2204742 (Refugee)

2204742 (Refugee) [2023] AATA 4681 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Sen Tao (MARN: 1277816)
CASE NUMBER:  2204742
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:17 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 August 2023 at 5:13pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – reconstituted review – religion – Yi Guan Do (Tian Dao) – involved in Yi Guan Do activities in Sydney since 2015 – complementary protection criterion – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 19A
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZEPZ v MIMA (2006) 159 FCR 291
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

The first-named applicant (the applicant) claims to be a citizen of the People’s Republic of China (China) and is [age] years old. She was born in Fuqing City, Fujian Province, China. [In] November 2007 she arrived in Australia travelling on a Chinese passport as the holder of an Australian student visa. The two other applicants (the applicant children) are the applicant’s minor children, aged [age] years and [age] years. Both children were born in Australia and the applicant provided a copy of their NSW birth certificates.
The applicants applied for protection visas on 11 August 2016.
The applicant attended an interview at the Department of Immigration and Border Protection on 20 April 2018.
On 3 May 2018 the delegate of the Minister for Immigration and Border Protection refused to grant protection visas under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 22 May 2018.
There is no restricted material on the Department’s file.
The applicant appeared by audio and later by video conference before the Tribunal, differently constituted (Tribunal 1), on 13 November 2020, 5 February 2021 and 14 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal affirmed the delegate’s decision, and that decision was set aside, by consent, by the Federal Circuit Court on 29 March 2022. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English Languages.
The applicant gave evidence about her background, her migration history and her claims for protection. The Tribunal also received oral evidence from two witnesses who gave evidence regarding their observations of the applicant’s religious activities in Australia.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Remittal
The matter is before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Tribunal notes that Tribunal 1’s decision of 3 June 2021 was set aside because it was found to be affected by jurisdictional error. Tribunal 1 failed to consider the complementary protection criterion in s.36(2)(aa) of the Act in relation to the applicant’s Yi Guan Dao activities in Australia, including attending a Yi Guan Dao temple and teaching and reading Yi Guan Dao material at home (the Australian conduct).
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[2] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[1] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).
[2] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision were themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[3]
[3] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ.
In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearings held by Tribunal 1.
Material before the Tribunal
The applicant provided several documents to support her application for a protection visa, including:
Documents provided to the Department and held on file No [number]:
·Copy of the applicant’s Chinese passports issued [in] 2022.
·Copy of the second-named applicant’s Australian birth certificate issued on [date].
·Copy of the third-named applicant’s Australian birth certificate issued on [date].
- The applicants’ Tian Dao membership cards (Chinese and English languages).
·Several photographs showing the applicant engaged in religious service and duties.
·Statement setting out the applicant’s claim (Chinese and English language) dated 29 July 2016.
·Letter of support from [Ms A] (Chinese and English language), a fellow Tian Dao Cultivator; 25 April 2018.
- Letter of support from [Ms B] (Chinese and English language), a fellow Tian Dao Cultivator; 25 April 2018.
·Letter of support from [Ms C] (Chinese and English language), a fellow Tian Dao Cultivator; 26 April 2018.
Documents provided to the Tribunal in File No 1814874:
·Delegate’s decision record dated 3 May 2018.
·Several items of country information.
·Additional photographs showing the applicant engaged in religious activities.
·Letter of support from members of the [named] Buddhist Temple; 22 October 2020.
·Statement by [Ms D], an accredited interpreter in Mandarin and English dated 14 April 2021.
·Submissions made by the applicant’s representative dated 10 February 2021.
·A Yi Guan Do Glossary list.
Documents provided to the Tribunal in File No 2204742:
- An additional submission made by the applicant’s representative dated 20 July 2023.
·Photos of Church activities in Australia.
CONSIDERATION
The issue in this case is whether any of the applicants meet the refugee criterion and, if not, whether any are entitled to complimentary protection.
The relevant law is set out in the attachment.
Background
The applicant is a Chinese citizen and is [age] years old. She was born and grew up in a rural village in [Town 1], Fuqing City [4] which is located in Fujian province approximately 40kms south of the provincial capital Fuzhou.[5]
[4] Also known by its local name of Rongcheng – Fuqing is the Mandarin version
[5] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000)
The applicant has [number] siblings; [number] older sisters who live and work in Europe and one younger brother who lives in the home village and assists his parents in their [business].
The applicants’ parents operate a [business] with their relatives, and they continue to live in the applicant’s home village.
The applicant keeps in regular contact with her parents and siblings; she stated they talk to each other regularly through a WeChat group.
