2110006 (Refugee) - [2025] ARTA 1584

2110006 (REFUGEE) [2025] ARTA 1584 (20 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2110006
Tribunal:General Member S Dhillon
Date:20 June 2025

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 20 June 2025 at 11:13am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – parents and aunt leaders of house church in business premises – applicant’s increasing participation – father warned, detained and released after bribe – parents’ business closed and ongoing monitoring – applicant will be imputed with father’s criminal record and face employment discrimination – vague claims, inconsistent evidence and no supporting statements or documentation – no membership or attendance and limited personal activities in Australia – limited knowledge and articulation of beliefs – obtained and renewed passport, and returned once – parents no longer lead church and no further actions against them – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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

This is an application for review of a decision made by a delegate of the Minister on 2 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of China and applied for the visa on 10 March 2019.
BACKGROUND
Evidence before the Department
The applicant is a [Age]-year-old citizen of China. He was born and grew up in Helong City, Jilin Province, and lived there with his parents until his departure. He speaks Mandarin and is of Han Chinese ethnicity. He first arrived in Australia in 2014 on a Student Visa.
The applicant made the following claims in his protection visa application:
·He came to Sydney to study.
·His parents are devout Christians and have a [Business 1] in Helong city which they had been operating for many years.
·In the evenings and on weekends some aunts and uncles would come to the [Business 1] to study the Bible and participate in Church activities.
·Since they were running a house Church, the police came to warn his parents that they were holding illegal gatherings and they were not allowed to carry out religious activities.
·His parents were worried and did not tell the applicant they are devout Christians so they did not stop the Church activities but became more careful.
·In 2018 a police officer inspected their Church and said it was an illegal religious place that was established without approval. They thought the applicant’s father was the main leader and took him to the police station and closed the [Business 1]. They lost their source of income and the applicant’s father was ill due to suffering mental pressure at the police station.
·His mother gave the police 20,000 RMB and his father was released.
·His father has told him not to return as they are being monitored and the applicant will be arrested if he returns.
·The whole situation in China is the same and the government colludes with the police. If the applicant returns, he will suffer mental and physical persecution by the police, and he will go to prison, be tortured and die.
On 20 May 2021, the delegate issued a s 56 letter to the applicant inviting him to provide further information and evidence to support his claims. The applicant did not respond.
The applicant was not invited to an interview before the delegate and a decision was made on the information in the application.
The delegate of the Minister refused the Protection visa application. The delegate was not satisfied that the applicant was Christian as claimed, or that they would have a profile adverse to the Chinese authorities or anyone else if he returned to China. The delegate was not satisfied the applicant was person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk he would will suffer significant harm.
Evidence before the Tribunal
The applicant lodged the application for review on 4 August 2021.
The applicant appeared before the Tribunal on 20 May 2025 to give evidence and present arguments. The applicant did not request the Tribunal to take evidence from any witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the conclusion of the Tribunal hearing, the Tribunal provided the applicant with 14 days to provide documentary evidence and information in support of his claims, discussed below. The applicant indicated he would. However, to date, no further information has been provided by the applicant.
Evidence at hearing
During the hearing the Tribunal discussed the applicant’s history in China prior to departing, his work history, religious practice, family history, time in Australia, and his claims for protection. The applicant’s evidence, as relevant, is summarised below.
In relation to his Protection Visa application, the applicant confirmed he completed the application form himself without assistance from anyone. When asked why he did not respond to the request for further information from the Department, the applicant then said his lawyer should have received it. The Tribunal asked the applicant again whether he had a lawyer assisting him, and the applicant responded ‘I’m not sure if he can be counted as a lawyer’. In any case, the applicant confirmed he knew what was in the Protection Visa application, that it was an accurate reflection of his claims for protection, and that he did not have any information he wished to update or correct.
Migration history
The applicant arrived in Australia in April 2014 on a Student Visa. His reason for travelling was to study and his parents helped him to apply at the time. The applicant returned to China from March – April 2017 and has not returned since that time. When asked how he found out about applying for protection, the applicant said when he started having difficulties at home he started to know about it through a friend.
The Tribunal noted the applicant had renewed his passport in 2022 and asked him how he did this. The applicant said that he followed the process online and renewed his passport through the Chinese Consulate. He confirmed he did not have any difficulty in renewing his passport.
