2202464 (Refugee)

2202464 (Refugee) [2023] AATA 4831 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul Yong (MARN: 1797819)
CASE NUMBER:  2202464
COUNTRY OF REFERENCE:                   China
MEMBER:Karen Vernon
DATE:11 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 December 2023 at 12:51pm
CATCHWORDS
REFUGEE – Protection Visa –China – religion –a practitioner of Falun Gong – an unbaptised student publisher of Jehovah’s Witnesses – baptised as a Jehovah’s Witness – a genuine adherent of the JW faith – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For the following reasons, I have concluded that the decision under review should be remitted for determination on the basis that the applicant is eligible for protection under s 36(2)(a) of the Act.
Visa and migration history
The applicant is a citizen of China who was born in [year]. He lived in China from birth until he came to Australia in 2017 at the age of [age]. He is not a citizen of any other country, and he does not have the right to enter or live in any country other than China.
On 30 September 2015, the applicant was granted a Tourist (FA-600) visa and he arrived in Australia on a valid Chinese passport on[date] August 2017. His visa expired on [date] November 2017, following which the applicant remained in Australia unlawfully for 6 months prior to applying for a protection visa.
The applicant applied for a protection visa on 13 May 2018 claiming that he left China because he had been persecuted by the Chinese government as a practitioner of Falun Gong which is a religion banned in China. He stated that he fears that he will be imprisoned and tortured by the Chinese government because of his religious beliefs as a Falun Gong practitioner if he returns to China.
On 30 September 2021 the Department sent a letter to the applicant under s 56 of the Act inviting the applicant to provide additional information and clarification of his claims. The applicant did not respond to this invitation. The applicant was not interviewed by the Department of Home Affairs.
On 3 February 2022, the delegate refused the applicant’s claims on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2) of the Act. In summary, the delegate was not satisfied that the applicant was a Falun Gong practitioner, or that the applicant had a well-founded fear of persecution for any of the reasons in s 5J(1)(a) of the Act. For the reasons set out below, I have not considered the delegate’s decision further.
Proceedings in the Tribunal
On 23 February 2022, the applicant applied for a review of the delegate’s decision and provided a copy of the delegate’s decision to the Tribunal.
By letter dated 16 May 2022, the Tribunal invited the applicant to make a written submission and provide witness statements supporting his claims by 31 May 2022.
On 18 May 2022, the applicant lodged a response with the Tribunal advising of a change of circumstances.
On 1 June 2022, the applicant submitted the following documents to the Tribunal in support of his claims:
a.a statutory declaration dated 30 May 2022 withdrawing his claims as a Falun Gong practitioner and requesting his claim be assessed on the basis that he was an unbaptised student of Jehovah’s Witnesses (JW) since 2019;
b.a bundle of documents marked Appendix A – S in support of his claims, including:
i.A – Article: “China: Jehovah’s Witnesses hunted down and deported”; Bitter Winter, 21.2.2019;
ii.B – Webpage: “How China is Ruled”; BBC News, 2019;
iii.C – Article: “China launches anti-cult digital platforms”; China Daily, 22.9.2017;
iv.D – Report: “China: Religion and Chinese Law”, Report for Department of Justice, The Law Library of Congress, Global Legal Research Center, June 2018;
v.E – Article: “China supports Russia’s Persecution of Jehovah’s Witnesses”; Bitter Winter, 7.3.2019;
vi.F – Article: “Supreme Court rules to criminalise the activity of Jehovah’s Witnesses in Russia”; JW.org, 21.4.2017;
vii.G – Article: “Russian Authorities seize Assembly Hall of Jehovah’s Witnesses”; JW.org, 25.12.2017;
viii.H – Article: “Moscow - Beijing: the anti-cult axis of evil”; Bitter Winter, 14.2.2019;
ix.I – Congregation’s Publisher Record of activities by applicant for 2021-2022;
x.J – 2021 Service Year Report of Jehovah’s Witnesses Worldwide;
xi.K – Extract from the JW Bible – Matthew 24:14;
xii.L – Extract from the JW Bible – Matthew 28:19, 20;
xiii.M – reference letters from G Rackham, W Huang, P Wallace, C Wilson and S Yang attesting to the applicant’s involvement in JW in Australia;
xiv.N – Photo evidence of bible studies;
xv.O – Ministry Letter writing;
xvi.P – Photos attending meetings of JW;
xvii.Q – Personal bible notes 1;
xviii.R – Personal bible notes 2;
xix.S – photos of personal bible and study books.
On 7 June 2022 the applicant attended a hearing before the Tribunal and gave evidence, with assistance from an interpreter in the Chinese and English languages. He was represented at the hearing.
At the outset of the hearing, when I asked if he had any other claims for protection that were different to those contained in his visa application, the applicant confirmed that he was not seeking protection as a Falun Gong practitioner, but he wished to make a claim for protection on religious grounds, namely that he was an unbaptised student publisher of JW.
