2108997 (Refugee)
[2025] ARTA 1712
•24 July 2025
2108997 (REFUGEE) [2025] ARTA 1712 (24 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2108997
Tribunal:General Member M Brereton
Date:24 July 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 24 July 2025 at 9:08am
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – suspected of being organiser, arrested and tortured – written statement prepared by another person without knowledge of contents, and not relied on – passport and unhindered departure – grandfather, uncle and friend arrested and detained –consistent claims and evidence, appropriate level of knowledge and demonstrated practice – supporting evidence and statements – country information – active harassment, persecution, imprisonment and human rights abuses in all areas of country – effective state protection not available and modification of behaviour not reasonable – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3), (4)(b), (c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the People’s Republic of China (China), applied for the visa on 27 June 2019. The applicant claimed to fear harm because he is a Falun Gong practitioner. The delegate did not accept the applicant’s claim as credible and refused to grant the visa.
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 18 June 2025 and 16 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [Ms C], a support person [Ms J], and a fellow Falun Gong practitioner [Mr D]. The Tribunal attempted to take evidence from the applicant’s ex-wife in China but was unable to establish telephone contact. The Tribunal hearings were conducted with the assistance of interpreters in the Mandarin and English languages.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant’s protection visa application claims that he is a practitioner of Falun Gong. He claims that he was identified by the authorities, suspected of being an organiser, and was arrested and tortured. He claims that some of his friends have been taken to a brainwashing class and if he returns to China, he will be known as a loyal Falun Gong practitioner. He will be arrested because the authorities will want to know why he went overseas and whether he has practised Falun Gong overseas. The applicant provided an uncertified copy of the biodata page of a Chinese passport as proof of identity. He did not provide any further information or documents.
On 31 May 2021, the delegate wrote to the applicant advising that the claims lacked substantiating details and there was no supporting evidence. The delegate requested further information and evidence pursuant to s 56 of the Act. The applicant did not respond to this request. The applicant was not invited to attend an interview.
Summary of the delegate’s decision
The delegate noted that the applicant had been invited to provide further information and evidence but had not done so. The delegate found that the applicant’s claims lack detail and are not supported by any other evidence. The delegate also took into account that the applicant had been able to obtain a passport and depart China, which indicates that he was not of adverse interest to the Chinese authorities at the time he departed. Having regard to the above, the delegate was not satisfied that the applicant is a Falun Gong practitioner. The delegate was not satisfied that the applicant faces a real chance or real risk of relevant harm for this, or for any other reasons, should he return to China.
Evidence before the Tribunal
The Tribunal first listed this matter for hearing on 26 March 2025. On 21 March 2025, the applicant contacted the Tribunal and advised he had changed his contact address and had only just found out about the hearing. He requested a postponement. The Tribunal granted this postponement and relisted the matter for hearing on 23 April 2025.
On 22 April 2025, the applicant contacted the Tribunal and advised that he has requested documents from the Department of Immigration but has not received these yet. He asked for a further postponement which the Tribunal granted. The Tribunal relisted the matter for hearing on 23 May 2025.
On 22 May 2025, the applicant contacted the Tribunal and advised that he has only just received the documents and asked for a further brief postponement. The Tribunal took into account the applicant’s engagement with the process and his explanations for the requested postponement. The Tribunal decided to postpone the hearing for a further brief period.
The hearings
The applicant attended a hearing on 18 June 2025 (the first hearing). At the end of the first hearing the Tribunal advised that it wished to hear further evidence from witnesses. The Tribunal adjourned the hearing and invited the applicant to attend a resumed hearing. The applicant attended the resumed hearing on 16 July 2025 (the second hearing). His evidence and submissions, and the witnesses’ evidence, are considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is the applicant’s fear of harm because of his religion (Falun Gong). For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a citizen of China. He has provided a copy of a Chinese passport as proof of his identity and citizenship. He told the Tribunal that he does not have any right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of China, and that China is the receiving country and country of reference for the purposes of this review.
