2210783 (Refugee) - [2025] ARTA 1527

2210783 (REFUGEE) [2025] ARTA 1527 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2210783
Tribunal:General Member M Brereton
Date:1 July 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 01 July 2025 at 11:01am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – member of local family church/shouters – police raided meeting during return visit – detained, interrogated and physically mistreated – unhindered departure after administrative warning, but no criminal record – membership and activities in Australia – spontaneous, consistent and credible evidence and appropriate knowledge and beliefs – country information – designation as evil cult and high risk of official discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of the People’s Republic of China (China), applied for the visa on 10 April 2019. The applicant claims to fear harm because of her religion as a Christian in China. The delegate refused to grant the visa on the basis that the applicant had not provided detailed evidence of her claims, and the delegate did not accept that she is a Christian. The applicant seeks review of that decision.
On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 27 June 2025, 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 was represented in relation to the review.
BACKGROUND
The applicant first arrived in Australia in 2018 as the holder of a Student (Guardian) visa. She returned to China briefly while holding this type of visa.
Evidence before the Department
Protection visa application
The applicant was not represented or assisted at the time she made the application for the protection visa. She makes the following claims in her application:
I was born in a devoted Christian family in China. Everyone in my family believed in Lord Jesus.
While in China I actively participated in the church gathering and spreading gospel to other non-believers in the area where I was living. I was baptized when I was about [age] years old.
The church which everyone in my family was practicing in China was house church, also known as local family church. Our local family church in China was not accepted by Chinese government and was not able to register with three self-patriotic association, an organization in China that oversees all the religious activities in China.
At our local family church, we strongly believe that Lord Jesus is the head of our church, the church is the body and church brothers and sisters are the limbs of the church, which is contradictory to government registered church who are under the governance administration.
In addition, we also strongly believe in the second coming of Lord Jesus who will come to the earth to pass on the judgement on the world Those who believe in Lord Jesus will live an eternal life while those who do not believe in him will be sent to the hell. Chinese government hates our local church in China and proclaimed our local church in China as "evil cults" or "shouters". Every now and then there was a crackdown on our local church activities.
In the last several decades, many local church members had experienced significant difficulties by the Chinese authorities when they were attending local church gatherings. As our local church in China had been banned, anyone who is found to be present at government banned local church is subject to arrest and detention by the authority.
I have been to Australia three times. The first time I came to Australia was [in June] 2018, the second trip was [in September] 2018 and the most recent trip was [in January] 2019.
Since coming to Australia, I have joined the Church in Melbourne and I really enjoy the freedom of religious practice in Australia.
When I returned to China following my second trip to Australia, I have brought home some religious material which I have collected from the Church in Melbourne and those materials were difficult to obtain in China.
[In December] 2018, I arranged for a local church gathering in my family home in China and our house church gathering was raided by PSB officers from Tieling City. Police officers alleged that we were conducting an illegal religious activities in my family home and had obstructed social security. I was taken away for interrogation to Tieling City Custory Center and was placed in the custody center for two nights. Police officers were aware that I have been to Australia in the past and they were trying to find out that while in Australia, if I had any connection with international religious groups and why I had imported illegally of the religious materials to China.
Police officers interrogated me on a number of occasions and attack me when I was not telling them the truth. Police officers slapped me in the face and abused me both physically and psychologically. I was assaulted by the police officers and I sustained bruise all over the body when I was released from the custody Center.
Police officers threatened me that if I continue to practice my religious belief at local church in China, they will prohibit me from leaving the country in the future and will be sentenced to jail terms.
I again departed China [in January] 2019 as I have a valid visitor visa already and I arrived in Australia the next day. I was not aware the procedure of applying for protection visa in the past and only became aware of this recently. I am sorry for the delay of putting this protection visa until now
Invitation to provide more information
On 4 June 2024, a delegate of the Minister wrote to the applicant pursuant to s 56 of the Act and invited her to provide more information in relation to specific questions. The delegate specified:
Ability to depart China
In your application, you stated that you fear returning to China because you are a Shouter/ Local Family Church member. Country information indicates that there are strict entry / exit procedures at the airport when persons are departing China and that it is difficult for them to pass through these border control checkpoints if they are of interest to the authorities. Therefore, your ability to obtain a passport and leave China indicates that you were of no interest to the authorities when you departed.
