2211598 (Refugee)

2211598 (Refugee) [2024] AATA 1022 (22 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Sen Tao (MARN: 1277816)
CASE NUMBER:  2211598
COUNTRY OF REFERENCE:                   China
MEMBER:Sue Zelinka
DATE:22 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 22 January 2024 at 10:22am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – Salvation Army – membership and activities in Australia – full, uniformed member, leadership training course and outreach/evangelising – detailed explanations of beliefs – photographs and supporting statements – not for purpose of creating pretext for fear of persecution – remained as unlawful non-citizen during child’s temporary estrangement – child’s own protection application – country information – local branches allowed only as charity, community development and emergency assistance, with strict non-political policy – relocation or modification of behaviour not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (2A), 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 12 January 2024 to give evidence and present arguments. A witness was also present. 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.
THE RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
CLAIMS AND EVIDENCE
Background
The applicant whose passport shows she is a citizen of China applied for a protection visa on 20 March 2019. On 10 August 2022 the delegate refused to grant the protection visa on the basis that the applicant “does not have a profile that would be of adverse interest to the Chinese authorities”. The delegate was not satisfied the applicant would face a real chance of harm on the basis of her claims about her religious practice.
From the information on her passport and protection visa application, the applicant is a [Age] year-old woman from [Province] who arrived in Australia [in] November 2012 as guardian to her [Child] who came on a student visa. The [Child] has remained in Australia and is pursuing [her/his] own protection visa application. The applicant has a husband and [siblings] still in [Province].
The applicant is literate in Mandarin and completed junior high school. She worked in [Work sector 1] and then in [Work sector 2] until her departure. She lived in only two addresses in [Province] – her family home and then the marital home – and had not travelled until she left China in late 2012.
Introduction to religion
According to the statement submitted with the protection visa application, the applicant contacted a friend shortly after her arrival from China. This friend, [Ms A], was from the applicant’s home town and was already settled in [City]. [Ms A] took the applicant to her church: the local Salvation Army church which also offered free English classes on Sunday morning. The applicant attended the classes and stayed for the church service where people were very friendly and nice to her. This was the first time she had encountered religion.
Six months later, in June 2013, the applicant signed the covenant with the Salvation Army. She also made her [Child] sign, but [s/he] became increasingly estranged from the church and from [her/his] mother. Within a year, [s/he] had left home and severed all contact with the applicant. She claimed that she could not return to China when her visa expired in late 2014 as she did not want to leave her [Child] here alone: she needed to be in Australia in case [s/he] tried to contact her. [She/He] did not re-appear until September 2017 when [s/he] returned to live with [her/his] mother and to attend church with her. During [her/his] absence, she had sought comfort from the Salvation Army.
According to her statement, the applicant continued active participation in the Salvation Army including Sunday worship, bible studies and proselytising. When the applicant submitted her protection visa application in 2019, she also submitted a testimonial from her church attesting to her participation since November 2012. The applicant’s friend [Ms A] also wrote, confirming that they had lived in the same village in China before [Ms A]’s departure for Australia in 2005. [Ms A] stated that she had become a Salvation Army member in 2008 and had actively recruited the applicant after the latter’s arrival. There were also a number of photographs that the applicant said showed her involved with various Salvation Army activities including participating in church services and proselytising with a Chinese tour group at [Venue].
At the Tribunal hearing, the applicant was asked whether, prior to leaving China, she knew that [Ms A] was in the Salvation Army. She said she only knew [Ms A] had become a Christian, with no more detail than that. Nor had [Ms A] told her family anything beyond that. The Tribunal asked the applicant if she herself had told her own family about her religious path and she said she had not. When asked why, she said that evangelising was banned in China and she did not want to put her family in any danger from the authorities.
Recent religious activity
Before the Tribunal hearing, the applicant sent more supporting material including 21 recent photographs with a separate explanatory list of captions. There was also an offer from four senior Salvation Army members to testify on behalf of the applicant. The Tribunal accepted the offer from the first-named of the group of four as she seemed to be the most relevant to the situation: she was a senior member of the actual congregation in which the applicant participated and is member of the church leadership group.
At the Tribunal hearing, the applicant was asked to explain the “covenant” which she signed during the first year of her participation in the Salvation Army. She said there were eleven terms in the covenant, a document a participant must sign to show commitment and a belief in God and Jesus. She was able to explain in some detail the eleven tenets including belief in the scriptures of the old and new testaments, belief in only one true and omnipotent God, belief in the Trinity, belief in the divine and human nature of Jesus, and belief that the first people were free of sin until disobedience changed the picture.
The applicant was asked if her church activities increased after signing the covenant. She said that by signing the covenant, she was permitted to wear the uniform of the Salvation Army and with this came the obligation to tell others about the church. She said that this became part of her daily life: if she was going to the shops, she would take the opportunity to talk to people. She would say hello, and if they responded, she would initiate a conversation which would include religious outreach. She would also do this even if she were not wearing her uniform. She would normally speak to people who looked as if they spoke Chinese as she did not think her English would sustain such a conversation. This evangelising was an integral part of church life – the “brother and sisters” (fellow church members) would ask each other how their evangelising is going and they would have fairly regular meetings, say once a month, to discuss this issue. She also said there are formal classes within the Salvation Army to teach its members how to evangelise. These run for 13 weeks a year and the applicant has participated in, and completed, four. She has also completed the first of two levels of leadership program aimed at training church members how to teach new participants in the church.