The Tribunal heard oral evidence from 2 witnesses, [Mr A] (a JW bible student) and [Mr B] (a JW bible teacher) in support of the applicant.
The evidence available to the Tribunal comprises a copy of the Department’s file, the protection visa application, the delegate’s decision record (which the applicant provided), the Tribunal’s file and the evidence at the hearing.
The following documents were submitted after the hearing:
a.letter dated 22 June 2022 advising the applicant had requested to be baptised as a JW faith upon completion of his studies;
b.documents sent on 21 July 2022 labelled Appendix I(A), T and U relating to the applicant’s proselytising as a JW, the 2017 DFAT Country Information Report on China and an article entitled “Who is Jehovah’s Witnesses and why do we preach?”
c.email and photos advising of the applicant’s baptism as a JW lodged in May 2023.
ISSUES FOR DETERMINATION
The issues in this review are:
a.whether the applicant is a refugee, pursuant to s 36(2)(a) of the Act; or
b.if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk she will suffer significant harm, pursuant to s 36(2)(aa) of the Act; or
c.whether the applicant is a member of the same family unit as a non-citizen in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act, and who holds a protection visa of the same class as applied for by the applicant, pursuant to s36(2)(b) or (c) of the Act.
CRITERIA FOR PROTECTION VISA AND RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Regulations). An applicant for the visa must meet one of the alternative criteria in ss 36(2)(a), (aa), (b), or (c) of the Act. That is, the applicant 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.
Refugee criterion: s36(2)(a)
Section 36(2)(a) of the Act 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: s5H(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) of the Act.
Under s 5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379 at 397.
A fear of persecution is not well-founded if it is merely assumed, or if it is mere speculation: MIEA v Guo (1997) 191 CLR 559 at 572.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act, that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c) of the Act.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L of the Act. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Complementary protection criterion: s36(2)(aa)
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, 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) of the Act.
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.
In MIAC v SZQRB [2013] FCAFC 33 at [246], [297], the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s 5(1).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Membership of same family unit criterion: s36(2)(b) and (c)
Sections 36(2)(b) and (c) of the Act provide an alternative criterion for a protection visa where an applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa), and who holds a protection visa of the same class as that applied for by the applicant.
Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by r 1.12 of the Regulations.
Assessment of credibility
Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at 451.
It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance: Sun v MIBP [2016] FCAFC 52 at [69].
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal notes that the benefit of the doubt is to be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must be mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596.
The Full Federal Court has affirmed that the question of objective fear of persecution does not arise if a decision-maker rejects an applicant’s claim to hold a subjective fear of persecution, and there will be no need to go further in analysing the basis of the claims: Iyer v MIMA [2000] FCA 1788 (see also SDAQ v MIMA (2003) 129 FCR 137 at [19]).
Applicants are expected to present their case in full before the primary decision-maker, and not to wait until after the primary decision has been made. There is an ongoing obligation under s 104 of the Act for an applicant to change any incorrect information at the first reasonable opportunity.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS FOR PROTECTION
According to his protection visa application, the applicant fears persecution in China because:
a.he is a Falun Gong practitioner who had suffered persecution in China by the Chinese government for practising Falun Gong, which is a banned religion in China;
b.if he is returned to China, the applicant will be imprisoned and tortured by the Chinese government because of his religious beliefs in Falun Gong.
Prior to, and repeated at the hearing, the applicant withdrew his claim for protection as a Falun Gong practitioner, and made a new claim to fear persecution if returned to China because:
a.JW is an illegal religion in China, and its followers are persecuted;
b.the applicant is a believer and an unbaptised student publisher of JW.
Subsequent to the hearing, the applicant provided information to the Tribunal that he had completed his studies and been baptised as a Jehovah’s Witness on 6 May 2023.
ANALYSIS OF EVIDENCE AND FINDINGS
Identity and receiving country
The applicant provided the Department and the Tribunal with a copy of a valid Chinese passport. I am satisfied as to the applicant’s identity and the validity of his identity documents. I find that the applicant has Chinese nationality, and that the receiving country for the applicant on this review is China.
Protection in another country
I accept the applicant’s evidence that he does not have a right to enter and reside in a country other than China. I find that s 36(3) of the Act does not apply to the applicant.
The applicant’s evidence

The applicant is now [age] years old. He was born in Qingdao City, Shandong Province, China. The applicant is an only child. His parents both lived and worked as farm labourers, but if the crop season was not busy, they would migrate to other places for casual work. His parents were not well educated but they put a lot of hope in the applicant to better himself through education. His mother still lives in China. His father died suddenly in 2019 of a heart attack. He is not married and does not have any children.
The applicant grew up in a rural area and his childhood was quite normal, although he described himself as an introvert. He did not follow any religion growing up and neither did his parents. He attended school locally to high school level, then attended a technical college to [study]. The applicant claimed he was a good student. He graduated with a college diploma, but he didn’t feel he had met his parents’ expectations.