Applicant’s family history
The applicant grew up in Helong city in Jilin province. The applicant lived at the same address with his parents from birth, until he departed China in 2014. The applicant’s family owned a [Business 1], but his parents have been unemployed since mid-2018 and they now support themselves on their savings. The [Business 1] was a [kind of Business 1] which his parents ran since before he was born. The [Business 1] was located in front of the applicant’s family home, and they lived right behind it. The applicant is an only child and speaks with his parents at least every second day.
The applicant has studied English in Australia, as well as a Diploma related to [work sector]. The applicant has been working, doing [a work task], for the last six years. Before that he worked in a [Business 1] for three years.
Applicant’s Christianity
During the Tribunal hearing, the applicant gave evidence that himself and his family are all Christian. The Tribunal asked the applicant if he specifically identified as a Christian, and the applicant responded he is ‘kind of Christian but not baptised’. When asked what denomination of Christianity they belong to, the applicant was unable to answer. The applicant said he did not know, but that they were not Catholic, and they just believe in Jesus.
The applicant first learnt about Christianity when he was very young from his aunty, approximately from the age of five. His parents were Christian before he was born. When asked if he still considered him a Christian now, the applicant again responded ‘kind of’ and that he ‘can be counted’ as a Christian. The applicant said he first became a Christian around the age of 17, and when asked what his motivation was, the applicant said it was because of his parents. When asked to explain his family’s religious practise the applicant said every day when they woke up in the morning they would pray, and before they have meals they pray and his parents would thank God for giving them food. When asked if there was anything else, the applicant said every week they were going to the [Business 1] to do a service with friends, where they were singing songs, talking about the bible, and if someone did something bad they would confess. These services were every Sunday, and were held for as long as the applicant could remember. When the applicant was young there were not many people at the service and most of them were relatives. However the relatives started bringing neighbours or friends so the number of attendees increased to 30 or so from 2014 onwards. The applicant’s aunty took the role of the pastor or leader at these services.
The applicant initially said sometimes he went but other times he was at school, and then said he started going from the age of 13 or 14. The applicant did not have any role at these services. When asked why he went, the applicant said due to his beliefs. When asked if there was anything he enjoyed about the services the applicant said he liked the freedom, everyone would talk about what they had seen or heard and what good things they had done, as well as what bad things they had done. The applicant did not do anything else to practice his beliefs in China and stated he did not attend any official churches as there were none in his city. The Tribunal asked the applicant if he could explain his beliefs. The applicant responded that his beliefs were Christianity and Jesus.
The Tribunal explored the applicant’s religious practice in Australia. The applicant’s evidence was that he does not attend church in Australia and has not since he arrived. He said he keeps the same habits he had in China in that he prays when he wakes up, when he has his meals, and in the evenings if he has done anything wrong he will also pray and tell God. When asked if he did anything else to practice his faith, the applicant said that if he can he will do good things. Aside from this, the applicant does not partake in any other religious activities. When asked why he was not baptised the applicant responded because he wanted his parents to be present when it happened and that he doesn’t need to be baptised to be Christian. His parents are baptised. When asked if he has a bible, the applicant said he had one which his aunty gave him prior to coming overseas and he had read the entire bible many years ago. The Tribunal asked the applicant if he could tell it anything about the bible such as any story or part he liked in particular. The applicant said he liked the story of Noah’s ark, and explained that during the floods Noah selected one male and female from every kind of animal who were chosen to go on a boat, then it was raining for a long time and then the flood was gone and all the animals went outside to grow. When asked why this story was special or significant to the applicant he responded because everyone speaks the same language and they want to challenge God and then said he forgot.
The Tribunal asked the applicant if there were any important religious holidays or celebrations of significance to him. The applicant responded Christmas and Easter, and when asked if he did anything in particular on these days the applicant responded he did the same as usual; he prays. When asked what it meant to the applicant personally to be Christian, he said it means he has to do good things, and if he does bad things he will go to hell, so it is like bondage. When asked what he believed as a Christian, the applicant said he believes in God, Jesus, and if he does not do anything bad he will go to heaven after he dies. When asked how he practises his beliefs on a day-to-day basis, the applicant said just like a normal person. The Tribunal asked the applicant if there was anything else he wanted to say about his religious practice that he had not mentioned so far. The applicant said there was not.