Religion
The applicant claims to follow Falun Gong. His statement with his application refers to Falun Gong in broad terms only and the applicant did not respond to the delegate’s invitation to provide more information. At the first hearing before the Tribunal, the Tribunal asked the applicant to speak about Falun Gong in more detail. The applicant was able to identify the leader, relevant dates, literature, and describe the basic philosophy of the religion. The Tribunal asked him how he practices his religion, and he referred to and named the Falun Gong exercises. The Tribunal asked if he could demonstrate any of these exercises and the applicant demonstrated all five exercises without prompting or hesitation. The Tribunal asked him about his practice regime, and he said that he practises every day. He has some friends who he meets with for practice and discussion on a semi regular basis. The Tribunal invited him to provide evidence from his fellow practitioners.
At the second hearing the Tribunal received evidence from Mr D. Mr D told the Tribunal that he is a citizen of China who has practised Falun Gong for many years. He originally left China due to persecution as a Falun Gong practitioner and has lived in [Countries 1-3], where he has attended Falun Gong teaching. He first came to Australia in 2019 and joined a Falun Gong group in the Melbourne suburbs, where he met the applicant. He practised with this group until he left Australia to go to [Country 1]. Since his return to Australia, he has reconnected with the applicant, and they practise together once a week or once a fortnight. Sometimes other people join them. He said that he is not a leader or teacher and his relationship with the applicant is that of a fellow practitioner. The Tribunal asked him how he would describe the applicant’s understanding of and commitment to Falun Gong. Mr D said that he believes the applicant is a dedicated and committed practitioner.
At the second hearing the Tribunal also received evidence by telephone from Ms C. Ms C is the applicant’s partner in Australia (she was outside Melbourne at the time of the second hearing). Ms C was forthright in stating that she does not know much about the applicant’s practice of Falun Gong, because she believes that religion is a private matter. She said that she has known the applicant for about four or five years, but they have only become partners in the last couple of years. She said that he does not discuss religion, and she did not know he practised Falun Gong until after they became partners. She said that he practises his religion daily and sometimes meets up with other people. Ms C does not follow Falun Gong and does not attend any of these meetings.
The applicant provided the Tribunal with photographs of himself and a person the Tribunal recognises as Mr D undertaking exercises that are consistent with the Falun Gong exercises. The Tribunal asked when these photographs were taken, and the applicant said that they were all taken this year. He said that he used to have another mobile telephone with older photographs on it, but he lost that, so these are the only photographs he now has. The Tribunal asked if these or any other photographs have ever been uploaded onto his, or any other person’s social media. He stated (emphatically) that it would be dangerous to do so and none of his photographs are available on any social media.
The applicant claims that he has suffered harm in China because of his practise of Falun Gong. His statement with his protection visa application indicates that his parents do not practise Falun Gong, but other members of his family do. At the first hearing he told the Tribunal that he was introduced to Falun Gong through his maternal grandparents. At first it was not banned by the government and the applicant attended gatherings and meetings with his grandparents. The government then declared Falun Gong to be an evil religion and began stopping people from practising. The applicant’s maternal grandfather was arrested and taken away when the applicant was aged about nine. He said that his grandfather died in custody but does not know what the cause of death was. Sometime after this, a maternal uncle was also arrested. That uncle was released but became sick and died soon after. The applicant thinks the uncle may have been given something that made him sick while in custody. Other people in the uncle’s Falun Gong group also died.
The Tribunal asked the applicant why he decided to follow Falun Gong himself. He said that he believes in it because of his family and because it sets out basic principles for a good life. He said that his parents do not follow it, but they have remained supportive of his commitment to it. He said that he began practising regularly after he had finished junior school. He said that he used to help the people who organised the groups. The Tribunal asked him if he was ever arrested, and he said that he was not because he was always able to escape. The Tribunal put to him that his written statement refers to being arrested, detained in custody and mistreated because of his belief. He said that he was arrested once because he was fighting with people but not because of Falun Gong. The Tribunal asked why his statement said that he was arrested because of Falun Gong. He said that someone had written the statement for him. He told this person everything but does not know whether they wrote it down correctly.