The applicant attended primary and middle school in [Town 1]. She commenced vocational high school in [Town 1] but left before the end of her course because she was successful in obtaining a student visa for Australia.
The applicant’s relationship with her former partner.
The applicant has two children; her first child was born on [date] and is almost [age] years old and her second child was born on [date] and is [age] years old. Her children are included as applicants in this application for review.
The applicant claims she is separated from the father of the children but that he provides money to support the children and they have a family day once a week where they will often go to the park together and share a meal afterwards.
In the interview with the delegate the applicant stated that she lived with her former partner from June 2010 until the end of July 2015 in share accommodation at an address in [Suburb 1] and that her friend [Ms A] was the lease holder. It was put to the applicant she claimed otherwise in her application. She responded that before April 2012 she and her ex-partner lived somewhere else and that they lived with [Ms A] from April 2012 until the end of July 2015.
At the Tribunal hearing on the 27 July 2023 the applicant claimed that she met her former partner in Sydney in September 2010 when they were both working in a restaurant. Her former partner was born in [Town 2] in Fujian Province and also came to Australia as a student. She stated that they started going out together in 2010 and started living together in 2012 and shared accommodation with a housemate, [Ms A], in [Suburb 1]. The evidence given at the hearing differs from the applicant’s responses at the delegate’s interview. However, the date the applicant formed a de facto relationship with her former partner is not material to the consideration of the applicants’ claims for protection. In any event, the Tribunal accepts that the discrepancy may have been caused by a failure of memory given that some years have passed since the couple first met.
The applicant claimed that she and her former partner separated in 2015 because she found out he was cheating on her while she was pregnant with her second child. The applicant claimed she moved out of her rented accommodation with the two children. At first, she had to borrow money to survive. She stated that her former partner still lives in [Suburb 2], Sydney but as far as she is aware he does not have a visa. She is not aware whether he is working and thinks he may be receiving money from his parents. She was not able to give any further details about her former partner.
The Tribunal found the evidence regarding her relationship with her former partner to be somewhat unclear and it formed the view that she was being evasive about their actual circumstances. However, while her relationship forms part of the context of her overall claims, it is not necessary to make any findings regarding the extent of any relationship they may or may not have.
Country of reference
The applicant claims she was born in Fujian Province, China and is a citizen of China. She provided a copy of her Chinese passport which was issued [in] 2022. She has consistently claimed that she is of Chinese nationality, she spoke Mandarin fluently and she was familiar with the geography and culture of Fujian Province. The Tribunal accepts that the applicant is a Chinese citizen.
The applicant children were both born in Australia and the applicant has provided copies of their NSW birth certificates which show that the applicant is the mother of the applicant children, and the certificates include the name of the father.
In the visa application form it is acknowledged, on the children’s behalf, that the applicant children are Chinese citizens.
According to Article 5 of the Nationality Law of the People’s Republic of China, if a parent of a person born abroad is a Chinese national or both parents are Chinese nationals, then that person shall have Chinese nationality.[6]
[6] Immigration Department of the Government of the Hong Kong Special Administrative Region, Topical Issues – 9, Nationality Law of the People’s Republic of China and the National People’s Congress’ Explanations of how it is to be applied to the HKSAR, 15 December 2008, >
In the Australian Department of Foreign Affairs and Trade (DFAT) advice provided in 2011 it states:
According to local authorities and post’s understanding of Chinese regulations and practice, it is normal for a person to first have a hukou (household registration) before he/she is eligible to apply for a Chinese passport. For a child born outside China, it is normal practice for Chinese missions abroad to issue a travel document for the baby to travel. Once back in the mother’s town/village where her hukou is registered, the parents would then apply for the child’s hukou at the local police station.[7]
[7] Department of Foreign Affairs and Trade, DFAT Report No. 1261 – China: RRT Information Request: CHN38360, 30 March 2011.
The Tribunal accepts that the children are Chinese nationals because their parents are Chinese nationals. On the evidence before it, the Tribunal finds that they have acquired Chinese nationality by descent.
Taking into account the available evidence, and noting there is no issue as to identity and nationality, the Tribunal is satisfied that the applicants are citizens of China and that China is the receiving country for the purpose of s 36(2)(aa) of the Act.
The applicant’s visa history in Australia.
When the applicant arrived in Australia, she enrolled in an English language course at [Education Provider 1] which went out of business before the applicant could finish her six-month English language course.
At the time of the college’s closure, she had a student guardian who advised her to seek enrolment in another college so that she could continue with her student visa. She asked her parents to provide further funding for student fees, but their business had been impacted by the financial crisis in 2018 and they decided to prioritise support for her [number] older sisters who were studying overseas at that time.
