. It finds the serious harm applies to the whole of the country.
Can the first applicant modify his behaviour?
The first applicant does not have a well-founded fear of persecution if he could take reasonable steps to modify his behaviour to avoid persecution. However, that does not apply if the modification involves concealing his true religious beliefs or ceasing his religious practice. It follows that it would not be a reasonable step for him to stop attending services or to worship secretly in the same manner as his family members.
The first applicant told the Tribunal he would not worship as a Christian at a TSPM church because they must display nationalist emblems and sing the national anthem and that this is inconsistent with the teachings in the Bible. The Tribunal noted many Christians in China attend these churches and consider these matters are not inconsistent with Bible teaching but are additional to the Christian teaching. It suggested they put up with those teaching to worship openly and avoid persecution. The first applicant said that the pastors are registered pastors and are instructed to praise the government and ‘they don’t speak in the language of God’. The Tribunal pressed the first applicant that it might be possible to praise the Government and to speak in the language of God and he conceded that they sometimes speak in the language of God. However, he said most of the time they are praising the Communist Party and this is not consistent with his own religious beliefs. The Tribunal accepts teachings in the TPSM Church intended to ‘Sinicise’ Christianity are inconsistent with the first applicant’s Christian beliefs. It finds that attending that church is not a reasonable step to avoid serious harm because it would involve concealing his true religious beliefs.
Other matters
The essential and significant reason for the persecution the second applicant would suffer is his religion. The persecution would be undertaken by state actors and there are no effective protection measures available to him.
Assessment
Having made the findings above, the Tribunal finds that the first applicant has a well-founded fear of persecution. He is therefore a refugee and, as a non-citizen in Australia, he meets the criterion for a protection visa in s 36(2).
CONCLUSIONS
The Tribunal has found that the first applicant satisfies the refugee criterion in s 36(2). The second applicant told the Tribunal she has no protection claims of her own. However, it is satisfied she is a member of the same family unit as the first applicant and she therefore satisfies s 36(2)(b)(i). In that case, the Tribunal will send the application back to the Department for reconsideration in accordance with orders to that effect.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration in accordance with the orders that:
(i) the first applicant meets s 36(2)(a) of the Migration Act 1958; and
(ii)that the second applicant satisfies s 36(2)(b)(i) of the Migration Act 1958 on the basis of membership of the same family unit as the first named applicant.
K Timbs
General Member
Date of hearing:  6 May 2025
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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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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