The Tribunal asked the applicant about when he left China. He said that he obtained his passport and was able to leave without any adverse interest by the authorities. He said that he was not of interest to the authorities when he left but they became interested in him after one of his friends was arrested. This is referred to in the applicant’s statement where he identifies a person named as [DZW] as being a friend and fellow practitioner in China. At the first hearing the Tribunal asked the applicant if he knew anyone by the name DZW, and he said that he did not. However, at the second hearing the applicant made an unprompted submission that there was a misunderstanding at the first hearing that he needed to correct. He said that the interpreter at the first hearing had referred to DZW but had pronounced it differently. He said that he had a friend with a similar name but a different pronunciation. The interpreter at the second hearing told the Tribunal that there can be differences in pronunciation and spelt out the name that the applicant was referring to. The Tribunal is satisfied that the applicant was referring to the person named as DZW in his statement. The applicant told the Tribunal that he and DZW practised Falun Gong in China and after the applicant had left, DZW was arrested. DZW was able to escape China and come to Australia, where he told the applicant that the authorities know about the applicant and want to speak with him. The applicant has now lost contact with DZW.
The Tribunal had the benefit of an in person hearing with the applicant and has formed the view that he has been a generally forthright and engaged witness. The Tribunal does not accept the written statement in so far as it refers to the applicant being himself arrested, detained, and mistreated because of Falun Gong; however, the Tribunal gives weight to the applicant’s evidence that he did not write the statement and was not aware of its contents. The Tribunal does not draw any adverse inferences from the discrepancy, nor does it cast doubt on other aspects of the applicant’s claims.
The applicant has been consistent in the remainder of his claims and was able to answer questions and provide further detail without hesitation or confusion. The Tribunal accepts that the applicant has family members, including a maternal grandfather and maternal uncle, who practised Falun Gong. The Tribunal accepts that the applicant developed an interest in Falun Gong when he was in China and commenced to practise it there. The Tribunal accepts that he has continued to practise Falun Gong since arriving in Australia and is satisfied that he has not engaged in conduct here with the aim of strengthening his claims for protection. The Tribunal accepts that the applicant is a practitioner of Falun Gong.
The applicant claims that his maternal grandfather and maternal uncle were each arrested and detained because of their practise of Falun Gong. He claims that his grandfather died while in custody and his uncle died soon after release.
Country Information
The Australian Department of Foreign Affairs and Trade (DFAT) reports the following:
Falun Gong (Falun Dafa) is based on the practice of qigong, a generic term for a family of meditative breathing and stretching exercises with a long history in China. Qigong experienced a resurgence in popularity in the 1980s and 1990s, and Li Hongzhi (commonly referred to by followers as ‘Master Li’) established Falun Gong in 1992 at the same time as similar movements. Falun Gong is the most well-known qigong group outside China, however others exist and many of them are banned or monitored in China. No official data exists on the number of practitioners because the religion was banned in China in 1999, remains illegal, and operates in secret to avoid detection by authorities. Unofficial estimates of Falun Gong practitioners in China vary up to tens of millions.
Core to Falun Gong beliefs is the reading and re-reading of the Zhuan Falun, their sacred text comprising a series of lectures made by Li Hongzhi. International academics told DFAT in 2021 that a thorough knowledge and constant re-reading of the Zhuan Falun was central to Falun Gong beliefs; one could not be Falun Gong without that practice. By performing exercises, following the moral teachings of the religion and reading and re-reading the sacred text Zhuan Falun, believers of Falun Gong hoped to ascend to a state of perfection or ‘cultivation’.
Practitioners may not see Falun Gong as a religion, instead viewing it as a method for ‘cultivation’ or as a science. Unlike other qigong practices, Falun Gong has moral teachings and supernatural aspects. International academics told DFAT in 2021 that these teachings and aspects did not form a core part of Falun Gong belief or practice, at least for most members. The Government of China and some former members reported in 2021 that Falun Gong encouraged isolation from families or the refusal of medical treatment. Falun Gong denied these reports.