After he graduated from college, he worked in Qingdao City, but living away from home, doing 2 different jobs, one as a [occupation] and the other in a [factory]. He wasn’t very happy with his job so he resigned and returned home to live with his parents. As an introvert, he enjoyed solitary activities including listening to music, watching videos and playing online games. The applicant said he developed some “bad habits”, spending too much time on the internet watching videos, and that he was “addicted” to online computer gaming. After he returned to live at home, his parents nagged him a lot about his life, so they suggested that he travel overseas and see the world. He went to a tourism agency who arranged all the paperwork for his trip to Australia.
When he arrived in Australia, he travelled across the country sightseeing, meeting people and making friends and thought it was a great place. In September or October 2017, the applicant was sharing a house with a person who practised Falun Gong. The applicant was still engaging in his “bad habits” on the internet so he claimed his housemate suggested he should practice Falun Gong to get rid of his bad habits. The applicant says he was introduced to Falun Gong for the first time by his housemate, but he only ever practised the Falun Gong exercises a few times.
The applicant says that when he started a job as a [subcontractor] on a casual basis in Australia, on one occasion he was in a car with his boss, who he called “[name]”, sitting outside a grocery store [when] the police arrived and arrested his boss, who was then detained by the Department of Home Affairs. The applicant said he suddenly realised how important it was to have the right visa to stay in Australia, so that is when he did some research and learned about protection visas.
Protection visa application claim to be Falun Gong practitioner
Although the applicant eschewed his claim for protection based on Falun Gong in writing before the hearing, and again at the outset of the hearing, it does have relevance to his credibility as it was the basis for his original claim.
When he applied for a protection visa in mid-2018, the applicant claimed his housemate’s mother told him to claim to be a Falun Gong practitioner because they are persecuted in China. The applicant stated he included a claim to be a Falun Gong practitioner in his visa application, even though he had only practised Falun Gong a few times in Australia.
When asked to explain why he claimed in his visa application to have been a Falun Gong practitioner in China and had suffered harm in China because of Falun Gong when his evidence was that he had only been introduced to Falun Gong in Australia, the applicant claimed he had started to believe in Falun Gong and it had helped him with his online addiction. When I again asked the applicant to explain why he had knowingly claimed in his visa application that he left China because of persecution as a Falun Gong practitioner when he wasn’t a Falun Gong practitioner in China, the applicant said he didn’t think he had made such a claim. When his protection visa application was shown to him, the applicant claimed he could not recall putting that on the application form because it was such a long time ago. The applicant’s responses were not persuasive.
I raised with the applicant my concerns that he had made a deliberately false claim to be a Falun Gong practitioner in China for the purpose of strengthening his claim to be a refugee in Australia and that this reflected poorly on his credibility and may be the reason or a part of the reason for finding against the applicant’s claims. In response, the applicant said that his English wasn’t that good when he applied for protection. He said he did engage a lawyer to help but he couldn’t remember the details or whether that person helped to fill out his form, and his boss [also] helped him with reading the application.
Based on the applicant’s admission during the hearing, I am satisfied that the applicant was not a Falun Gong practitioner in China as claimed in his protection visa application.
Based on his admission that he only learned about Falun Gong in Australia and put it in his visa application at the suggestion of another person, I reject the applicant’s evidence that he had started to believe in Falun Gong or had ever been a Falun Gong practitioner in Australia.
As the applicant effectively abandoned this claim at the hearing, I have not considered it further in any detail. I find that the applicant contrived the claim to be Falun Gong practitioner to strengthen his chances of obtaining protection in Australia as a refugee and I draw an inference adverse to his credibility in relation to that claim. Ultimately, that adverse inference has not been determinative of the applicant’s claim for protection as presented at the hearing, for the reasons set out below.
New claim for protection on religious grounds - Jehovah’s Witnesses
The applicant claimed that he was first introduced to JW by a couple in Western Australia when he began renting a room in their house in mid-2018. He said they were very hospitable and would invite the applicant to attend JW meetings. He found them annoying as they “preached” to him about their faith frequently, so initially he ignored their invitations to attending JW meetings. After a couple of months, the applicant did attend JW meetings at the Kingdom Hall in [City 1] once or twice a month because he believed his landlords were actually good people who meant well, but he remained sceptical of JW and was not involved in other JW activities at that time.
In May 2019 the applicant’s father died suddenly of a heart attack in China and the applicant said he was struggling to cope with his grief. His landlords were very kind and supportive. They comforted him with their condolences and messages to have faith, telling him there was hope for resurrection after death for the most faithful followers of JW. The applicant felt comforted and calmed by their support, and he began to think about the hope of resurrection and that he could one day be reunited with his father again in paradise. He claimed this prompted him to want to learn about JW. The applicant began going to JW meetings approximately 2 to 3 times a month after his father died.
In late June 2019 a JW brother named [Mr C] came to the applicant’s house to teach him how to study about JW. [Mr C] came weekly for a couple of months teaching the applicant chapters of a JW book called “Telling the Truth in the Bible”, which was written in the Chinese language and English so the applicant understood [Mr C]’s instructions. From this, the applicant learned the basic beliefs of JW.
