2211536 (Refugee) - [2025] ARTA 1885

2211536 (REFUGEE) [2025] ARTA 1885 (29 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2211536
Tribunal:General Member M Brereton
Date:29 July 2025

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 July 2025 at 11:54am
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – arrested, detained and fined, and parents approached by police after applicant’s departure – delays in departing and applying for protection – multiple visas and returns, and renewed passport – applied after further student visa refused and affirmed – no fear of harm claimed in student visa review hearing shortly before protection visa application made – some study and practice, usually alone – no supporting evidence – responsibility to specify particulars and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
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 21 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 16 May 2019. The delegate refused to grant the visa on the basis that the applicant’s claims lacked detail and evidence, and the applicant had not responded to an invitation to provide further detail. The delegate was not satisfied on the evidence before them that the applicant’s claims are credible.
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 2 July 2025, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant first arrived in Australia in 2009, as the holder of a student visa. She remained in Australia as the holder of valid student visas. She travelled home to China on four occasions during the Christmas holiday periods in 2010/2011, 2011/2012, 2012/2013, and 2013/2014. The Department refused to grant a further student visa in November 2017. The applicant sought review at the then AAT, but the decision was affirmed on 16 April 2019.[1] The applicant applied for the current protection visa on 16 May 2019.
[1] AAT matter 1722359 dated 16 April 2019.
Evidence before the Department
Protection visa application
In the application for the protection visa the applicant claims that she is a practitioner of Falun Gong. She states:
Falun Gong is a spiritual movement. Since 1999, there are more than 100, 000 practitioners have been detained for engaging in Falun Gong practices. Falun Gong members have been subject to excessive force, abuse, rape, detention, forcible psychiatric commitment, and torture. And I was deeply moved by the activities of Falun Gong member after I have witnessed the people who tried to explain Falun Gong to the other people were arrested by the police in the street. Through internet Falun members have described me the spiritual truth of Falun Gong and showed me the Falun Gong web sites, which state and interpret the characteristics of truthfulness, compassion and tolerance of Falun Dafa. My soul was deeply shocked by the first touching. It seems I had been looking for something in my spiritual life for many years. I didn't exactly know what was until the moment I realized I finally found it in Falun. So I soon become very interested in Falun Gong practicing. But the local authority and school doesn't allow me to chase my spiritual life.
[In] May 2008, after I had discus with my classmate about my experience in practicing Falun Gong principal of my school had warned me that if I keep practicing Falun Gong and talk about it the school will dismissed me, and school also inform my mother about this matter. After I went home and my mother told me that the public security members have come to my home and went through my computer and deleted all Falun Gong relevant materials. At that time, the police forced my father to educate me and to guarantee that I will not involve in Falun Gong anymore. They also warned my father that they will keep monitoring me online regularly. Since then I nearly collapsed as I have lost my access to Falun Gong. It is impossible for me to give up my belief even though facing the dangerous harms. So I came to Australia and now I have freedom to practice Falun Gong and participate in various activities.
Should I go back to China, I am afraid that I will be detected by the local authority. I won't give up my belief in Falun Gong and I will keep on practicing Falun Data for the rest of my life. I believe that I have well-founded fear that the authority would one day undertake investigation; I would be interrogated, eavesdropped, followed, etc. I have no hope in China.
Being regarded as a sincere Falun Gong follower, I will be deprived of the opportunity for employment, education and other basic human rights. In addition, not giving up belief in Falun Gong, I will possibly face capital punishment for committing offences in accordance of the law of CCP. Under the current human rights condition in China, my fear of persecution upon return is real and well-founded. People might be deceived by the Chinese government propaganda and drew the conclusion that persecution and discrimination in China is not applicable. What's more, writing in 2015, Noakes and Ford noted that "Post-secondary institutions across the country - from agricultural universities to law schools to fine arts programmes - require students to prove that they have adopted the "correct attitude" on Falun Gong as a condition of admission." For example, students are many universities are required to obtain a certificate from the public security ministry certifying that they have no affiliation with Falun Gong. The same is true in employment, with job postings frequently specifying that prospective candidates must have no record of participation in Falun Gong. In some cases, even changing one's address requires proving the correct political attitude toward Falun Gong.