I am inviting you to comment or provide further information about your ability to obtain a passport and to depart China.
Practise in China
In your application, you stated that as a member of the Shouters/ Local Family Church group you were persecuted by the Government so you fear returning to China. You claimed that you were arrested, detained, abused and persecuted and that you were unable to practise your Faith freely in China since the Chinese authorities regard it as an evil cult. You also mentioned that you were interrogated by the Chinese Police who wanted to know whether you had any connections with other international religious groups while living abroad. However, you did not provide details of these claims. To assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and evidence about how you came to be a member of the Shouters/ Local Family Church group and about your religious practises and personal experiences in China, including how, when, where and with whom you practised. As well, I am inviting you to provide evidence, specific dates, locations and details of events in relation to the claims that you were arrested, detained, abused, interrogated and prevented from practicing your religious beliefs freely in China, and what happened afterwards.
No practise in Australia
There is no information before me that you are currently a member of the Shouters/Local Church. I am inviting you to provide further information, including documentary evidence about your religious practises in Australia including the names and locations of any church/es or groups you attend, when you attend them, your role/s or other activities you take part in, and how you express your religious beliefs in your daily life.
State-sanctioned churches
Country information indicates that Christians with a low profile are not targeted by the authorities and that ordinary worshippers are able to attend State-sanctioned churches to practise their religion in China.
Are there any reasons why you would be targeted by the authorities because of your religion or why you would not be able to attend one of the State-sanctioned churches to practise your religion in China?
If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.
Any information that you provide in response to this letter will be taken into account in the decision on your application.
On 11 June 2022, the applicant replied to the invitation. The delegate’s decision summarises the reply as:
a.Her passport was issued [in] 2017 and at the time of applying for her passport she did not fall into the category of people listed under Article 13 of Chinese passport Law that would have their passport refused.
b.She was arrested and detained by Public Security Bureau officers in Tieling City [in] December 2018. She had been hosting a local church gathering. She was detained for a period of two nights before being released. She was in administrative detention not criminal detention.
c.She was able to leave China [in] January 2019 as her arrest and detention did not result in a serious criminal record.
d.She was able to leave China as she held an Australian visa. The Chinese authorities were not interested in her, it was her that was feeling scared and wanting to flee.
e.She grew up in a Christian family and practising her religious beliefs is an important part of her life. She attended local church gatherings once or twice a week in China at various church members’ houses.
f.Since coming to Australia [in] June 2018 she has attended churches at [Addresses 1 and 2] on a weekly basis.
g.Due to the COVID-19 pandemic, starting March 2020, church gatherings were conducted online.
h.Government registered churches in China are strictly controlled by the Chinese Communist Party which is the reason that she chose to attend a local church gathering instead.
i.Local churches are considered as evil cults or shouters by the government. People who attend local churches have experienced persecution and harm from the Chinese government for decades.
j.The Chinese government will arrest and detain anyone who attends a local church in China.
The interview
The delegate did not invite the applicant to attend an interview.
Summary of the delegate’s decision
The delegate’s decision is dated 26 July 2022. The delegate made the following findings:
The applicant has not provided detailed information about how they practise their religious beliefs or how they express their beliefs or practices. The applicant has also provided no supporting documentation or substantiating evidence of their baptism in China. Therefore, although the applicant has claimed to be a Christian, they did not provide a detailed account of their religious practise or show how it relates to them personally.
The applicant has provided no supporting documentation or substantiating evidence such as letters of support from Australian or Chinese religious organisations, religious leaders or any members of their religion.
The applicant states that they attend services at [Addresses 1 and 2] in Australia. However, the applicant has not provided the name of these churches and has provided no explanatory information about how they learnt of these places of worship or why they chose to worship at those locations. The applicant also has not provided substantiating detail of any role that they have in the Church they attend.
The applicant did not provide any documentation or supporting evidence of their claims to have been detained in China and they did not provide a reason why they were unable to do so.
The applicant was issued a passport by the Chinese authorities [in] 2017 and departed China legally. Their passport was not cancelled or confiscated, and they were not stopped from boarding a plane and departing China. Their ability to obtain a passport then depart the country while still holding a passport also indicate that the applicant may not have been of adverse attention to the Chinese authorities at the time they departed the country.