The applicant claimed that he found the teachings of JW were “very pure”, and he struggled with it because he felt the amount of time he spent with online computer gaming and watching videos with strong violence, all of which were considered immoral and unethical by JW, meant he was an unworthy person. The applicant also said he found this part of his studies to be the most difficult because he was only interested in hearing about the resurrection but he had to learn about everything. He stopped having bible lessons after a few months, but continued attended the JW meetings several times a month in 2019.
In December 2020, the applicant heard a public speech by a JW pastor who preached from about the meaning of Genesis Chapter 7 verse 16 - when God commanded Noah to shut the door of the Ark once Noah was inside. The applicant says this preaching struck a chord with him as he realised that he didn’t have any more time to waste in his life because Jehovah’s last day would arrive without notice, “coming like a thief” and he needed to be ready to follow. He claimed he was so astonished by this revelation that it prompted him to resume his bible studies because he didn’t want to be shut out of a chance for resurrection. Subsequently he met his current bible studies teacher [Mr B], and he has been studying with [Mr B] once a week for approximately the last 18 months prior to the Tribunal hearing.
The applicant said that he had not yet been baptised as a JW, and he is referred to as an unbaptised bible student publisher of JW. He said he wants to be baptised, but he has some bad habits to break before he is confident he will be worthy of baptism. The applicant said that since resuming his studies, he has been attending JW meetings regularly, and has begun preaching to others, which he described as part of the role of an unbaptised student publisher, and a requirement of all JW followers that they will preach the faith of JW to others. By the time all this happened, Australia was in the grips of the COVID19 pandemic, so the applicant said JW did most of their preaching through writing letters to specific addresses provided by the JW Assembly, rather than their usual practice of preaching in public places or door knocking. The applicant says he wrote his letters in the Chinese language, and they were sent to Chinese people living in WA. The applicant provided copies of examples of the letters he sent.
After he resumed his studies at the end of 2020, the applicant told his mother in China that he was studying the bible in Australia as an unbaptised student of JW, but he felt she didn’t really understand what it all meant for him.
The applicant said that he had not heard about JW when he lived in China, so he had no contacts in JW in China. The applicant said that he asked some of his JW brothers and sisters in Australia how he could continue to follow and study JW if he was returned to China. He was told that he couldn’t be given names at this stage because JW people in China needed to be kept safe and protected from authorities, but if he returned to China, the JW brothers and sisters in Australia would put him in contact with the right people in China so he could continue to follow the JW faith there.
When I asked the applicant what he thought would happen to him if he returned to China, the applicant said that he feared he would be arrested and imprisoned for being a follower of JW because the Chinese Government considers JW is an illegal religion. When asked why he feared being arrested and imprisoned in China when he was only an unbaptised student publisher, the applicant said he was still a believer of JW who wants to be baptised, and he would need to continue preaching the faith of JW to others in China. The applicant then recited a verse from the JW bible to the effect that Jehovah is the central witness to life, that all believers in Jehovah are named as witnesses and so all believers must bear witness and to pass on the words of Jehovah to all and treat all people equally. The applicant said that he had heard and read news articles about JW followers in China being persecuted, imprisoned and harmed just for preaching their faith. Because he believes in Jehovah he would have to preach about Jehovah if he returned to China, and that’s why the applicant fears that he too would be persecuted and harmed because of his religious beliefs.
When asked where he would live if he returned to China, the applicant answered that he could not go back to China because JW are not accepted in China. However, if he had to return, he would probably go back to Shandong Province.
When asked why he didn’t advise the Department that he had started studying to become a JW in late 2020 or early 2021 prior to the delegate’s decision being made in early 2022, the applicant said that was due to his honest mistake. He claimed that after lodging the protection visa application in 2018 he checked his emails regularly, but as the years passed without hearing anything, he stopped checking the emails regularly. When asked why he didn’t provide the Department with information about his changed circumstances in response to their letter in September 2021, the applicant said that he was still learning about JW and by the time he read the Department’s email in December 2021, the time for him to respond had already expired so he thought it was too late to reply.
I asked the applicant to explain why he didn’t advise the Tribunal about his JW studies when he lodged his application for a review in the Tribunal in February 2022. The applicant initially said he thought he had done so. When I pointed out that the applicant did not inform the Tribunal until 31 May 2022, the applicant apologised and stated that he did not understand the procedure until his representative helped him prepare for the hearing.
In May 2023, the applicant provided evidence to the Tribunal confirming his baptism as a JW, a ceremony involving [Mr B], the witness who gave evidence at the Tribunal.
Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claims or evidence, where the applicant raises a claim or evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision was made.
The applicant withdrew his original claim for protection as a Falun Gong practitioner shortly before the date of the Tribunal hearing, and at the hearing he formally made a claim for protection based on the grounds of religion as an unbaptised student of JW.