[I]n May 2008, after I had discussed with my classmate about my experience in practicing Falun Gong principal of my school had warned me that if! keep practicing Falun Gong and talk about it the school will dismissed me, and school also inform my mother about this matter. After I went home and my mother told me that the public security members have come to my home and went through my computer and deleted all Falun Gong relevant materials. At that time, the police forced my father to educate me and to guarantee that I will not involve in Falun Gong anymore. They also warned my father that they will keep monitoring me online regularly. Since then I nearly collapsed as I have lost my access to Falun Gong.
In her application she states that she had first arrived in Australia [in] October 2009, and had returned to visit China on the following occasions:
a.[December] 2010 to [January] 2011.
b.[November] 2011 to [February] 2012.
c.[November] 2012 to [February] 2013.
d.[November] 2013 to [February] 2014.
The applicant provided documents in support of her identity and nationality. She did not provide any documents or other evidence in support of her claims arising from her practice of Falun Gong.
Invitation
On 8 June 2022, the Department wrote to the applicant pursuant to s 56 of the Act and asked her to provide further information in support of her claims. The Department also invited her to comment on:
a.The delay in leaving China after the claimed incident with the authorities.
b.The delay in lodging the application for the protection visa.
c.Her return to China on four occasions.
d.Her ability to return to and again depart China without adverse official interest.
The applicant did not respond to this invitation.
The applicant was not invited to attend an interview with the Department.
Summary of the delegate’s decision
The delegate was concerned that the applicant had not provided detailed information about how they practise their religious beliefs or how they express their beliefs or practices. The delegate noted that the applicant was issued a passport by the Chinese authorities and departed China legally in 2009. Their passport was not cancelled or confiscated, and they were not stopped from boarding a plane and departing China. The delegate also noted that the applicant indicated in their application form that they have returned to China four times since their first arrival in Australia [in] October 2009. The delegate noted that the applicant was issued a new Chinese passport in 2013. The delegate considered that the applicant’s returns to China and lack of adverse interest or harassment by the authorities significantly undermine the credibility of their claims to fear persecution in China as a Falun Gong practitioner. In light of these concerns, the delegate was not satisfied that the applicant is a Falun Gong practitioner as claimed.
Evidence before the Tribunal
The applicant has not provided any additional information, documents, comments, or claims in her application to the Tribunal, or with any prehearing submissions.
The hearing
The applicant attended the hearing on 2 July 2025. Her evidence and submissions are considered below.
Invitation to comment or respond
At the hearing the Tribunal advised the applicant that it had information before it that it needed to put to her for comment. The applicant asked for time to respond to the information in writing and the Tribunal agreed. The applicant provided a response within the time provided and the Tribunal has considered this response 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 claimed fear of harm because she is a Falun Gong practitioner. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant claims to be a citizen of China. She has provided the Department with copies of Chinese identity documents in support of this claim, including a valid Chinese passport issued in 2013. She told the Tribunal that she does not have a right to enter or reside in any other country. The Tribunal accepts the applicant’s claims as to identity and finds that she is a national of China, and that China is the receiving country and country of reference for the purposes of this review.
Claims
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is ‘well founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.[2]
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451.
At the commencement of the hearing the Tribunal asked the applicant if she had prepared the application for the protection visa. She said that she had done this herself and no one had helped her. The Tribunal asked if someone had helped her with translating her evidence and she said that she had used an online translation application. She said that she knew what is in the application and that the claims are true and correct. The Tribunal asked her if she wished to change or amend anything in her claims and she said no.
The Tribunal asked when she had first arrived in Australia. She said that she came to Australia in 2009 as the holder of a student visa. The Tribunal asked if she travelled on her own passport, and she said that she did. The Tribunal asked if she had faced any harassment or questioning at the airport when leaving China and she said she had not. The Tribunal asked her if she had returned to China at any time since leaving in 2009 and she said that she had gone home on about four occasions but could not remember the dates. The Tribunal put to her that it had information indicating she has returned to China at the end of 2009, 2010, 2011, and 2012. She said that this sounds correct. She said that she had returned to obtain materials that she needed for study and get money from her parents. She also said she returned “because I practised Falun Gong, and the police told me to go back and report to them.” The Tribunal asked her what she did when she returned, and she said that she went to the police station to submit the requested documents and then stayed with her parents. The Tribunal asked how many times she had to submit the documents, and she said that she had done so once. The Tribunal asked her if she was detained, questioned, harassed, arrested, or otherwise of interest to the authorities on the occasions she returned to China and she said no.