In light of these findings, the delegate was not satisfied that the applicant is a Christian whom the authorities consider a member of a Shouter sect as claimed. The delegate did not accept the claims and refused to grant the protection visa.
Evidence before the Tribunal
Pre-hearing submissions
On 11 June 2025, the Tribunal invited the applicant to attend a hearing of her application. On 25 June 2025, the applicant advised that she is now represented by a migration agent. On 26 June 2025, the applicant provided a letter of reference from a person she attends church with, and country information and media reports referring to government crackdowns on local churches in China in 2018.[1]
The hearing
[1] A printout from Wikipedia referencing “The Shouters” in China; Burrows and Xiao, ‘China cracks down on religion, crosses burned at Christian churches, Xi Jinping photos installed’, 25 September 2018; Joyce Huang, East Asia Pacific, ‘Crackdown on Christian Churches Intensifies in China’, 7 September 2018; Javier Hernandez, ‘Churches, Christians Declare “We Will Not Forfeit Our Faith”’, 25 December 2018; Bitter Winter, ‘Communist Party Monitors and Persecutes Shouters’ Church in Jiangsu Province’, 16 June 2018; China Aid, ‘Chinese Officials Crack Down On Christian Fellowship, Detain Believers’, 16 July 2019.
The applicant and her migration agent attended the hearing on 27 June 2025. Her evidence and submissions are considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is the applicant’s fear of harm as a Christian in China. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a national of China. She has provided a copy of her current Chinese passport as proof of her identity and nationality. She told the Tribunal that she does not have a right to enter or reside in any other country. The Tribunal finds that the applicant is a citizen of China, and that China is the receiving country and country of reference for the purposes of this review.
Claims
The Tribunal has had the benefit of an in person hearing with the applicant and her representative. At the start of the hearing the applicant told the Tribunal that the evidence she has provided the Department is true and correct and that she does not want to change or amend anything.
The applicant claims to fear harm from the Chinese authorities because she practices the Christian faith in a non-state-sanctioned church.
Country Information
The Australian Department of Foreign Affairs and Trade (DFAT) reports that.
Official Government of China statistics show that there are 38 million Christians who worship at officially registered churches, however, due to this narrow definition, estimates of the Christian population in China vary significantly in practice. By contrast, the 2023 US Department of State International Religious Freedom Report estimated that 5.1 per cent of the population of China was Christian (about 72 million people), although higher estimates (more than 100 million) also exist.
Official regulation of Christianity in China is in accordance with broader policies towards the Sinicisation of religions. In-country sources told DFAT in 2023 that official church services were required to begin with patriotic messages to ‘love the Party, love the homeland and love socialism’. While CCP approved Bibles were available for personal use, all content contradicting socialism was censored. Those who sold or distributed non-CCP approved bibles without authorisation faced arrest and prolonged detention. For example, Bitter Winter reported in 2023 that Chang Hao, a preacher in a small rural church in Zhenxiong County, Yunnan, had been arrested for possessing unauthorised Bibles and distributing COVID-prevention masks inscribed with Bible verses. Online Bible references were also censored and often, sacred images and representations, such as those of the Virgin Mary, had been replaced with portraits of Xi Jinping. Censorship of religious materials was prolific in 2023 and enforced by several government entities, including the SARA and the Cyberspace Administration.
DFAT assesses Christians face a moderate risk of official discrimination when attempting to practice their faith, in accordance with established religious doctrine, when it conflicts with CCP approved practice. DFAT assesses Christians face a low risk of official discrimination on the basis of their religion when accessing public and social services, housing, government employment and education. DFAT assesses official discrimination would likely relate to an individual’s activism or failure to comply with CCP directives, rather than anything specifically related to their Christian faith. As at the time of publication in 2024, DFAT was not aware of violence perpetrated against Christians because of their religion.[2]
[2] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report China’, 27 December 2024, at [3.64]-[3.66].

However, DFAT has also identified the Local Church (LC) or Shouters as being of particular adverse interest to the Chinese authorities:
The term ‘Local Church’ refers to the descendants of a Christian-based religious movement from the 1960s. They are often collectively referred to as ‘Shouters’, which refers to the loud and energetic worship practices of the various groups. Shouters are congregationally based, not led by a hierarchy or as part of a communion of churches and have experienced multiple splits and schisms.