She claimed that when the college closed her parents encouraged her to return to China with the view of her marrying a person who was involved in their business. She did not want to marry this person who was older than her and she refused to return. She stated this made her parents upset and they did not have a good relationship with her for some time.
She also stated she could not go back to China at that time because she would not have been able to find work because she was quite young. The Tribunal put it to her that, nonetheless, she had found work in Australia at this time. She stated her guardian was very helpful and found her a job and her goal was to save enough money to re-enrol in a course. She found work as a cleaner and a waitress.
She told the Tribunal her student visa ceased in March 2010, and she did not return to China at that time. She did not obtain another visa until she applied for a protection visa in 2016 and she was granted an associated bridging visa.
The Tribunal put it to her that she had not sought advice or approached the Department about her visa status for six years. She stated that she did not know what to do and did not have any one to ask; she had no friends or relatives to help. The Tribunal put it to her that she had stated that her guardian had been very helpful to her, and she could have asked her guardian to assist. She stated her guardian had suggested she re-enrol in another college and continue with her studies. When questioned the applicant stated that she had obtained rental accommodation, purchased a mobile telephone, opened a bank account and found employment during these years. The Tribunal put it to her that it was difficult to accept that she had been able to take all these steps but had not been able to get advice about her unlawful status. She said she was focusing on saving enough money to enrol in another course but as time went by, she lost her nerve and became depressed.
The Tribunal put it to her that it found it difficult to accept this evidence and that it may be that she simply wanted to stay and work in Australia and was not particularly concerned whether she had a visa or not. She said she had not given much thought to the visa issue and had not thought it was an important issue.
What are the applicant’s claims?
The applicant’s claims are set out in the statement accompanying the application for protection. The applicant discussed her claims for protection with the delegate at an interview on 20 April 2018.
The applicant gave oral evidence concerning her claims at the hearings held by Tribunal 1 on 3 November 2020, 5 February 2021 and 14 April 2021.
Following the remittal of the application to the Tribunal, the applicant provided further documents and submissions relating to country information on the situation for Chinese Yi Guan Do followers.
Essentially the applicant’s current claims are that if she returns to China, she and her sons will face serious harm from Chinese authorities because she is a Yi Guan Do follower (also known as Tian Dao) and she will continue to practice her religion together with her sons. She claimed that she took up the practice and beliefs of Yi Guan Do in Australia in 2015 some seven years after she first arrived in Australia.
In the applicant’s representative’s submission at the end of the Tribunal hearing he stated that the applicant’s children had been attending the Yi Guan Do temple and had been involved in the practices and beliefs of the temple. If they returned to China, they would not be able to practice their religion and this would be a breach of their human rights as set out in international treaties and conventions.
Assessment of Claims and Evidence
Has the applicant practiced Yi Guan Do in Australia?
In the applicant’s statement of 29 July 2016, she claimed that she was introduced to Yi Guan Do through a housemate, [Ms A]. She stated that [Ms A]’s child would cry during the night, however she noticed that after [Ms A] attended the Buddha Worship Hall (Yi Guan Do temple) her child was quiet at night. The applicant was told that medical conditions were cured by the blessings of Yi Guan Do’s deities.
She stated that after numerous invitations from [Ms A], she visited the [named] Buddhist Temple in [Suburb 3] in 2015. She stated that she converted to the Yi Guan Do religion on 15 September 2015 and attended a Yiguandao vegetarian dinner of peace after joining.
She claimed that her partner’s mother called her to offer financial support for her children. She stated that her partner’s mother had never called her before and on the same day, she received a call from her former partner who wanted to send money to support his children. She believed that her new religious awakening caused these positive interactions.
She described herself as a loyal follower by attending worship services, eating the Peaceful Meal, celebrating the Ghost Festival and preaching to her friends.
At the Department Interview on 20 April 2018, the applicant claimed she went to the temple the first day of the month and when she was asked what she does there she said she helps with clerk duties and with the general service such as handing out water, towels as well as cooking and cleaning. She was asked if and how she prays. She said she reads sutra at home. The delegate noted that in Buddhism the word sutra means Sanskrit for “thread” and refers to a set of official teachings. In the context of Yiguandao the delegate found that, according to country information, the True Sutra is never written down and is never said out loud but originates in the mind and goes from there directly to the spirit.

The applicant provided initiation cards, photographs and statements from fellow Yi Guan Do followers to the delegate.
The delegate found the applicant’s evidence to be lacking in the level of knowledge she would have expected from a Yi Guan Do believer who had attended Yi Guan Do activities for three years.