Based on the applicant’s evidence about his involvement with JW, I find that his explanation for not raising a new claim for protection based on his conversion to JW prior to the delegate’s decision is in part reasonable because he did not commence studying the JW faith diligently until 2021. However, his failure to raise it in February 2022 when he applied for review in the Tribunal was unreasonable as he was then well engaged with his bible studies towards conversion to JW, and leads me to draw an inference adverse to the applicant’s credibility on that issue, but ultimately the failure to raise the new claim in February 2022 is not determinative of the ultimate issues in this review.
Despite the adverse credibility findings above, I found the applicant to be a generally credible witness in relation to his evidence about his faith journey of conversion to JW. In outlining the circumstances in which he became involved with JW leading to his conversion to worshipping JW, I found the applicant’s evidence was internally consistent, and consistent with that of the witnesses he called. I found the applicant to be candid in admitting he made a false claim to be a Falun Gong practitioner. I found his evidence about his lack of reasonable explanations for not advancing his new claim to be made openly without any attempts at embellishment or tailoring of his evidence to suit a pre-determined narrative. I found the applicant’s evidence about his faith journey with JW to be given with candour and without any exaggeration, from the time of his initial disinterest, his struggles to cope following his father’s death, the comfort he found in the teaching of Jehovah to his attempts to reconcile the conflict between his bible studies and his obsession with online videos and online gaming involving violence. There was nothing to indicate that the applicant’s decision to begin studying the JW bible and develop his religious faith so he could one day be baptised was anything other than a direct response to the grief he felt in his father’s passing and the consolation, hope and purpose that receiving instruction in the JW faith gave him.
I accept his evidence about how he became involved in JW and his commitment to JW is genuine.
Evidence of Witnesses
[Mr B]
[Mr B] is a self-employed [occupation]. He was baptised as a JW in 1985 and has been a follower and teacher of JW for many years. [Mr B] joined the JW Kingdom Hall congregation in [City 1]/[City 2] approximately 5 years earlier. In early 2019 he met the applicant attending some of the JW congregation meetings once every week or two. Progressively over time, [Mr B] became friends with the applicant through attending JW meetings, social gatherings and helping others. From about August 2020, the applicant was attending JW meetings at least once or twice a week. In about November or December 2020 the applicant asked [Mr B] to become his JW bible teacher, and [Mr B] agreed.
[Mr B] explained that the bible studies course teaches students the basics of the JW bible through to building a personal relationship with Jehovah. [Mr B] said he uses JW publications printed in both English and Chinese languages to teach the applicant, so both he and the applicant work on the same reading material as each other. He also has the benefit of a Chinese translator. The studies are all done one on one between [Mr B] and the applicant, very occasionally with one other person to sit in (3 – 4 times), but always with the translator present.
According to [Mr B], there is no strict rule in the JW faith about how long a person needs to study before becoming a baptised follower of JW. It is up to the individual as to when they feel ready to be baptised, which is why JW does not practice infant baptisms. The person needs to have a reasonable understanding of JW before they will be ready to make the promises needed at baptism. If what they learn affects them, they can make the declaration of dedication to Jehovah and be baptised at any time.
[Mr B] said that he and the applicant had to stop meeting in person for bible studies sometime in April 2020 and then onwards they had to do almost all of their meetings by video conferencing due to a worldwide direction from JW headquarters in the USA to cease gathering in person as a result of COVID19. Followers of JW were also directed to cease their door to door ministry. Instead, followers undertook preaching through writing letters, making telephone calls and online conferencing. [Mr B] said that due to the COVID19 border controls in WA, there was a short period where bible studies in person were able to continue here prior to the worldwide ban being imposed on all followers.
From April 2020 onwards, the [City 1]/[City 2] JW Kingdom Hall meetings were all conducted online using videoconferencing. All other activities were moved online, except for weddings and funerals which were exempt. Since early 2022 [Mr B] said that JWs received a direction from JW headquarters to the effect that followers of JW could resume meetings and preaching in person. Witnesses are under a biblical command to engage in public preaching and must complete service reports of their preaching.
[Mr B] said that since 2021 he had observed the applicant develop over time from being a person who could give the correct answer to questions from bible readings as a new student, to a person who could analyse and express his understanding of what the bible teachings mean, and who understood what it means to be a JW.

[Mr B] impressed me as an honest witness whose evidence I accept. [Mr B] independently corroborated the applicant’s account of his bible studies and commitment to becoming a JW. The credibility of [Mr B]’s evidence as the applicant’s bible studies teacher of several years corroborates the applicant’s claim to be a genuine adherent of the JW faith, and to a lesser degree, corroborates the genuineness of the applicant’s conversion.
[Mr D]
[Mr D] is a [occupation] living in [a city]. He came to know the applicant through attending the [City 1] congregation meeting of JW. Although he could not recall precisely when he first met the applicant, he recalled that the applicant was already attending the [City 1] Kingdom Hall congregation meetings when [Mr D] started going there regularly in September 2019.