The Tribunal discussed with the applicant what his religious practice would like if he returned to China. The applicant responded that if his father had not been arrested he would be like an ordinary person, and if he goes back he will be monitored and cannot pray everyday or do anything. The Tribunal notes the applicant’s evidence had been that he prays in the morning and evening in private and that he did not go to church and asked why he would not be able to continue practising his faith in the same way in China. The applicant responded that if he goes back he cannot live his life normally and how could he practise.
During the second half of the hearing, the applicant added that he fears going back to China due to his own religious practice, despite not making this express claim in his protection visa application or at the beginning of the hearing. The applicant said that because religious gatherings are illegal, if he goes back and attends them he will be at risk of being arrested, that he wants to go to services, and he will have to suppress his thoughts. The Tribunal put to the applicant that it was difficult to see why he would start attending religious gatherings in China given his evidence during the hearing had been that he did not attend church, religious gatherings or participate in any kind of religious activities over the last 11 years in Australia and his religious practice primarily consisted of praying and confessing his sins in private. The applicant responded that he was introverted so he cannot go to church to do services in a strange place, but if his parents, aunty, or other family members are around he will go to services with them.
Findings
The Tribunal has concerns in relation to some aspects of the applicant’s evidence. Firstly, the applicant was unable to explain what denomination of Christianity he and his family belong to or what branch of Christianity they practice, other than to say they were not Catholic. The Tribunal considers that if the applicant was actively practicing his faith he would be able to explain what denomination of Christianity he practices. Secondly, the applicant had limited knowledge about Christianity and was unable to articulate in any detail why or what he believed in other than to repeatedly say he believed in God, Jesus, doing good things and confessing when he did bad things. The applicant was also unable to articulate with any clarity which Christian values or beliefs he identified with. Thirdly, when the Tribunal asked the applicant when he started identifying as a Christian the applicant said around the age of 17. The Tribunal considers this to be arbitrary in circumstances where the applicant gave evidence he was raised Christian, taught about it from a young age, and was attending services from the age of 13 or 14. This was also at odds with information in the applicant’s Protection Visa application where he stated that his parents did not tell the applicant they were devout Christians. Fourthly, when the Tribunal asked the applicant at the beginning of the hearing if he identified as, or considered himself, Christian the applicant responded ‘kind of’ twice. In contrast, by the end of the hearing the applicant claimed he was a practicing Christian and would want to attend religious services if he returned to China. To this effect the Tribunal considers the applicant’s evidence changed over the course of the hearing and considers the applicant exaggerated his claims to be a practising Christian toward the end of the hearing in an attempt to strengthen his claims after the Tribunal identified a number of concerns in relation to his other claims for protection.
However, the Tribunal accepts the applicant was brought up in a Christian household with Christian parents and was taught about Christianity from a young age and taught to pray. The Tribunal accepts that the applicant’s parents held gatherings in their [Business 1] on Sundays with other Christians, where they would talk about the bible, sing songs and confess. The Tribunal notes that in his Protection Visa application the applicant stated his uncles and aunties would come to his parents’ house in the evenings and on weekends to read the Bible and participate in Church activities, and notes that during the hearing the applicant did not make any reference to his parents holding activities in the evenings. Aside from this, the applicant’s evidence was consistent in relation to the religious activities held by his parents throughout the hearing and the information he provided was broadly consistent with the information in his Protection Visa application. The Tribunal accepts the applicant went to some of these services, but not all the time, and that he did not play any role at these services other than to attend. The Tribunal accepts the applicant enjoyed attending these services and listening to people talk about the good and bad things they had done.
Despite the concerns outlined above, the Tribunal accepts the applicant loosely identifies as a Christian due to being raised in a Christian household along with his other family members. The Tribunal accepts the applicant’s evidence that his practice in China primarily consisted of praying and attending services from time to time which were organised by his parents. The applicant did not claim to have come to the attention of the authorities or experienced any harm in China based on his Christianity in the past, and the Tribunal finds the applicant did not come to the attention of the authorities or experience any harm on the basis of his religious practice prior to departing China.