Groups collectively designated as ‘Shouters’ often have little or nothing to do with each other, except for perhaps a shared history. They were of Protestant Christian origin but may now be indistinguishable from other small Protestant groups or share little resemblance with them. Members of these groups may not call themselves ‘Shouters’, instead using ‘Local Church’ or ‘the Assembly’ or another name. The term ‘Shouters’ has sometimes been used pejoratively by critics or the government.
Shouters may or may not be treated by the Government of China as a xie jiao. Some groups have been absorbed by TSPM, while others operate independently. Bitter Winter published an article in May 2021 in which American scholar J. Gordon Melton claimed groups that accepted the teachings of founder ‘Chairman Nee’ (in Mandarin, ‘the Old Local Church’) were not xie jiao but those groups who recognised the teachings of later leader ‘Watchman Lee’ or ‘Witness Lee’ (in Mandarin ‘Local Church’ or perhaps ‘New Local Church’) were xie jiao. DFAT was unable to verify this claim in 2023, however, understands that distinctions between different groups were not well understood by authorities, and arrests of either group was possible.
A 2020 reference in China’s media consistent with anti-xie jiao messaging, quoted Xining (the capital of Qinghai in Western China) police as saying that Shouters were illegal and ‘pretend to be Christianity’. In 2020, Beijing-based leaders of ‘the Assembly’ were sentenced to three years in prison for ‘organising a cult to undermine implementation of the law’. Bitter Winter reported in 2021 that a crackdown was occurring aimed at Shouters in Beijing, Jiangsu and Guangxi. DFAT was unable to verify these claims in 2023, however considered them plausible.
DFAT assesses individuals perceived by authorities to be ‘Shouters’, whether or not they self-identify as such, face a high risk of official discrimination based on their religion. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, could lead to government attention, including imprisonment under the same provisions of law as other xie jiao. It is illegal to proselytise and those who attempt to are subject to greater scrutiny by authorities. DFAT is unable to verify whether a former member or a person imprisoned for membership would be placed on an exit control list, however considers it plausible. DFAT notes the Shouters reflect many different groups, making it is difficult to comment on societal discrimination as a group, but assesses that a ‘Shouter’, if exposed, faces a moderate risk of societal discrimination due to the government’s sustained public campaign against them.[3]
[3] DFAT, at [3.18]-[3.122].
Consideration
The Tribunal found the applicant to be an open, engaged, and credible witness whose evidence was consistent with her written statements. She spoke of her faith and her family’s experiences in China. She said that her parents and grandparents had followed the church, and she was baptised into it when she was [age]. She and three other followers were taken to the river where a church elder performed the baptism. The applicant said that the religion is part of her family and part of her blood. She said that all of her brothers and sisters follow it. Some of them had visited a state-sanctioned church in China but they preferred to remain with the family religion and did not continue to go to the state church. She said that part of her religion is to shout joyously for Jesus, hence the name “Shouters”.
The Tribunal accepts that the applicant was baptised into a local church (LC)/Shouter faith and has practised actively since that time. The DFAT information and the information provided by the applicant corroborates the applicant’s claims about how the LC faith was viewed by authorities in China in the past.
The applicant provided an explanation of the arrest, detention, and release referred to in her written claims. She said that she had obtained three English language/Chinese language bibles in Australia. She explained that these bibles are translated directly from the source and are not altered or censored to make them acceptable to the Chinese government. She explained that government approved bibles in China are not direct translations. The applicant gave these bibles to her family, and they had a church meeting to discuss them. The police arrived and took the attendees into custody. Later in her evidence the applicant explained that the church meetings were conducted in family homes and if neighbours saw or heard what was happening, they would call the police.
The applicant said she and other members were taken into custody, detained, and questioned. She explained that she suffered physical harm during the questioning. The Tribunal asked what happened when she was released, and she said that she was told to stop following her religion. The Tribunal asked if she was required to report to the police station after release and she said she did not have to, because the police patrolled the village and could keep an eye on them. The Tribunal asked if she was told she could not leave China. The applicant said that the local police told her not to go back to Australia because she might engage with religions here, but she was not convicted or given any court orders. She said it was an administrative matter and this why she was not prevented from returning to Australia.