The Tribunal asked the applicant if the authorities had shown any interest in her or her activities since she left China. She said that about six months after she first left in 2009, the police asked her parents where she was. She then said that they asked intensely. The Tribunal asked what she meant by intensely and she said that the police used to call her parents and tell them to come into the police station. The police wanted to know if the applicant was practising Falun Gong. She said that the intensity of the requests decreased. The Tribunal asked what happened when the applicant submitted the documents to the police station in 2009. She said that they asked her if she was still practising Falun Gong, and she said no and was allowed to leave. The Tribunal put to her that it was strange that the authorities would harass her parents at the level she claims, but not detain her, or visit her when she had returned. She said that she had provided her documents, and they thought that her attitude was good.
The Tribunal asked the applicant about Falun Gong. She displayed an understanding of the history of Falun Gong, demonstrated some exercises, and said that here in Australia she usually practices at home alone. She has some friends who she speaks to online and occasionally meets up with them, but she does not usually go to Falun Gong meetings or activities.
The Tribunal asked the applicant about her application for the protection visa. She said that she had submitted it in 2019. The Tribunal asked if she had received the s 56 request for more information. She said that she had but she thought she had put enough information in her application and did not provide any additional information. The Tribunal asked why she fears harm if she returns to China and she said that because she practised Falun Gong, she was dropped from school, arrested, detained and fined. She was put on a “blacklist” and was prohibited from passing on Falun Gong to others. She said that this had a negative impact and caused deep harm to her and had a bad impact on her parents’ reputations. The Tribunal asked her what harm she fears now, and she said that everyone knew she had been arrested and this has affected her reputation. She said that her parents had to pay a big sum of money to get her out of detention. She said this affected their reputations and their promotions.

The Tribunal put to the applicant that this is the first time she has mentioned being arrested, detained, blacklisted and fined. Her application does not refer to any of these events. The applicant said that she had just remembered it. The Tribunal asked why she had not mentioned it when the Tribunal asked her about arrest and detention earlier. She said it happened when she was at high school. Her classmates reported her activities to a teacher who reported her to the police. The teacher told her to write something “to reflect my behaviour.” The Tribunal put to the applicant that her application does not refer to ever being arrested, detained, or having to pay money for release. The Tribunal put to her that it found it hard to understand why she would not have mentioned this in an application for protection. The applicant responded that she was a minor at the time, so she had no criminal record. The applicant then said that when she prepared her application her mind was not clear, and she did not remember.
The Tribunal asked if she fears harm for any other reason or reasons should she return to China. She said that the only harm she fears is because of her practice of Falun Gong.
The Tribunal referred to the applicant’s previous Tribunal hearing in relation to her student visa. The Tribunal put to her that she attended a hearing on 3 April 2019 and according to the earlier Tribunal’s decision record dated 16 April 2019, she stated that she intends to return to China and open a [business] when she completes her studies. However, in the application for the protection visa made on 16 May 2019, she said she cannot return to China because she fears harm from the Chinese authorities because of her practise of Falun Gong and previous adverse interest. The Tribunal said that this information is relevant because it appears inconsistent and may lead the Tribunal to find that the applicant has not been a witness of truth and that may be the reason or part of the reason that the Tribunal affirms the decision under review. The Tribunal asked the applicant if she wished to respond now or ask for an adjournment to provide a response. The applicant asked to provide a response in writing in two or three weeks, and the Tribunal agreed to adjourn the matter for her to do so.
Following the hearing, the Tribunal wrote to the applicant advising:
At the hearing conducted on 2 July 2025, the Tribunal invited you to comment on information it considers would, subject to your comments, be the reason, or a part of the reason, for affirming the decision under review.
You were informed at the hearing that the Tribunal has not made up its mind about the information.
The particulars of the information put to you were:
·The Tribunal has before it records relating to the hearing before an earlier Tribunal in respect of your application for a student visa. You attended that hearing on 3 April 2019. According to the earlier Tribunal’s decision record dated 16 April 2019, you stated at that hearing that you intend to return to China and open a [business] when you complete your studies. However, in your application for the protection visa made on 16 May 2019, you claimed you cannot return to China because you fear harm from the Chinese authorities because of your practise of Falun Gong and previous adverse interest.
You were advised that this information is relevant because if the evidence you gave on 3 April 2019 that you were planning to return to China is true, it may lead the Tribunal to doubt the truthfulness of your claim that you cannot return to China because of a real fear of harm. This may lead the Tribunal to reject your evidence that you fear harm if you return to China. This would be the reason, or a part of the reason for affirming the decision under review, with the consequence that the Tribunal would find you do not meet the requirements for the grant of a protection visa.