The Tribunal accepts the applicant’s evidence in relation to his religious practice since arriving in Australia, namely that he continues to pray when he wakes up, before he eats, and before he goes to sleep. The Tribunal explored the applicant’s religious practice in detail during the hearing, and based on his evidence outlined above, accepts that aside from praying the applicant does not practice Christianity in any other capacity, including; attending church or any religious groups, reading the bible on a regular basis, speaking about his faith with others or celebrating religious holidays.
Father’s criminal convictions
The applicant stated throughout the hearing that the main reason he cannot return to China is because his father was caught holding illegal Christian services by the authorities in China, he has a criminal record, and if the applicant returns to China he will be affected by his father’s criminal record and monitored by the authorities.
When asked when the first time was the family came into contact with the police, the applicant said one year when he returned home in 2016 they were warned by the police and told they should not keep so many people at home. The applicant was not there when this occurred but believes it happened on a Sunday in the [Business 1]. Because there were so many people there and they verbally gave a warning to his father. His father did not tell the applicant exactly what they said, other than that the police were not allowing them to have gatherings or services at home. However, the applicant’s father believed holding services was not illegal so he kept doing it, but he kept a low profile. When asked what he meant by this, the applicant said because Christian people didn’t have a church to go to so they kept going to the [Business 1] every day for service but they kept a low profile by entering and exiting at different times and one by one. The applicant believes the police have been monitoring his parents since the first warning they received as his parents told him this.

The applicant gave evidence that in 2018, the police broke into their home and ‘arrested everyone’, and after they found out the [Business 1] belonged to his parents his father was considered the main criminal in relation to the illegal gathering, so his father was detained. When asked to clarify the applicant said he had heard from his father that they were still holding services in the normal way and then the police broke in on a Sunday and arrested everyone there and took them to the police station. The applicant referred to an arrest warrant and said that on the warrant it stated they were arrested for gathering illegally. The applicant said that everyone including his other relatives were released but his mother and father stayed in the police station for a long time as the police believed his father was the priest/main criminal. After a few days his mother was released, but his father remained in detention. When asked how the applicant knew this had happened given he was in Australia, the applicant said as soon as it happened his aunty told him.
The applicant gave evidence his father was released at beginning of 2019. When asked how he was released the applicant said his mother was asking around and then found some connections, and paid a lot of money, maybe tens of thousands. When asked which connections he said maybe his mother found her friends’ friend but she did not tell him the details. The applicant was unable to specify where this person worked, what their role was, or whether the applicant’s mother paid a sum of money to a particular individual, the authorities, or a government body.
The Tribunal asked the applicant if his aunty was present when the gathering was interrupted by the police and he confirmed she was. When asked what happened to his aunty, noting his earlier evidence that she was leading the services, the applicant said nothing – they took oral and written evidence from her and she was released.
When asked what happened to his mother, the applicant said because they thought his father was the leader he was arrested. When asked if his mother was charged with anything the applicant said she was a secondary criminal but since her offence not as serious she was released earlier than his father.
In relation to their current circumstances, the applicant stated that because of this incident the [Business 1] was closed, his parents did not reopen the [Business 1] as they were ‘not in the mood to run it anymore’, and they have since sold the building the [Business 1] was in and continue to live in their home at the back.
The Tribunal asked the applicant if his parents were still holding services and the applicant responded that they do not have a place to do services now and he has heard from his father they are still being monitored even though it has been 6 years. The Tribunal confirmed with the applicant that his parents are no longer running services themselves, and the applicant stated that was correct, as at the time they were arrested the police said if they gathered illegally they would not be released again. The Tribunal asked if anything else had happened to his parents since this incident and his father’s claimed detention, and the applicant said that was everything as far as he knew.
The Tribunal explained its concerns that the applicant had not provided any corroborating evidence in relation to the claimed events and asked the applicant if he could provide any supporting evidence in relation to the warnings his parents had received, their arrests and detentions, or anything that indicated they had been contacted by the authorities such as written warnings, evidence of arrests, evidence of detention, and any evidence of his father’s criminal record. The applicant responded that in China if someone has a criminal record it can only be read within an organisation in China, you can only get certificates to show that you do not have a criminal record. The Tribunal noted that the applicant had not nominated any of his family members as witnesses, or provided statements from them, despite claiming they were all present when these incidents occurred. The applicant said he could ask his mother and aunty to see if they had any documents and that if they had evidence it would be kept somewhere. The Tribunal provided the applicant with 14 days and encouraged him to provide any documents to support his claims. To date, the applicant has not provided any further evidence or contacted the Tribunal to request further time.