Authorities actively search for and prosecute Falun Gong practitioners. Adherents have been imprisoned for between three and seven years under Article 300 of China’s Criminal Code (2020). The Falun Dafa Infocenter reported in 2023 there were 1,381 cases of official harassment and 1,752 arrests between January and June 2023. According to Minghui, a Falun Gong-affiliated publication, 3,457 Falun Gong practitioners were arrested in 2023. DFAT was unable to verify these claims in 2023, however considered them plausible.
Due to fear of arrest, members of Falun Gong do not openly proselytise in China and there is no initiation ceremony. Unlike some other new religious movements, there are no ‘gradations’ of knowledge where one has to be admitted or inducted into knowledge after perhaps being a believer for a certain time or paying a fee. While Falun Gong practitioners were generally able to practise privately in their homes in China in 2022, they often faced difficulty finding landlords who would rent them apartments.
Falun Gong, unlike some other xie jiao, is generally not secretive about its beliefs and practices outside of China. Most Falun Gong beliefs are published on the organisation’s websites. Repression of the religion has become a key theme of its teaching and practice abroad. Practitioners are often involved in anti-Chinese government activism, including in Australia.
Lawyers defending Falun Gong practitioners in China risk their careers, among other things, because challenging the government’s designation of a cult organisation has been deemed in breach of the Measures on the Administration of Lawyers’ Practice (2016) and could lead to their licence to practice being invalidated. According to ongoing reporting by Dui Hua, China’s Ministry of Justice, Domestic Security Bureau of the Public Security Ministry, and subordinate departments, pressure human rights lawyers representing Falun Gong practitioners to resign from these cases due to the ‘negative impact on society’ (see also Human Rights Defenders).
Many publicly available sources report imprisoned Falun Gong practitioners and their lawyers have been subjected to psychiatric experimentation and organ harvesting. On 12 June 2021, 12 UN experts stated that they were 'extremely alarmed by reports of alleged ‘organ harvesting’ targeting minorities, including Falun Gong practitioners’, Uyghurs, Tibetans, Muslims and Christians, in detention in China’. These UN experts said they had received credible information that detainees from ethnic, linguistic or religious minorities may have been forcibly subjected to blood tests and organ examinations such as ultrasound and x-rays, without their informed consent; while other prisoners were not required to undergo such examinations. UN experts stated that the results of the examinations were reportedly registered in a database of living organ sources that facilitated organ allocation. The China Tribunal, initiated by the International Coalition to End Transplant Abuse in China, investigated organ harvesting in China. The China Tribunal concluded in 2019 that ‘forced organ harvesting has been committed for years throughout China on a significant scale and that Falun Gong DFAT Country of Information Report People’s Republic of China – 2024 39 practitioners have been one – and probably the main – source of organ supply’. DFAT was unable to verify these claims at the time of publication in 2024.
DFAT assesses Falun Gong practitioners, their lawyers and human rights advocates face a high risk of official discrimination. Falun Gong is banned in China and DFAT assess reports of widespread arrests of its members are credible. It is illegal to proselytise and those who attempt to, as well as leaders of the movement, are subject to greater scrutiny by authorities. DFAT is unable to verify whether a former member or a person imprisoned for membership would be placed on an exit control list, however considers it plausible. DFAT assesses Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination due to the effects of sustained public campaign against them.[1]
[1] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country information Report China’, 27 December 2024, at [3.109]-[3.117].
As well as the DFAT information noted above, the Tribunal has considered the 2025 report of the United States Commission on International Religious Freedom (USCIRF). This notes that the Chinese government has continued to target Falun Gong practitioners and other unrecognized religious groups as illegal “cults.” Falun Gong sources document that thousands of adherents faced arrest, imprisonment, and mistreatment, including deaths resulting from abuse in custody. USCIRF also reports that the Chinese government has used overseas citizens, including US citizens, to identify and report on Falun Gong practitioners.[2]
[2] United States Commission on International Religious Freedom (USCIRF), ‘USCIRF Annual Report 2025’, March 2025, at pp 16, 17.