Alternatively, if you did intend to remain in Australia and claim protection, the information before the current Tribunal may lead it to find that you provided false information at the hearing on 3 April 2019 when you said you intended to return to China. This may lead the Tribunal to find that you have not been a witness of truth and to reject the truthfulness and credibility of your evidence given at the hearing of your protection visa application on 2 July 2025. This would be the reason, or a part of the reason for affirming the decision under review, with the consequence that the Tribunal would find you do not meet the requirements for the grant of a protection visa.
You requested additional time to comment on the information and stated you would like to do so in writing. The Tribunal agreed to your request. The Tribunal considers that it is reasonable for you to provide comments or a response in writing by 25 July 2025.
On 22 July 2025, the applicant responded to the above invitation:
My name is [the applicant], and I would like to give my sincere and honest response to the concerns raised during my hearing on 2 July 2025. I requested for time to comment in writing because I am a slow thinker, I get stress easily and my brain cannot function properly. I think you all saw my behaviour during the 2 July hearing, I am timid and anxious, but I have been improving more than last time already, I feel me practicing Falun Gong has helped me that way. I know there was concern I said one thing in April 2019, then apply protection visa in May 2019 with different reason. I understand this can make people confused. But I want explain what really happen in my heart and the actual situation that time.
What I Said in April 2019
At the hearing in April 2019, I said that I intended to return to China and open a [business]. That is what I told the Tribunal at the time, and that was the truth I really plan to go back to China for good. But I said that because I didn't feel confident to speaking the full truth yet, and I also didn't know if I could talk about me practicing Falun Gong because it is not like a popular religion. I didn't know how to say what I was really feeling inside. I was already learning about Falun Gong then, but from the past experience I got from China, I was afraid to speak out.
I was also very scared to say anything about Falun Gong to the tribunal. I worried it would affect my visa or cause t rouble. I thought that if I told the truth, it might be used against me. I had no idea that not saying it then would cause bigger problems now.
At that time, I had already actively practiced Falun Gong in Australia. I had seen people practising meditation and exercises in the park. Slowly I began to attend sessions and practice. But I was not brave enough to talk about it publicly especially not to Tribunal or any government, because I thought if I said I practice Falun Gong, it might cause problems for my visa and maybe my life. Honestly I don't know what is the tribunal think of Falun Gong.
So I thinking at that time maybe not talk about it if not it may make my situation worse since it is not too related to my visa at that time. I was just afraid and confused that whole time. I didn't know that later tribunal would see it as a contradiction. I hope the tribunal can see that it wasn't a lie or that nature, it was because I was fearful.
Why I Applied for Protection
After that student visa refusal, I had to be honest with myself and face the real situation I could not return to China. But at that time I had already started to practice openly, attend group studies, and follow the teachings more closely. I had found something that gave me spiritual peace and personal strength, it gave me more confidence and belief in myself and nature. But then I realised that if I returned to China, I will face punishment and arrest.
A friend of mine from the Falun Gong group in Australia shared what happened to her cousin who was detained in China just for practicing Falun Gong and the punishment she got. I know that China is not approving of Falun Gong and heard stories but when I think that it will happen to me, I think it becomes more real, I couldn't sleep for days. That's why I lodged the protection visa application because I am scared for my life in real.
I Was Not Trying to Play the System
But I understand why it can look like I just changed my story to stay in Australia. But I want to say from the bottom of my heart that is not true. Yes in the beginning I was very young I didn't know what will be the best for me. My mother hopes that I could learn some skill for me to make a living on and hope that I do not live far from them and be close to her. I don't dare to tell parents that I practice Falun Gong in Australia as well as I do not want them to worry about me as they are well aware of Falun Gong situation in China. There is a great burden for me too.
I always do my best in the courses I signed up for, but I know that sometimes my best is not good enough. I am not asking for sympathy. I am simply asking to be judged as what you see of my real life story, someone who was young, scared when arrive in Australia as a young student, and growing into her beliefs that is now my core value system, and who is me now sincerely fears for my life and safety if forced to return to China.
The persecution of Falun Gong in China is not a rumour it is real. I am known in the Falun Gong community in Australia because I have attended many group activities. I also have read the teachings and shared them. I was told that are even some members who may be fake and are spies. I really fear that even if I keep quiet in China, the Chinese government already know my past activities here in Australia.