The Tribunal then put to the applicant that even if it accepted his parents ran services in their [Business 1] in the past and were arrested and detained as a result, the events he described occurred a long time ago and during the time he was in Australia, he was not involved in running the services, and he was not even in the country at the time, and that it was difficult to see how and why the authorities would be interested in him specifically if he returned to China. The applicant responded that in China, if someone commits a crime the next three generations will be affected. He said in China they have ‘files’ that will go with a person for the rest of their life, and if they want a job their communal record will show crimes that your father committed, and this would also be passed to any child he has and they will be incriminated too. The applicant also stated if he returns he will not be able to find a job due to his father’s criminal record, and no matter where he goes in China, the record will be with him and he cannot do anything, he won’t have an income, and he will die of hunger.
The Tribunal noted the applicant had a lot of work experience in Australia working in [Business 1] and also doing [a work task] in the [work sector] and queried why he would not be able to find any kind of employment in China. The applicant reiterated his claim that no matter what job they do in China they need to investigate his background and if he has a criminal record he will not be hired, unless he collects bottles and rubbish.
At the conclusion of the hearing, the Tribunal reminded the applicant that it was his responsibility to present his case and any evidence or information which would support his claims, and the applicant undertook to provide evidence of his father’s arrest and criminal convictions.
Findings
The applicant’s evidence in relation to his family’s religious services was broadly consistent throughout the hearing. As noted above, the Tribunal accepts the applicants’ parents were running services on Sundays in their [Business 1], which were attended by relatives and friends. The applicant’s evidence in relation to his parents’ interactions with the authorities was vague at times, however, the Tribunal is conscious the applicant was in Australia at the time of these events, he did not witness them directly, and he was told about these events afterwards by his parents which could account for the lack of detail. The Tribunal also notes the applicant consistently made this claim from the time he lodged his Protection Visa application and throughout the hearing. On this basis, the Tribunal accepts that the applicant’s parents came to the attention of the authorities at some point in 2016 and were issued a verbal warning. The Tribunal accepts that after this, the applicant’s parents tried to keep a low profile but nevertheless continued to hold services on Sundays. The Tribunal also accepts that sometime in 2018, the police arrived at his parents’ [Business 1] on a Sunday while there was a service in progress and arrested the individuals who were at the service and closed the [Business 1].
The Tribunal notes this is also consistent with country information from the Department of Foreign Affairs which indicates that particularly prior to 2023, house churches have been threatened with official closure or closed by the authorities in China in the past and have had their leaders arrested and detained for subverting the law.[1]
[1] Department of Foreign Affairs Country Information Report – People’s Republic of China, 27 December 2024, [3.84].
The Tribunal also considers it plausible that the applicant’s father was considered by the police to be leading or organising the services, given he owned the [Business 1]. The Tribunal notes the applicant’s evidence was consistent throughout the hearing that his father was arrested and detained for a long time.
In relation to the applicant’s mother, the applicant did not state in his Protection Visa application that she was detained, however, at hearing the applicant gave evidence that she was detained briefly for a few days and then released, while his father remained in detention for longer. The Tribunal prefers the applicant’s evidence at hearing and accepts his mother was detained, but then released after a few days. The Tribunal also accepts the applicant’s evidence that his aunty was detained and released shortly afterwards.
The Tribunal accepts the applicant’s evidence that his father was detained for around 6 months and released in early 2019. The applicant’s evidence in relation to how his father was released was vague. He initially stated that his mother was looking around and found some connections and paid some money but was unable to provide further detail in relation to who these connections were or how much money was paid, other than to say ‘maybe tens of thousands’ and that maybe his mother found a friend’s friend. Despite the applicant not being able to provide further detail in relation to how his father came to be released, the Tribunal accepts that his mother paid a large sum of money to an individual or government authority and this led to his release, and notes this is also consistent with information in the applicant’s Protection Visa application. In accepting the applicant’s evidence, the Tribunal has also had regard to relevant country information which indicates that bribery and corruption does occur in China.[2]
[2] Department of Foreign Affairs Country Information Report – People’s Republic of China, 27 December 2024, [2.58] – [2.59].