At the Tribunal 1 Hearing on 13 November 2020, the applicant stated she first had contact with Yi Guan Do when she attended a vegetarian peace meal at a Yi Guan Do temple with a friend. She slowly started to join other activities and then became a formal member on 15 September 2015.
When questioned she gave an outline of her understanding of Yi Guan Do practices and beliefs. Her account was more detailed than the information she gave to the delegate. She explained that she had been attending classes and learning more about Yi Guan Do and was continually acquiring more knowledge. She gave the address of the temple which she attended and stated she attends once every two weeks.
She stated that she learnt about the religion through teachers and prayers in classes. She stated that she attends the religious site (Fotang) daily. She also claimed that the Fotang is located at [address] and she attends every fortnight. The Tribunal considers the discrepancy in her answers may have resulted from interpreting issues during the remote hearing. It considers that the applicant stated she attended every fortnight, and this is consistent with other evidence she has given.
When asked why she applied for protection in 2016 she stated that she was not aware that Yi Guan Do was regarded as a cult in China until a fellow believer told her.
Tribunal 1 also heard a number of witnesses who gave evidence that they were fellow believers and had observed the applicant attending their temples and involved in Yi Guan Do activities since 2015.
At the Tribunal hearing held on 27 July 2023 the applicant stated she feared returning to China because she would be persecuted for being a Yi Guan Do practitioner. She fears she would be caught, detained and receive a criminal penalty which would have a negative effect on her parents and her children. She stated that in China Yi Guan Do was regarded as a cult and she could be sent to prison for three years.
She stated her friend [Ms A] introduced her to Yi Guan Do in 2015. [Ms A] is still attending the Yi Guan Do temple. She stated her friend has a visa and it could be a protection visa, but she was not sure. She stated that [Ms A] had become involved in Yi Guan Do earlier than the applicant and she observed that [Ms A] was always in a good mood when she returned from the temple and this made the applicant curious about Yi Guan Do.
The Tribunal explained to the applicant that if it formed the view that her conduct in attending the Yi Guan Do temple from 2015 was only for the purpose of strengthening her claims to be a refugee then it must disregard that conduct. The Tribunal put it to her in considering her migration history and her circumstances when she made her application for protection, it might conclude that the only reason she commenced Yi Guan Do practice was to strengthen her claims for protection. She stated that it was understandable that the Tribunal might consider this, but her belief is genuine and it gives her power in a dark place.
She stated she was introduced to Yi Guan Do in 2015 when she attended a safe vegetarian lifestyle meal organised by the temple. She joined that meal with other believers and listened to masters reciting and explaining the scriptures. She thought this meal took place in April or May 2015.
She returned to the temple after this first contact because she was impressed with the quiet nature of the service and all the people there were very nice to her. After that she attended about once every two weeks for cultivation and once a month for the vegetarian meal. She stated she is now enrolled in the five year practice course in which she will develop her knowledge of the religion. She attends the [named] family temple and occasionally the [named] temple. The family temple is located in the home of one of her witnesses and that temple is open to practitioners and has an altar at which they can pray. She claims she regularly attends the vegetarian meals and the other events organised by the temple.
The applicant stated that a Yi Guan Do follower has to regularly recite scripture, follow the three treasures and practice the religion in the mind and body. She is required to do good deeds and give back to society. The aim is to cultivate the mind and the religion has an impact in all aspects of life. She attends events every two weeks and has a number of jobs in the temple including taking photographs, teaching children and socialising. She stated there were seven public temples in Sydney as far as she is aware.
She stated that if there was no temple, she could continue to practice Yi Guan Do at home and apply for a temporary shrine at home. Further, the scriptures could be recited at home.
Two witnesses gave evidence at the Tribunal hearing held on 27 July 2023. The first was [Ms E] who arrived in Australia in 2002 and is now an Australian citizen. She became a permanent resident after she was granted a protection visa. She first met the applicant in 2015 at the Yi Guan Do temple during the vegetarian meal and they have kept in contact since then. They see each other about three times a month. When they first met, she observed that the applicant was very young, and she reached out to her to have coffee from time to time. When they met for coffee they discussed day-to-day things because when they are at the temple they tend to discuss religious matters. She stated that the YI Guan Do group is like a large family and they teach each other things to guide them through life.
[Ms E] stated that after she became an Australian citizen, she travelled back to China to visit her mother and has gone back once every 1 to 2 years. She is not worried about going back to China because she is an Australian citizen.
[Ms F] gave evidence that she is an Australian citizen and came to Australia with her parents [age] years ago from Vietnam. She is married with two children. She met the applicant in 2015 at the temple and has had regular contact with her since they first met. She has observed that the applicant regularly attends the temple and that the practitioners work well together to help each other.