Earlier US reporting includes the observation that:
[In 2023], 188 Falun Gong adherents died during the year as a result of persecution. … [D]uring the year authorities imprisoned 755 Falun Gong practitioners, arrested 3,457, and harassed 2,749 others, with harassment and arrests increasing around politically sensitive events. In March, the New York City Bar Association published a report that found there was “ample evidence China continues to engage in forced organ harvesting of prisoners of conscience.” NGOs reported that the government continued to pressure unregistered religious groups to join state-sanctioned patriotic religious associations or disband, subjecting their leaders to arrests and harassment.[3]
[3] United States Department of State (USDOS), ‘2023 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)’, at 547499_CHINA-2023-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf
The Chinese authorities are reported to have conducted physical and digital surveillance overseas on Falun Gong adherents. Practitioners reported societal discrimination in employment, housing, and business opportunities. The Chinese Communist Party (CCP) is said to maintain an extra-legal, party-run security apparatus to eliminate the Falun Gong religious group and other banned organizations. This reporting also notes that authorities imprisoned 755 Falun Gong practitioners during 2023 (compared with 446 in 2022), arrested 3,457 individuals in 30 provinces and municipalities, and harassed 2,749 others through raids, orders to attend mandatory indoctrination classes, loss of their jobs, and other discrimination. Human rights advocates expressed concern about ongoing detention and in some cases reports of torture of Falun Gong practitioners, often for alleged activities related to Falun Gong practice.[4]
[4] ibid
The online magazine “Bitter Winter” (which describes itself as a “magazine on religious liberty and human rights”) [5] has reported increased anti-religious repression in China.[6] It also reported the deaths in custody of a number of Falun Gong practitioners in May and June 2025. Similar reporting is provided by the Falun Gong online publishing site Minghui.[7]
[5]
[6] 25 February 2025.
[7] Falun Dafa - Minghui.org
The Diplomat[8] published an article written by the Executive Director and Deputy Director of the Falun Dafa Information Centre. This article states that in recent years, the Chinese government has redoubled its efforts to monitor, detain, imprison, silence, and malign Falun Gong believers around the world. It suggests that internally the campaign to eradicate Falun Gong is viewed as a “central component to the CCP’s efforts to control the population, maintain political power, and retain ideological supremacy, both within China and among the Chinese diaspora.” It states that between 2019 and 2023, directives, work reports, and development plans issued by local governments in at least 12 provinces and cities across China linked crackdowns on residents who practice Falun Gong with safeguarding “national security,” “political security,” “national political security,” and/or “state security.” It reports that in early 2023, “the regime commenced a new nationwide campaign to spread disinformation that demonizes the practice and encourages – even forces – Chinese citizens to join in denouncing those who practice Falun Gong. At the centre of the effort is an interactive petition with animated characters housed on the ubiquitous WeChat app owned by Chinese tech giant Tencent.”[9]
[8] The Diplomat describes itself as ‘the premier international current-affairs magazine for the Asia-Pacific region., Levi Browde and Larry Liu, ‘25 Years On, Falun Gong Still Firmly in Beijing’s Repressive Sights’, The Diplomat, 20 July 2024, at 25 Years On, Falun Gong Still Firmly in Beijing’s Repressive Sights – The Diplomat.
The Tribunal acknowledges that some media and Falun Gong-linked reporting may include less objective content or analysis than other governmental sites, but in general the information provided is consistent with the views of DFAT and the United States organisations.
The country information cited above leads the Tribunal to find that those identified as Falun Gong practitioners face an objectively real chance of discrimination, arrest, and mistreatment at the hands of the Chinese government, that is current, ongoing, and shows no signs of diminishing.
The Tribunal discussed country information with the applicant and asked why he thought he will come to the attention of the authorities. He explained that his grandfather and uncle were arrested, and he will be known because of them. He also said that since DZW came to Australia, the authorities have been asking about the applicant. He said that they have called his ex-wife (who remains in China with his children) to try and locate him. The Tribunal has noted above that it was unable to establish a connection with the ex-wife to take evidence and is satisfied that this was not due to any action or inaction on the part of the applicant.