The applicant referred to an arrest warrant that was issued to this father in his evidence, however, he had not provided this to the Tribunal despite being requested to do so. Despite this, as noted above, the Tribunal accepts the applicant’s father was administratively detained for a period of around 6 months, and eventually released after the applicant’s mother paid a sum of money to an individual or government authority. In this respect, I note relevant country information indicates that administrative detention can be imposed in China for crimes of a minor nature that are not serious enough to warrant criminal prosecution and punishment under criminal law.[3] The Tribunal also accepts the applicant’s father experienced some mental distress as a result of is detention.
[3] Department of Foreign Affairs Country Information Report – People’s Republic of China, 27 December 2024, [4.21].
Although the applicant was able to provide relatively detailed and consistent evidence in relation to the events that led to his father’s detention, when asked about his father’s claimed criminal convictions, his evidence was extremely vague when compared with his earlier evidence. When asked what his father was charged with, the applicant said he was charged as the principal criminal. However, the applicant was unable to provide any detail in relation to what offences his father was charged with, whether he was convicted by a court, or whether he served any prison sentence, other than to repeatedly state that his father has a criminal record.
The Tribunal raised its concern with the applicant that he was not able to provide any detail in relation to his father’s criminal convictions, and as outlined above. The Tribunal places weight on the applicant’s failure to provide any further information or supporting evidence, particularly in relation to his father’s claimed criminal record, given it is central to his claims. The Tribunal has considered the applicant’s explanation at hearing that in China if someone has a criminal record it can only be read within an organisation in China, and individuals can only get certificates to show that they do not have a criminal record. The Tribunal does not accept this explanation accounts for his failure to provide any corroborative evidence, particularly in circumstances where: the Tribunal raised its concerns in relation to the lack of detail and supporting evidence at multiple points throughout the hearing, the Tribunal encouraged the applicant to speak with his parents, in particular his father, and obtain further details in relation to the criminal conviction, the Tribunal reminded the applicant that it was open to him to provide witness statements from his parents, and the Tribunal provided reasonable opportunity for him to do so. Based on the concerns outlined above, and in particular the applicant’s vague evidence and lack of any supporting evidence, the Tribunal does not accept the applicant’s father was ever charged or convicted of any offence, held a criminal record, or currently holds a criminal record.
In relation to his parents’ current circumstances, the Tribunal accepts the applicant’s oral evidence they closed their [Business 1] permanently after incident in 2018 as they were ‘not in the mood’ to run it anymore, they have since sold their [Business 1], and they do not work in any formal capacity but rely on their savings. The Tribunal accepts the applicant’s evidence that his parents no longer hold or attend house church services.
The Tribunal has considered the applicant’s evidence that his parents are still being monitored. The Tribunal does not accept the applicant’s parents continue to be monitored some seven years after his father was detained, particularly in circumstances where they sold the premises that they used to conduct the house church services. The applicant was also unable to explain to the Tribunal why his parents would still be monitored given the significant time that has passed, and other than his bare assertion that his parents were being monitored, the applicant did not provide any further information or evidence on this point. Given the Tribunal’s findings that the applicant’s parents were not charged with any criminal offences, the Tribunal does not accept they are of sufficient interest to warrant monitoring from the authorities seven years after they were detained and considers this to be speculative, particularly in circumstances where it has accepted the applicant’s parents ceased holding religious services in mid-2018.
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 whether the applicant faces a well-founded fear of persecution from the authorities in China based on his profile as a Christian, through his association with his father who the applicant claims has a criminal record, or for any other reason under s 5J(1). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Does the applicant face persecution on the basis of his father’s criminal record?
As outlined above, while the Tribunal accepts the applicant’s father was administratively detained, it does not accept he was ever charged or convicted of a criminal offence or that he holds a criminal record, or that his parents continue to be monitored by the authorities in China. Given the Tribunal does not accept the applicant’s father has, or ever had, a criminal record it does not accept the applicant would also be imputed to have a criminal record or be subject to collective punishment or blacklisted by the authorities on this basis. The Tribunal is not satisfied the applicant will be arrested, monitored, targeted, detained, or harmed by the authorities in China in the reasonably foreseeable future on this basis, or that he would be deprived of the capacity to find employment, access basic services or subsist.