The applicant’s representative indicated that other witnesses could be available by telephone.
The Tribunal accepts that the applicant first attended Yi Guan Do activities in 2015. It is not entirely clear if she first attended in March or April/May 2015 but the Tribunal accepts that she attended a “vegetarian peace meal” with her friend [Ms A] at some time in 2015 and from then on attended on a regular basis. It accepts that she attended classes, other Yi Guan Do activities and vegetarian meals. The applicant provided initiation cards for herself and her sons and the Tribunal accepts that they have been initiated into Yi Guan Do. The applicant provided evidence from several Yi Guan Do believers as to their observations of her attendance and involvement in Yi Guan Do activities.
After hearing the applicant and her witnesses give evidence, the Tribunal formed the view that the applicant had formed a strong bond with her fellow Yi Guan Do practitioners and that she saw them as a large family group who gave continuing support to her, particularly as a single mother. It considers that this aspect of relationship with the group was the most significant for her rather than the religious aspect.
As put to the applicant at hearing, the Tribunal considers that the applicant first attended Yi Guan Do activities because she intended to apply for protection and believed that her involvement in Yi Guan Do would strengthen her claims for protection and that at that time she had no other reason for her attendance.
The Tribunal has taken into account the applicant’s circumstances in coming to this conclusion. The applicant first arrived in Australia in 2007 as a student, however, she did not complete any educational courses and did not seek to enrol in any alternative courses to the one in which she had originally enrolled. She remained living and working in Australia without a visa from 2010 to 2016 when she was granted a bridging visa in connection with her application for protection. In fact, according to her own evidence, she held a student visa until 2010 but was not studying from a date in early 2018. She did not approach the Department or seek advice for this period of time and she told the Tribunal that she was not overly concerned about not having a visa between 2010 and 2016.
The Tribunal does not accept her explanation for not seeking advice or approaching the Department after her studies ended in 2018. She claimed she did not know what to do and had no relatives or friends to assist her. However, the Tribunal finds she was able to manage many aspects of her life competently such as arranging accommodation, obtaining employment, opening a bank account, purchasing a mobile telephone and forming a de facto relationship. She also gave birth to her two children in [year] and [year] which would have necessitated interaction with medical carers as the children were born in an NSW hospital.
The Tribunal considers that once the applicant had children, she realised that it was not in her children’s interests to remain unlawful and she decided to apply for a protection visa using her claim that she had become a Yi Guan Do practitioner to support her application.
While the Tribunal accepts that the applicant commenced her involvement in Yi Guan Do in 2015 for the sole purpose of strengthening her claims for protection it considers that over the following years she has come to appreciate the strong support and kindness she encountered from fellow Yi Guan Do practitioners. It considers that she has formed strong attachments to other members of the group who she refers to as a large family and it is clear she draws some strength from their support. She demonstrated a more developed knowledge of Yi Guan Do practices and beliefs at the Tribunal hearing when compared to her knowledge at the time she attended the interview with the delegate. This is consistent with regular attendance at classes and other activities.
The Tribunal accepts that the applicant first became involved in Yi Guan Do activities in Sydney in 2015 and that she has continued to attend Yi Guan Do classes, lectures, temple activities, vegetarian meals and other Yi Guan Do activities from 2015 to date. It also accepts that she has involved her two children in Yi Guan Do activities and that she and her children have been initiated into Yi Guan Do.
Country information on the situation for Yi Guan Do members in China.
Religion in China
The current country report prepared by the Department of Foreign Affairs and Trade (DFAT)[8] notes that
3.22 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. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.
3.23 Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths. Some religious figures might be seen as better at answering prayers than others and some traditions might suit certain life events (for example, weddings and funerals) more than others. Adherents of non-Chinese religions like Christianity, Islam and new religious movements are more likely to separate their faith from their everyday lives and may label other beliefs as ‘superstition’. By extension, many Western religions and new religious movements require exclusivity and loyalty to that particular faith.
Treatment of Yi Guan Do[9] practitioners in China
[8] DFAT Country Information Report People’s Republic of China 22 December 2021
[9] Also referred to as Yiguandao
There is limited information on the situation and treatment of Yi Guan Do practitioners in China.
The most recent DFAT report notes
Yi Guan Dao
3.75 Yi Guan Dao (YGD, also: Tian Dao or I-Kuan Tao) is a syncretic Chinese religion combining elements of Buddhism, Confucianism and folklore. In December 1950, YGD was the target of a nationwide crackdown, after which the group was driven underground. It sought to re-establish itself following China's cultural revolution, but quickly became the target of campaigns of arrests in 1983.