The Tribunal accepts that the applicant’s grandfather and uncle were arrested and detained as he has claimed. The Tribunal accepts this as evidence that the applicant’s family is associated with Falun Gong in the eyes of the Chinese authorities. The Tribunal accepts that the applicant has an honest, albeit subjective, belief that the Chinese authorities will identify him as a Falun Gong practitioner if he returns to China, and that he will suffer persecution as a result.
The applicant has made consistent claims throughout the application and hearing processes that the authorities in China know his name and have an interest in him. The Tribunal takes into account his evidence that this interest arose after he left China and does not consider his ability to obtain a passport and depart that country casts any doubt on this claim.
The United Kingdom Home Office (UKHO) refers to the risk of coming to the adverse attention of the Chinese authorities, noting that:
In the country guidance case of LL the [UK Tribunal] held that ‘... our first conclusion as to risk, from the objective evidence as a whole, is that, absent special factors, there will not normally be any risk sufficient to amount to “real risk” from the Chinese authorities for a person who practices Falun Gong in private and with discretion. On any assessment the number of Falun Gong practitioners in China is very large indeed. The figures quoted range from 2 million to some 100 million. So far as can be gathered from the evidence before us, the number of people who have faced detention or re-education by the Chinese authorities as a consequence of Falun Gong activity, whilst large in absolute terms, is a relatively small proportion of the overall number of practitioners. This indicates that the large majority of those who practice Falun Gong in China in privacy and with discretion do not experience material problems with the authorities’ … [but the] ‘risk of material ill-treatment escalates significantly when a practitioner does engage in activities that are reasonably likely to bring him to the notice of the authorities. … Decision makers must therefore consider whether the person – even if only practising Falun Gong in their own home – would on return be at risk of treatment amounting to persecution and/or serious harm in their particular circumstances.[10]
[10] United Kingdom Home Office (UKHO), ‘Country Policy and Information Note China: Falun Gong’, Version 3, November 2023, at 3.1.12 – 3.1.15, >
The Tribunal has considered the comments above and has weighed the applicant’s cumulative profile and country information carefully. The Tribunal considers it is appropriate to give the applicant the benefit of any doubt. The Tribunal has accepted that the applicant is already of some interest to the Chinese authorities. The Tribunal has found above that the applicant is a genuine practitioner of Falun Gong and that his family is known to the Chinese authorities for involvement with Falun Gong. The Tribunal considers that the applicant’s cumulative profile increases the likelihood both that he will come to the attention of the authorities in China should he return, and that he will experience arrest and/or detention. The Tribunal is satisfied that there is more than a remote, and therefore a real chance that the applicant will come to the adverse attention of the Chinese authorities because of his practise of Falun Gong should he return to China now or in the reasonably foreseeable future.
On the basis of the available country information, as well as the applicant’s family’s past experiences and the applicant’s present profile, the Tribunal finds that there is a real chance that the applicant will be subjected to harassment, arrest, detention and mistreatment amounting to serious harm for the purposes of s 5J(4)(b) of the Act if he were to return to China. The Tribunal is satisfied that the harm involves systematic and discriminatory conduct as required by s 5J(4)(c) and finds that the essential and significant reason for the serious harm is his religion.
The Tribunal finds that the agents of the serious harm referred to above will be the Chinese authorities. The Tribunal is therefore satisfied that the real chance of serious harm thus relates to all areas of China and that effective state protection is not available to the applicant in China. The Tribunal finds that the applicant could not take reasonable steps to modify his behaviour to avoid the real chance of serious harm, as such modification would be contrary to the requirements of s 5J(3). The Tribunal finds that the applicant has a well-founded fear of persecution, now or in the reasonably foreseeable future, should he return to China.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria: s 36(2)(a) of the Migration Act.
Date(s) of hearing: 18 June 2025; 16 July 2025
Representative: None
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.
…
0
0
0