The Tribunal has also considered whether the applicant would face serious harm in China due to his association with his parents who previously ran house church services and any imputed religious profile. The Tribunal has considered the applicant’s circumstances and places weight on the fact that the applicant was not in China when his parents encountered the authorities, he was not directly involved in the events in any way himself, and over seven years has now passed since those events with no further incidents. The Tribunal has considered the applicant’s explanation that in China, if someone commits a crime the next three generations will be incriminated, and he will not be able to find a job due to his father’s criminal record, and no matter where he goes in China, the record will be with him. The Tribunal does not accept this claim in circumstances where it does not accept the applicant’s father has ever held a criminal record.

The Tribunal explored with the applicant whether anything further had happened to the applicant’s parents since their encounter with the authorities in 2018 and his father’s detention, and the applicant gave evidence that nothing further has happened as far as he was aware. The Tribunal places weight on this evidence and accepts the applicant’s evidence that nothing further has happened to his parents since 2018. The applicant did not claim that his parents have been threatened or harassed by the authorities, or anyone else, since 2018. The applicant only made vague claims that his parents continue to be monitored, which the Tribunal does not accept, as outlined above. The Tribunal considers that if the applicant’s parents continued to be threatened or harassed by the authorities, the applicant would have raised this during the hearing and the Tribunal provided him opportunity to do so. Based on the applicant’s evidence the Tribunal is not satisfied there is a real chance the applicant’s parents are of continuing interest to the authorities based on their religious profile or any anti-government profile. It follows from this that the Tribunal does not accept there is a real chance the applicant would be imputed with any religious or anti-government profile if he returned to China due to his parents’ past activities, or that he would be arrested upon returning to China, monitored, detained, mentally or physically harmed, or face any serious harm on this basis.
Does the applicant face persecution based on his religious practice in China?
The Tribunal has considered whether the applicant would face a real chance of serious harm based on his religious practice as a Christian in China in the reasonably foreseeable future. As discussed above, the Tribunal accepts the applicant loosely identifies as a Christian, and that his practice consists of praying and confessing at home in private.
The Tribunal has considered what the applicant’s future conduct would like if he returned to China. Based on the applicant’s evidence, the Tribunal accepts that the applicant would continue to pray by himself at home and confess when he had done something bad. The Tribunal also notes the applicant’s evidence that his parents no longer hold religious services at home since their claimed encounter with the police in 2016. The Tribunal accepts the applicant’s parents no longer hold Sunday services, and notes this is also consistent with the applicant’s evidence that they sold the [Business 1] which was also the premises where the services were previously held. Based on this, the Tribunal finds the applicant would not be attending Sunday services run by his parents upon returning to China.
The Tribunal has considered the applicant’s evidence that he would want to attend church if he returned to China. The Tribunal does not find this evidence convincing in circumstances where the applicant described himself as ‘kind of’ Christian twice at the beginning of the hearing, his knowledge of Christianity was limited, his religious practice over the last 11 years has consisted of praying in private, and the applicant has not demonstrated any desire to attend Church or participate in any kind of religious activities at any point since arriving in Australia despite having the freedom to do so. The Tribunal does not accept the applicant’s explanation that he has not attended Church in Australia because he is introverted and considers that if attending church was important to the applicant’s religious practice, he would have attempted to attend a church service at least once over the last 11 years. The Tribunal places weight on the applicant’s failure to do so and finds that attending church or religious groups/activities is not significant to the applicant’s religious practice. While the Tribunal has accepted the applicant sometimes attended Sunday services in China, his evidence was that he did not have any particular role, and his favourite part of the services was listening to the good and bad things people had done. The Tribunal observed that the applicant did not describe these services as being significant to him in a religious sense, but rather that he derived a sense of community from these services. The Tribunal finds that the applicant attended these services largely because they were run in his family’s [Business 1] and were attended by a number of his relatives and community members, rather than because it was significant to his own religious practice.
The Tribunal also explored whether the applicant’s parents still attended house churches or services, and the applicant gave evidence that his parents do not have any place to do services anymore, they have not attended services since they came to the attention of the police and they are worried they are being monitored. The Tribunal accepts the applicant’s evidence that his parents no longer attend any house church or religious services. As the Tribunal considers the applicant’s primary motivation in attending house church services in the past was due to his family and community ties, the Tribunal considers that given the applicant’s parents no longer attend church services, this would be a further disincentive for him to attend any house churches upon return.