He first met the applicant at one of the congregation meetings and found out that the applicant was a student like himself. They didn’t talk too much to each other at first, but [Mr D] was attending bible studies twice a week, and the applicant was also a student at the same classes.
[Mr D] said he became a baptised member of the JW on 15 December 2019 at the [City 1] Kingdom Hall. Although [Mr D] said he didn’t get to know the applicant very well during bible studies, he got to know him a bit more after [Mr D]’s baptism. In early 2020 occasionally [Mr D] saw the applicant at congregation meetings before everything changed to online meetings. [Mr D] saw the applicant during online meetings because he had to enter his name to participate and when he opened his computer’s video camera, he could see faces and names of other participants in the online meeting.
Since being baptised, [Mr D] said that he had taken the applicant out twice to do ministry work, preaching to others, once in 2020 and once in 2021. From his personal observations since 2019 of seeing the applicant participating in the meeting, hearing him speak to others and how he answered questions at meetings, [Mr D] believes that the applicant has been progressing quite well in his studies to become a JW. [Mr D] said that he would contact the applicant approximately 3 – 4 times per year for personal reasons but would not describe them as “friends”, more like acquaintances.
Although his evidence was brief, I found [Mr D] to be a credible witness, who independently confirmed the applicant’s account of the timing of his bible studies with JW, his dedication to his studies and his continued involvement in the JW.
Support letters
The various letters from members of the JW congregation in [City 1]/[City 2] submitted by the applicant support his account of his involvement in JW, albeit that some of them have known the applicant for more time than others, and they regard the applicant as an asset to their congregation.
Delay in seeking protection
The application for protection was made over 9 months after the applicant arrived in Australia, and 6 months after his visa expired.
In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.
I asked the applicant why he had remained in Australia for over 9 months after his arrival in Australia, of which 6 months was as an unlawful non-citizen, before he applied for protection. The applicant said he knew his visa expired after 3 months, but he felt he needed more time in Australia because he really loved it. He said he didn’t know his visa prohibited him from working until he started doing construction work and was told he needed a different visa, and he only became aware of information about protection visas during research he did after he witnessed his former boss being arrested.
When asked if he had tried to contact the Department for information about his options when his tourist visa expired, the applicant said he had not done so and gave no explanation for why he had not done so.
The applicant’s explanation that he delayed making a claim for protection for 9 months because he really loved Australia and needed more time here even though he knew his visa had expired but did not seek any information about his visa options until after his former boss was arrested is inconsistent with the claimed fear of persecution as a Falun Gong practitioner as stated in his protection visa application. As I have found that the applicant made a false claim to be a Falun Gong practitioner, I find that the applicant has not adequately accounted for his delay in seeking protection in Australia. In the absence of a reasonable explanation, this casts doubt on the genuineness of the applicant’s fear of persecution if he is returned to China. Ultimately, for the reasons set out below, this issue has not been determinative in my decision.
Adverse findings on credibility
My findings adverse to the applicant’s credibility may be summarised as follows:
a.he made a false claim in his visa application for protection on religious grounds as a Falun Gong practitioner who suffered harm in China;
b.he did not satisfactorily explain why he did not raise his new claim for protection on religious grounds as a convert to JW prior to the delegate making their decision or at the time of lodging his application for a review in the Tribunal; and
c.he did not provide an adequate explanation for his 9-month delay in applying for protection in Australia.
Findings of Fact
Based on the evidence of the applicant and his witnesses which I do accept regarding his involvement in JW, I find that the applicant:
a.had his first involvement in JW in Australia in mid-2018 after he filed his protection visa application, however it was a very casual involvement at that time;
b.attended JW meetings of the Kingdom Hall [City 1]/[City 2] once or twice a month from mid-2018 until June 2019 however his involvement remained merely casual;
c.experienced a significant impact from the death of his father in mid-2019 and his grief precipitated a renewed interest in JW so he undertook some bible studies for a couple of months from mid-2019, and began attending more JW meetings than he done previously;
d.became actively involved in JW in 2020 through attending church meetings regularly, participating in social events and in the proselytising activities of JW despite the limitations of COVID19 restrictions in Western Australia;
e.studied the JW bible weekly with his bible teacher [Mr B] from early 2021 onwards, and progressed in his studies to the point where he believes in the teachings of JW and has a genuine desire to become a baptised member of JW but wanted to be worthy of committing to JW before being baptised;
f.is well regarded by members of his local JW congregation as a genuine devotee of JW who demonstrates an appropriate understanding of the JW teachings;
g.was baptised as a JW on 6 May 2023;
h.if returned to China, will engage in JW beliefs and practices, including proselytising or other activities that might attract the adverse attention of the Chinese authorities.