3.76 YGD beliefs may take different forms in different communities and might be influenced by different religions when established in different places around the world. Most practitioners are vegetarian. As with other xie jiao, the range of communities and propensity to split means that different adherents might have different beliefs.
3.77 While YGD continues to be prohibited in China, it is not included on the list of active cults released in 2017 (see xie jiao (illegal cults)). The Dui Hua Foundation reports YGD followers in mainland China are likely to be concentrated in Guangdong and Fujian. The current status of the group is not clear, but data on court cases collected by Dui Hua found that arrests and imprisonment of members does occur, for example for proselytisation activities.
3.78 YGD is not as large as it used to be but reports of some attention by authorities continue. Members are not allowed to practise their religion freely. DFAT assesses that members of YGD face a moderate risk of official discrimination and a low risk of societal discrimination.
In 2019 in response to a series of questions DFAT[10] noted the following
[10] 'Yi Guandao DFAT cable IC69305L', Department of Foreign Affairs and Trade, 18 February 2019, 20190301085228
1.Yi Guandao is a religious group that combines elements of Daoism, Buddhism and folklore. It was first proscribed as an illegal sect in China in 1946.
2. In December 1950, Yi Guandao was the target of a nationwide crackdown, after which the group was driven largely underground. It sought to re-establish itself following China's cultural revolution, but quickly became the target of strike-hard campaigns in 1983. At this time, many followers were incarcerated or executed.
3. The present status of Yi Guandao in China is unclear. While followers are active in Taiwan, Hong Kong and among diaspora communities throughout South-East Asia, Australia, North America and Europe, there are no current estimates of the number of Yi Guandao followers in mainland China.
4. While Yi Guandao continues to be prohibited in China, it is not included on the list of active cults released by the China Anti-Cult Association in 2017. This suggests Yi Guandao is not considered to have a significant active presence in mainland China by Chinese authorities
5. Nevertheless, the US-based Dui Hua Foundation has reported as late as December 2018 that followers of Yi Guandao continue to be the targets of government crackdowns.
6. In February 2018, a couple from Jiangsu province were convicted of illegal business activities and given suspended sentences for distributing illegal religious materials. In May 2018, the Chenghai District government in Shantou, Guangdong province, issued a notice labelling Yi Guandao a "superstitious secret society" which "seriously and adversely affected the socialist construction of spiritual civilisation and the normal life of the people". Followers were called to register with local police, sign statements of repentance and vow not to rejoin Yi Guandao.
7. Instances of persecution appear to be localised and discrete. It is unclear in most cases whether Yi Guandao followers have been criminally charged for their religious activities.
8. According to the Dui Hua Foundation, Yi Guandao followers in mainland China are likely to be concentrated in Guangdong and Fujian, where there are higher numbers of practicing Taiwanese followers. As Yi Guandao followers in mainland China would typically maintain a discreet 'underground' presence, Post is unable to provide an estimate of the numbers of followers in Fujian or Shanxi provinces (as requested).
9. Restrictions on the free practice of religion continue to tighten in mainland China. These restrictions would likely affect followers of Yi Guandao. While the numbers of Yi Guandao followers in China remains unclear, and the group is not currently considered to be an 'active' sect in China, followers may be subject to suppression by Chinese authorities and police.
The most substantial recent discussion of the subject appears in a chapter by Ching-chih Lin, Assistant Professor in Chinese Religious Studies at the National Chengchi University in Taiwan, published in the edited 2017 book Religion and Nationalism in Chinese Societies.[11]
[11] ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p.245
Lin has produced research indicating that the Chinese authorities have engaged in dialogue with the leaders of some branches of Yiguandao in Taiwan since the 1990s, including permitting Yiguandao teachers to visit China from the mid-2000s.
Lin gives some background to the growth of Yiguandao in China in the 20^th century. He notes that the growth of Yiguandao during the Japanese occupation of the 1930s and 1940s led to it being labelled as traitorous, and consequently later suppressed:
Some leaders of Yiguandao were viewed as traitors during and after the Anti-Japanese War (1937-1945). Yiguandao rapidly expanded during this period, particularly in the areas occupied by the Japanese army or the puppet government led by Wang Jingwei 汪精衛 (1883-1944). The religion’s boom under Japanese occupation may have had different causes, such as its charitable activities and the promise of religious salvation offered by Yiguandao believers, yet this boom also earned the group the label of traitor (hanjian 漢奸) and political suppression afterwards.