In circumstances where the Tribunal has accepted the applicant’s parents are no longer running Sunday services or any kind of house Church and are not attending any services themselves, and the applicant has not evidenced any desire to attend church or Sunday services over the last 11 years, the Tribunal does not consider it plausible the applicant would seek out and attend church or religious services if he returned to China.
The Tribunal also notes that when the matter was before the Department, the applicant was sent a natural justice letter by the Delegate requesting further information in relation to his religious practice, which the applicant did not respond to. The applicant did not provide any reason for his non-response when asked about this by the Tribunal, other than to say his lawyer should have received the letter. Further, the Delegate’s decision, which the applicant provided a copy of to the Tribunal also noted that the applicant did not provide detailed information in relation to his religious practice and the Delegate ultimately did not accept the applicant was a Christian as claimed, or that he would face serious harm on this basis. The Tribunal finds the applicant was put on notice at least twice prior to coming to the Tribunal hearing, that his religious practice and whether he would face serious harm on this basis was in issue. Despite this, when the Tribunal asked the applicant his reasons for fearing serious harm at the beginning of the hearing, the applicant stated he feared harm due to this father’s criminal record, and did not mention any claims to fear harm based on his own religious practice or profile. The Tribunal places weight on this.
The Tribunal also places weight on the variation of the applicant’s evidence in respect to his future religious practice. The Tribunal notes that the applicant did not claim to be a practicing Christian at the beginning of the hearing and described himself as ‘kind of’ Christian. As noted above, the applicant did not claim to fear harm on the basis of his religious practice when asked about his claims at the beginning of the hearing and it was only as the hearing progressed and the Tribunal identified concerns with the applicant’s evidence that he stated he would attend church if he returned to China and feared harm on this basis. The Tribunal considers that if the applicant genuinely feared harm on the basis of his Christianity or religious profile, he would have raised this earlier in the hearing when asked about his claims by the Tribunal and considers the applicant has embellished his evidence in respect of his religious practice for the purposes of strengthening his claims for protection.
The Tribunal does not accept the applicant would attend a house church, Sunday services, any underground religious services or religious groups of any kind, or speak publicly about his religion. The Tribunal accepts the applicant would continue to pray and confess his sins in private, as is his current practice, if he returned to China in the reasonably foreseeable future. Based on the applicant’s religious practice, the Tribunal is not satisfied he would come to the attention of the authorities based on his Christianity or religious profile and considers the chance of this occurring to be remote given the applicant practises his religion by himself and in the privacy of his home. The Tribunal does not accept the applicant would be prevented from continuing his religious practice of praying and confessing by the authorities or that he will have to ‘suppress his thoughts’ as claimed, given his religious practice would be entirely personal to him and not known to the authorities. It follows from this that the Tribunal is not satisfied the applicant would face a real chance of serious harm, including being mentally or physically harmed by the authorities, arrested, imprisoned, or tortured, on the basis of his religious practice in the reasonably foreseeable future. The Tribunal finds the applicant does not hold a well-founded fear of persecution on this basis.
Employment
The applicant claimed throughout the hearing that he would not be able to find employment if he returned to China, he would be deprived of jobs due to his father’s criminal record, he will not be able to subsist, and he will die. As canvassed above, the Tribunal does not accept the applicant’s father holds a criminal record or that the applicant will be deprived of employment on this basis.
The Tribunal has considered the applicant’s extensive employment history in Australia, which includes working in a [Business 1] for three years, and doing [a work task] for the last six years. The Tribunal has also had regard to the applicant’s study, which includes an English course as well as a Diploma related to [work sector]. When the Tribunal put this to the applicant and queried why he would be unable to find employment he repeated his claims in relation to his father’s criminal record. The Tribunal does not accept this explanation and is not satisfied the applicant would be unable to find employment in China in the reasonably foreseeable future in either the formal or informal sector based on his extensive study and work history, or for any of the reasons set out under s 5J(1).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[4], the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
[4] MIAC v SZQRB (2013) 210 FCR 505
For the reasons outlined above, the Tribunal is also not satisfied the applicant will face a real risk of significant harm as a reasonable and foreseeable consequence of his removal to China.
Concluding findings
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…