Country Information
I have considered the Department of Foreign Affairs and Trade Country Information Report on China dated 22 December 2021 where it states:
a.China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture (para 3.22)
b.under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden (para 3.24);
c.regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly (para 3.26);
d.overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues (para 3.27);
e.there is a small number of Jehovah’s Witnesses (JWs) in China. They are reportedly present across China but information about them is very limited. JWs claim their adherents throughout China have experienced home raids, physical abuse, separation from families (including visa cancellation and deportation of foreign spouses), interrogation, detention and placement in re-education centres. Bitter Winter, a website that reports on Chinese religious affairs with an anti-CCP standpoint, claims JWs have been prosecuted under laws that criminalise xie jiao. The same source says JWs have been questioned about their links to foreign actors (headquarters are in the United States) and their political views (3.41);
f.JWs are politically neutral and practise proselytisation as a matter of faith. They are linked to a worldwide religion headquartered outside of China. These matters could influence their treatment, but DFAT does not have enough information to make a firm assessment about societal or official discrimination (para 3.42);
g.Some new religious movements, known as xie jiao, are illegal in China. The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations (3.53);
h.there is a list of xie jiao but it can change quickly and is not available from official sources, making it difficult to determine at any time whether a particular religious movement is banned (3.55);
i.The national government’s ‘anti xie jiao’ website has articles about various groups, a section to help people find missing relatives and a place to report xie jiao activity. Membership of such groups is illegal and the profile of a person who is a member is not relevant to the chances of arrest once detected; a low profile worshipper in a xie jiao is still subject to arrest (3.56).

100. The DFAT Report also notes that torture is widely alleged in custody, and torture has been alleged in media reports to pressure non-registered religious leaders to join official faith organisations, arbitrary arrest and detention is commonly reported, prison conditions are poor, most deaths in custody result from poor prison conditions, and criminal procedures include detention without charge for up to 37 days before arrest is approved, and charges may take up to 13 months to be laid, with bail being theoretically available but rarely granted.
101. Online reports from LiCAS.news (“Jehovah’s Witnesses sentenced to prison in China’s Xinjiang”, 18 August 2020) also in Bitter Winter (July 2019 and August 2020) noted 18 Jehovah’s Witnesses arrested in Xinjiang in 2018 for ‘organising and using a xie jiao organisation to undermine law enforcement’, were sentenced to between 2 and 6 years imprisonment for what is claimed to be the first known time that Article 300 of the Chinese Criminal Code has been used against Jehovah’s Witnesses. The indictment also claimed that the defendants violated religious management regulations by establishing a congregation in Korla, Xinjiang, and converting 63 people. They were also accused of “spreading superstition and heresy” and preventing people from joining communist party organizations. The rights protection network Weiquanwang reported that most of the 18 members have been subjected to physical punishment and mistreatment during detention. The report said authorities used “conjoined” and “hug handcuffs” with an attached five-kilogram block on the detainees, and one detainee Jiang Xijun tried to kill himself by knocking his head against a wall but failed. Defense lawyers for the group appealed to the People’s Procuratorate of Korla City against the use of such methods on the prisoners, alleging they were being handcuffed for 24 hours even when going to the toilet, eating, washing, and brushing, only able to walk with their waists bent, and sometimes they had to crawl on all fours like animals
102. According to Freedom in the World - China, Freedom House, 9 March 2023:
a.the CCP regime operates a multifaceted apparatus to control all aspects of religious activity, including by vetting religious leaders for political reliability, placing limits on the number of religious authorities such as priests and imams, requiring ideological conformity within religious doctrine, and installing security cameras inside religious establishments. All religious groups must go through a rigorous process of certification to be officially recognized by the authorities, with those that refuse to do so being labelled illegal and persecuted. Certain religions and religious groups, including Tibetan Buddhists, Uyghur Muslims, Falun Gong practitioners, and Christian “house churches,” are persecuted harshly. In Xinjiang, peaceful religious practices are routinely punished under charges of “religious extremism,” resulting in detention, prison sentences, and indoctrination for many Uyghur, Kazakh, and Hui Muslims.
b.thousands of Buddhist, Taoist, and folk-religion temples and house churches across China were completely or partially demolished by authorities in recent years. Authorities were reported to have used COVID-19 restrictions and inspections to justify the closure of churches and other religious venues;
c.the government continued to operate mobile “transformation” units, which subject members of “illegal” religious groups to severe psychological and physical torture intended to force them to “transform” by renouncing their religious beliefs. Thousands of members of such illegal groups are also sentenced to long prison terms and illegal forms of detention, in which torture and ill-treatment are routine;
d.violations of due process are widespread in practice. Trials of human rights activists, religious dissidents, and other human rights defenders are routinely held in secret. Prosecutions rely heavily on confessions, many of which are obtained through torture, despite laws prohibiting such practices. Forced confessions are often televised. An ongoing crackdown on human rights lawyers has left many defendants without effective or independent legal counsel. Extrajudicial forms of detention remain widespread. The practice of “residential surveillance in a designated location” allows the police to hold individuals in secret detention for up to six months and has been deployed against human rights defenders and lawyers, and government critics.