The Tribunal finds that the applicant was not the subject of official criminal investigation and accepts that even though the local police told her not to leave China, this was an administrative warning. It is not implausible that an administrative warning would not be communicated to the wider authorities and the Tribunal does not draw any adverse conclusions or inferences from the applicant’s ability to depart China.
The Tribunal finds that the applicant and her family in China are adherents of a LC faith and that she and her family lived, and her family continues to live in fear of detection in China.
The applicant provided consistent and detailed oral evidence about her faith and religious practise in Australia. She said that she was introduced to the church by a person she met in Australia. She has been attending the church since 2018. The applicant was able to give the addresses of the church buildings and describe the appearance and layout of the church buildings, the activities undertaken at church meetings, and the administrative and belief system of the church. She recited prayers, explained her favourite religious teachings, and spoke of the freedom that the church has compared to the state sanctioned churches in China. The applicant gave spontaneous answers to questions about bible passages and beliefs. The Tribunal is satisfied that she was answering from her personal knowledge and beliefs.
The applicant also provided a letter of reference from another member of the congregation, attesting to the applicant’s membership of the church. The writer states they have known the applicant since she began attending the church in Australia in 2018. The writer states that the applicant attends church at least once a week and in the writer’s observation, is a devoted Christian.
The Tribunal asked the applicant if she intends to continue to practise her faith if she has to return to China. She said that she would and given that she has been practising for many years, the Tribunal has no reason to doubt this evidence. The Tribunal asked whether she would be able to find her spiritual needs in a state-sanctioned church in China. She said that those churches are not free. They are directed and the followers are expected to sit and listen. She reiterated her evidence that the state-sanctioned churches are censored to what is acceptable to the Chinese government. She said that members of her family had gone to a state-sanctioned church briefly but had returned to the family church because of these issues. This evidence is consistent with the country information before the Tribunal.
Having regard to all the above, the Tribunal finds that the applicant is a genuine Christian who has been practising her faith in China and in Australia. The Tribunal finds that the applicant will continue to follow her family’s religion in the LC faith should she return to China and that she will not attend a state sanctioned-church there.
Does the applicant satisfy the refugee criterion for protection?
Having considered the country information and the applicant’s personal beliefs and intentions, the Tribunal finds that there is a more than remote or far-fetched, and therefore a real chance that the applicant will come to the adverse attention of Chinese authorities because of her attendance at a LC. The Tribunal finds that the applicant has an additional risk profile in her local area as she has been arrested and questioned in the past and warned (albeit administratively) to cease practising her religion. The Tribunal finds that the applicant has suffered arrest, detention, and physical mistreatment by the local Chinese authorities in the past. While past harm is not necessarily indicative of the chance or level of future harm, the Tribunal is satisfied on the country information cited above that the applicant faces a real chance of harm from the Chinese authorities because of her religion, should she return to China. Having considered the previous harm she has experienced, and the more recent country information cited above, the Tribunal finds that this harm may include or comprise being arrested, detained, and physically or mentally mistreated. The Tribunal finds that this is conduct that constitutes serious harm as contemplated by s 5J(5) of the Act. The Tribunal finds that this harm will be discriminatory and systematic and that the essential and significant reason for this harm will be the applicant’s religion. The Tribunal finds that the applicant therefore has a well-founded fear of being persecuted should she return to China.
The agents of persecution will be the Chinese authorities. The Tribunal finds that the real chance of persecution therefore relates to all areas of China. The Tribunal also finds that the applicant could not obtain protection against persecution from the State, because it is the State authorities in China who are the agents of persecution.
The Tribunal has considered whether the applicant could take reasonable steps to modify her behaviour so as to avoid persecution in China. The Tribunal finds that doing so will require her to alter or modify the expression of her religious beliefs and will constitute an impermissible modification requirement as contemplated by the Act.
Having regard to all the above, the Tribunal is satisfied that the applicant will face a real chance of persecution because of her religion, now or in the reasonably foreseeable future, should she return to China. The applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing:  27 June 2025
Representative:  Mr Pei Ling Zheng (MARN: 0323862)
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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