Lin provides information that Yi Guan Do followers were treated as scapegoats by both the governments in China and in Taiwan, accused of conspiracy, collaboration, as well as ‘feudal superstition’, with the group brutally suppressed and ‘fundamentally eradicated’ in mainland China during the early 1950s:
Since the 1990s, Yiguandao has been associated with preserving cultural heritage in China:
From the 1990s, Yiguandao members became traditionalists preserving cultural heritage in mainland China. Some Taiwanese Yiguandao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas.
Lin asserts that although Yiguandao had been suppressed in mainland China, ‘the situation changed in the mid-1980s’, and the ensuing ‘National Studies Fever’ of the 2000s provided a means for Yiguandao to contribute to the revitalisation of traditional culture. There has, however, been no legal status for Yiguandao as loyalist or traditionalist under the PRC’s rule.
Lin states that some Taiwanese branches of Yiguandao sent people to China to establish educational programs for children ‘highlighting moral teaching’, and that Chinese authorities were in favour of Yiguandao’s return to the mainland for several reasons, including to garner support from Taiwanese and overseas Chinese people, as well as to try to stem the growth of Christian groups in rural areas:
[…] Some branches of Yiguandao sent followers back to China to set up preschools and extracurricular schools with specialization in reading Chinese classics and poems, plus highlighting moral teaching, which differentiates them from their regular competitors. In the 21st century, Yiguandao has been afforded a very promising opportunity to return to mainland China as part of the National Studies Fever. In fact, Yiguandao’s return was tacitly connived at by the PRC for multiple purposes: to promote the grassroots organizations of National Studies Fever, to win over the Taiwanese and overseas Chinese, and to stop the rapid growth of Christian churches and sects in rural areas.

According to Lin, representatives of the mainland Chinese government engaged in dialogue with Yiguandao representatives in Taiwan during the 1990s and 2000s. Lin references a book based on the Ph.D dissertation of a mainland Chinese official, which ‘suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China’:
[…] In fact, the backroom communication between the PRC and Yiguandao representatives started in the 1990s, and the public interactions began in the mid-2000s. In the first stage, the PRC government sent scholars with special backgrounds, such as retired police officers or officials of the Taiwan Affairs Office or the United Front Work Department to contact Yiguandao in Taiwan and abroad. Yang Liuchang (楊流昌), an official of the Taiwan Affairs Office, earned a PhD in Beijing investigating the history of Yiguandao and its development in Taiwan and published his dissertation in Hong Kong. This book suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China as it concentrates on the process of legalization and negotiations between the KMT and the religion.
Lin suggests that the PRC government may be seeking ways of legalising Yiguandao, but faces issues including how to manage its past criticism of the group:
[…] The PRC government is facing a similar situation that its KMT counterpart experienced three decades ago: after criticizing and suppressing Yiguandao for decades, how does it now legalize the religion and reinterpret that past criticism and suppression? One potential discourse explains that Yiguandao in Taiwan has fundamentally transformed its conspiratorial tendencies into a patriotic and philanthropic religious association. The PRC government needs a reasonable discourse to legitimate the return of Yiguandao.
Lin also states that the Chinese authorities did not include Yiguandao on official lists of ‘evil cults’ issued in 2000 and 2005, indicating a change in the attitude of the authorities. ‘Mutual understanding’ between Taiwanese Yiguandao groups and mainland authorities commenced in the 1990s and was strengthened by invitations to Yiguandao leaders to visit mainland China from 2006. The status of Yiguandao in China changed to a ‘gray’ area:
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to China now or in the foreseeable future that the applicants face a real chance of persecution for reasons of being Yi Guan Do practitioners or being involved in Yi Guan Do activities.
The applicant gave evidence that if she returned to China, she would return to her family home in the village and she would try to find a job to support herself and the children. The Tribunal asked her if she would work in her parents’ business and she stated she had not thought about that.
She claimed that if she returned to China, she would tell everyone she knew about Yi Guan Do and encourage people to become believers. She gave evidence she had told her parents about her beliefs and they did some research and told her that they objected to the belief because it was illegal. She claimed they told her that if she returned, she would have to cut ties with the religion. The applicant stated that she would not do this if she returned to China. However, the Tribunal does not accept that the applicant would engage in proselytising conduct if she returned to China. While the Tribunal accepts that she has engaged in Yi Guan Do activities in Sydney there is no evidence that she has engaged in proselytising activities in Australia, and it does not consider she will do so if she returns to China.
There is no country information which indicates that there are established Yi Guan Do temples or groups in her home district. There are some speculative reports which indicate there may be some Yi Guan Do practitioners in Fujian Province, but if there are, their activities are kept largely hidden. The applicant gave evidence that if practitioners could not attend a temple in their local area they could practice Yi Guan Do at home and set up an altar in their own home. They could pray at home and repeat those rituals which are part of the religious practice.