103. According to the United States Commission on International Religious Freedom 2023 Annual Report, China Chapter:
a.In 2022, religious freedom conditions in China further deteriorated. The government continued to vigorously implement its “sinicization of religion” policy and demand that religious groups support the Chinese Communist Party’s (CCP) rule and ideology. The CCP’s United Front Work Department (UFWD), the State Administration for Religious Affairs (SARA), and state-controlled religious organizations are integral in implementing this coercive policy. Although China officially recognizes Buddhism, Catholicism, Islam, Protestantism, and Taoism, groups with perceived foreign connections—such as Uyghurs and other Muslims, Tibetan Buddhists, underground Catholics, and house church Protestants—are especially vulnerable to persecution. The Measures for the Administration of Internet Religious Information Services took effect in March, banning religious content on the internet and further constricting the narrow space for religious groups;
b.Chinese authorities control and suppression intensified against Uyghurs, Turkic Muslims, Tibetan Buddhists, Catholics, Protestant house churches, Reformed house church Christians, Falun Gong and the Church of Almighty God. Authorities detained or otherwise forcibly disappeared Catholic priests and bishops who refused to join the state-controlled Chinese Catholic Patriotic Association, carried out a nationwide crackdown on house churches by harassing, detaining, physically abusing and sentencing Protestants who refused to join the state-controlled Three-Self Patriotic Movement, targeted Reformist house church Christians and Falun Gong sources documented harassment, arrest, detention, imprisonment, torture and death of its members.

104. In summary, the country information, including references in the articles submitted by the applicant, indicates that since 2016-2017 the Chinese authorities have cracked down severely on unregistered religious groups, especially those with foreign links, and followers of such groups have been subjected to discrimination, physical harassment, ill treatment, detention, imprisonment, torture and even death. At the same time, there have been increasing restrictions put on internet and social media users. This has included blocking of foreign websites and shutting down of virtual private networks previously used to get around the great firewall. Chinese social media platforms like WeChat are monitored and private chat groups are closed down.
Does the applicant meet the refugee criterion?
105. The applicant claims to be at risk of harm because of his religion, which is one of the refugee grounds in s 5J(1)(a) of the Act. He does not claim protection for any other refugee nexus reason under the Act, and I find he has no other refugee nexus reason. He does not claim to have suffered harm in China and I find that he did not suffer harm of any kind in China.
106. The applicant contends that he will be at risk of harm from the Chinese Government because JW is identified as an illegal religion, and therefore effective protection measures will not be available to him as the agents of harm are government authorities.
107. Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
108. Notwithstanding my adverse credibility findings against the applicant, I must have regard to the protection claim advanced by the applicant before the Tribunal arising from him becoming a JW worshipper since coming to Australia and determine whether the applicant engaged in such conduct for the sole purpose of strengthening his claim to be a refugee.

109. Taking into account my findings above that the applicant is a credible witness about becoming a JW in Australia and has done so out of a genuine and committed belief in JW, it follows that I am satisfied that the applicant engaged in the conduct of participating in JW activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. In accordance with s5J(6) of the Act, I must therefore have due regard to his conduct in Australia for the purposes of determining whether he has a well-founded fear of persecution.
110. Although DFAT concludes that it does not have enough information to make a firm assessment about societal or official discrimination for JW in China, the cumulative effect of the available country information suggests that the likelihood of the applicant being persecuted in China as a JW and experiencing significant physical harassment or ill treatment, which constitutes “serious harm”, as part of a pattern of systematic and discriminatory conduct towards followers of JW that exists indiscriminately throughout China under ss 5J(4)(b) and (c) of the Act, is more than plausible.
111. Based on his evidence which I have accepted, and having regard to the available country information, I am satisfied that:
a.the applicant holds a subjective fear of being persecuted by reason of his religion as required in s 5J(1)(a) of the Act, that is well-founded in that it is not merely assumed, or mere speculation, and is more than plausible, even though the possibility of the persecution occurring may be well below 50 per cent;
b.the applicant’s religion is the essential and significant reason for the fear of persecution as required in s 5J(4)(a) of the Act;
c.there is a real chance that the applicant would be persecuted by reason of his religion if returned to China, in that the chance is not remote or insubstantial or a far-fetched possibility.

112. Where a person has a well-founded fear of persecution from state-based actors, they will not be able to avail themselves of the protection of state authorities. Independent reporting highlights government corruption in China and there are deficiencies in accessing protection from Chinese authorities. Therefore, I am not satisfied that effective state protection will be available to the applicant against the harm he fears. As the Chinese Government’s views about religious worship extend across the country, I find the applicant will be at risk of serious harm if he practises as a JW anywhere in China.
113. I am therefore satisfied that the applicant has a well-founded fear of persecution for one of the reasons in s 5J(1) of the Act, if he returns to China, now or in the reasonably foreseeable future.
CONCLUSION
114. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
115. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Karen Vernon
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4831

11 December 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Remedies