My Sincere Apology and Hope
Honestly I regret not being stronger and clearer earlier. I regret that my earlier words may have caused confusion or led to doubts. But I cannot change the past. All I can do is tell the truth now. I practice Falun Gong sincerely. I fear persecution in China. And I am sincerely asking for protection because I believe in human rights and fairness.
Please don't see me as someone who changed her story, see me as someone who finally found her voice and is now speaking it, even if it's late.
Thank you for giving me the chance to explain.
The applicant was nervous and quiet at the hearing of the present matter and the Tribunal accepts that she may have been anxious. However, the applicant has claimed to have faced significant adverse interest, including police searches, arrest, and detention, because of her religion but did not raise this during the ten years she has remained in Australia since 2009, or at any time prior to the refusal of the student visa application in 2019. At the hearing of that application in the previous Tribunal she gave evidence that she was intending to return to China to start a business, but only four weeks later she claimed that she cannot return to China because she fears the Chinese authorities.
In her response to the Tribunal, in relation to whether she had told the truth about her intentions at the 2019 hearing, she states “I thought that if I told the truth, it might be used against me. I had no idea that not saying it then would cause bigger problems now.” The Tribunal considers the indication that she did not tell the truth at the previous hearing shows a willingness to say what she believes may get the desired outcome. The Tribunal does note her claim that she is now telling the truth, but there are other aspects of the evidence which give the Tribunal concern about the protection claims.
As discussed above, the applicant did not claim in her protection application that she had been arrested, detained, blacklisted and fined because of practicing Falun Gong. She made this claim for the first time at the hearing on 2 July 2025. When asked why she had not made the claim before, she said that her mind was not clear when she was preparing the application. Absent other considerations such an explanation might be plausible, but the Tribunal has considered this explanation in light of the applicant’s past claims and engagement with the Department and the previous Tribunal. The Tribunal considers it implausible that if the applicant were a dedicated Falun Gong practitioner with real fears about her safety in China, she would wait until after her student visa had been refused at both the delegate and merits review levels before raising this fear. The Tribunal does not accept that she would “forget” to mention (in a protection visa application) that she has been arrested, detained, blacklisted, and fined.
The Tribunal gives weight to her ability to return to and depart China on multiple occasions and does not accept her claims that her parents were subjected to ongoing pressure to bring her to the police station, questioned about her, or subjected to any harm or adverse interest themselves because of her. The Tribunal accepts that she may have had to lodge documents at the police station in China on one occasion at the end of 2009, but notes that she was not required to do so, questioned, interviewed, or subjected to any other official attention when she returned on three further occasions. The Tribunal does not accept that she has been, or will now be, of adverse interest to the Chinese authorities because of any practice of Falun Gong.
The Tribunal is not satisfied that the applicant has been a witness of truth in relation to her practise of, and commitment to, Falun Gong in China. The Tribunal is not satisfied on the evidence before it that she has practised Falun Gong in China or come to adverse attention because of this. The Tribunal accepts that the applicant may have engaged in some study of Falun Gong while in Australia but is not satisfied on the information and evidence before it that the applicant is a committed and genuine follower of Falun Gong, or that she will want or need to practise Falun Gong should she return to China. The Tribunal is not satisfied that she will come to the adverse attention of the Chinese authorities for any real or imputed involvement with Falun Gong at any level in Australia.
Having regard to all the above, the Tribunal finds that the applicant is not a Falun Gong practitioner and does not face a real chance of harm for any reason or reasons arising from the practice of Falun Gong, or from any past or current adverse profile with the Chinese authorities for that reason, now or in the reasonably foreseeable future, should she return to China.
The applicant does not claim to fear harm for any other reason or reasons should she return to China. The information and evidence before the Tribunal does not indicate any other reason or reasons that she may face harm should she return to China.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of harm for any reason, or combination of reasons, now or in the reasonably foreseeable future, should she return to China. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution should she return to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has found above that the applicant does not face a real chance of harm for any reason or combination of reasons, now or in the reasonably foreseeable future, should she return to China. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[3], the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[4] For this reason, the Tribunal finds that the applicant does not face a real risk of harm for any reason or combination of reasons, now or in the reasonably foreseeable future, should she return to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[3] (2013) 210 FCR 505.
[4] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:      2 July 2025
Representative:  None
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.
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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.
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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.
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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.
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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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