100. Country information available to the Tribunal indicates that the attitude of Chinese authorities to Yi Guan Do is not entirely clear. While Yi Guan Do was suppressed and largely eliminated in China in 1951 and supressed until the 1980’s, Yi Guan Do has not been included in the list of “evil cults” from 2000. Assistant Professor Lin suggests that the Chinese authorities have taken a more relaxed approach to Yi Guan Do and that they have made tentative approaches to scholars to encourage the practice in China on the basis that it is largely consistent with traditional Chinese culture. However, the Dui Ha Foundation reports that there have been some isolated reports of Yi Guan Do practitioners being charged with illegal activities, but DFAT notes that these instances appear localised.
101. Notwithstanding the lack of information which might clearly indicate whether Yi Guan Do exists in China and if it does, how practitioners might be treated, the Tribunal does accept that it is possible that Yi Guan Do practice may still be regarded as illegal by Chinese authorities and that practitioners may not be able to openly practice Yi Guan Do and could be subject to restrictions on practice.
102. However, the Tribunal does not accept that if the applicant returns to China that she will engage in Yi Guan Do activities and it does not accept that she will attempt to proselytise to other members of the Chinese community. The Tribunal considers that the applicant’s primary purpose of joining a Yi Guan Do group in Sydney was to strengthen her claims for protection. It does accept that she has also continued her involvement with Yi Guan Do in Sydney to maintain important social attachments which provide her with ongoing emotional support. However, if she returned to China she would have the support of her parents, her brother and other relatives and would not be as dependent on members of the group as she is in Australia.
103. The Tribunal has also considered whether the applicants would face a real chance of persecution if they returned to China for reasons of their involvement in Yi Guan Do activities in Australia. There is no country information which would indicate that attendance at a Yi Guan Do temple in Australia or involvement in Yi Guan Do activities would put any of the applicants at risk of serious harm if they returned to China now or in the foreseeable future. There is no information suggesting that the Chinese authorities are targeting Yi Guan Do practitioners or that they have identified Yi Guan Do as an active sect.
104. The Tribunal notes that the applicant’s representative has made claims on behalf of the applicant children. The Tribunal is not satisfied that if the applicant children accompany the applicant to China that they will face persecution for reasons of their involvement in, or activities with, Yi Guan Do in Australia. There is no country information before the Tribunal which would support such a finding.
105. The applicant’s representative submitted that the applicant children would not be able to practice their religion in China due to the new religious regulations which restrict religious education for minors. He stated that this was a breach of an important human right which is protected in a number of international treaties. While the Tribunal accepts that restrictions on the manner in which persons can practise their religion can amount to a breach of human rights, it does not accept that such a restriction necessarily amounts to serious harm. Further while there is evidence that the applicant children attend Yi Guan Do activities with the applicant, there is no evidence which indicates their level of understanding of, or commitment to, the religious practices and beliefs of the Yi Guan Do. The Tribunal does not accept that if the applicant children return to China that the restriction on the religious education of minors and its impact on the applicant children will amount to serious harm.
106. The Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.
Do the applicants meet the complementary protection criterion?
107. Having found that the applicants do not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
108. The Tribunal has taken into account its findings on material questions of fact, its view of the applicant’s future conduct and country information. For the reasons set out above, the Tribunal considers that the applicants have not engaged in conduct which would bring them to the adverse attention of the Chinese authorities upon their return to China. Further the Tribunal does not accept that the applicant or the applicant children will continue to practice Yi Guan Do if they return to China for reasons set out earlier in this decision. It considers they would return to the applicant’s home village in Fujian Province where they would have contact with, and support from, their immediate family members.
109. The Tribunal considers that there is no real risk that the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on them, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that they will suffer arbitrary deprivation of life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest they will be subject to significant harm, for any reason, if they return to China.
110. Thus, having considered the applicants’ circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China that that there is a real risk the applicants will suffer significant harm.
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
Ministerial Intervention

112. The applicant children were born in Australia and the eldest child is almost [age] years of age.
113. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’. The Tribunal does not have sufficient information before it to determine whether the applicant children come within the guidelines but notes that the applicant can make a request directly to the Minister on their behalf.
DECISION
114. The Tribunal affirms the decision not to grant the applicants protection visas.
Louise Nicholls
Senior Member

ATTACHMENT
Criteria for a protection visa
115. 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.
116. 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).

118. 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

120. 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.
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.
…

[4] (‘Rongcheng’ 2000, Microsoft Encarta Interactive Atlas 2000)

[2023] AATA 4681

17 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Statutory Construction