2202464 (Refugee)

The applicant, a citizen of China, sought review of a decision by the Department of Home Affairs to refuse his protection visa application. The applicant initially claimed to fear persecution in China as a practitioner of Falun Gong, a religion banned in China. However, he later withdrew this claim and sought assessment on the basis that he was an unbaptised student of Jehovah's Witnesses (JW) since 2019, providing extensive documentary and testimonial evidence to support this revised claim.

The primary legal issue before the court was whether the applicant had a well-founded fear of persecution for a Convention reason, specifically as a practitioner of Jehovah's Witnesses, such that Australia had protection obligations towards him under section 36(2)(a) of the Migration Act 1958 (Cth). The court was required to determine if the applicant was a genuine adherent of the JW faith and if effective protection measures were unavailable to him in China.

The court accepted the applicant's evidence that he does not have a right to enter or reside in any country other than China, and therefore section 36(3) of the Act did not apply. The court found that the applicant had provided substantial evidence demonstrating his genuine adherence to the JW faith, including documentary evidence of his involvement in JW activities in Australia and letters attesting to his commitment. Based on this evidence, the court concluded that the applicant had a well-founded fear of persecution in China due to his religious beliefs, and that effective protection measures were not available to him.

Consequently, the court remitted the decision under review to the Department for redetermination on the basis that the applicant is eligible for protection under section 36(2)(a) of the Act.