The Tribunal asked the applicant if she participated in “phone evangelism” – calling people on the phone rather than face-to-face. She said it was quite a widespread practice during the COVID lockdowns but now she and most others have reverted to face-to-face evangelising.
Return to China
The Tribunal asked if the applicant has told her family about her acceptance into the Salvation Army. She said she had not because her church is evangelistic and this type of religion is not permitted in China. She thinks it may be harmful if her family is aware of their connection to a person involved in this way.
The Tribunal asked her how she would practise if she returned to China. She said she would certainly wish to continue the way she currently practises with its emphasis on evangelism. However, she realises that this is not allowed and fears that in consequence she might be severely harmed, both physically and mentally.
The Tribunal put it to her that the Salvation Army operated two offices in China. The applicant said she knew this but the Salvation Army was only allowed to do emergency relief work and the like. She said that she would of course want to assist in any such work but she also needed to participate in church and religious activities.
The witness at the hearing
The applicant’s witness was a senior member of the same local church the applicant attended and a member of the Church Leadership Team. She confirmed that the applicant had been attending the church since the end of 2012. The witness began by describing the local branch of the Salvation Army church she and the applicant belong to. She noted that it had a very diverse, multicultural congregation – not only Chinese like the applicant, but African, [Country] and many others. It was so much broader than an ordinary English-speaking congregation such as may be found in other Australian churches. Chinese speakers constituted about one-third of the congregation and could follow the services by taking the headphones provided at the church and listening to the live interpretation. However, in the witness’s experience, the Chinese attendees enjoyed being part of a wider congregation and did not want to attend an exclusively Chinese church.
The witness testified to the applicant’s diligence in church attendance and activities. She personally saw the applicant every Sunday morning and at other times; for example, at the Chinese language service on Friday evenings, at fund-raising activities and at various training courses. The witness confirmed that the photographs submitted by the applicant were genuine depictions of her engagement in different church activities, including being presented with a graduation certificate from a fairly recent leadership course. The witness also mentioned that there is a WeChat bible study group in Chinese every evening and the witness, as a church leader, often looks in on it briefly. She said that almost every evening she can see a comment from the applicant on the site showing her ongoing and active involvement.
The witness said that given the strength of the Chinese presence in various Salvation Army churches, there is a Chinese leadership group covering not only this local church but others which also have a sizeable Chinese congregation. Each participating church has a Chinese leadership team and the applicant is on this team at her own church. The witness said that this showed that the applicant took a pastoral role. The witness said that Chinese people who come to the Salvation Army most likely come from an atheist background – they have had no introduction to religion. They have to do some serious study to understand the bible and religious and spiritual concepts, and the applicant has been diligent in this regard. The Salvation Army runs bible study classes for such groups.
The Salvation Army through the Chinese leadership group also runs a series of classes called “Evangelism Explosion” in the Chinese language for members of the applicant’s local church and others with a sizeable Chinese congregation. The witness described this 14-week course as being very intense. The applicant has completed this course and the witness said that the applicant does indeed evangelise, talking to people in the park, and especially to older people. If they are not Chinese speakers, she will use the “Google Translate” app to assist her. The witness said that evangelising was such an important part of the applicant’s activities that she would find it very difficult if was prevented from doing it – for example, if she returned to China.
The witness testified that the Salvation Army is an outward-looking church. That is the way it was set up. One of its mottoes is “Love Compels”: the church members must do things for other people out of love. The “S” insignia on their uniform epaulettes stands for Service and is a constant reminder that they need to serve others.
The Tribunal asked the witness to explain “the covenant” that the applicant had mentioned in her testimony. The witness said that this was the pact entered into by a person joining the church. There are ten formal classes which a would-be member must attend before signing the covenant. Participants are then given the choice of becoming full members of the Salvation Army or adherents, which requires less commitment. The applicant is a full member and is entitled to wear the unform. Indeed, the applicant attended the hearing in uniform, as did the witness.
The Tribunal put it to the witness that some people enjoy organised religion for the social aspects and asked whether the witness had views on whether the applicant mainly liked the social network and activities, or whether she had a real understanding of the spiritual side of the church. The witness referred to the studies – often intensive studies – that the applicant had undertaken to expand and deepen her knowledge of the scriptures; the pastoral care she showed towards other members of the congregation; and her keenness to evangelise. She felt the applicant was a committed member of the Salvation Army.
The witness ended by saying she had been reflecting at a recent social gathering for church members on how well the applicant fitted into the church ethos – being out-going, liking to reach out to people, evangelising, wanting to help. The witness said that she was conscious that the applicant would not be able to do these sorts of things if she was in China. She noted that the applicant would be able to attend a registered Protestant church in China – the Salvation Army had no proscription against its members going to another protestant church if necessary. However, all of the things that made the Salvation Army special, which the applicant had studied and learned and actively applied, would be denied her.
The Tribunal asked if the witness knew about the situation for the Salvation Army in China. She replied that the Salvation Army was established in China many years ago by British missionaries and may have even run a training college there. However, the church was disbanded after Mao Tse Tung came to power. She said the Salvation Army was currently operating in Hong Kong where it is recognised as a charitable organisation. Any pictures shown of people in China wearing Salvation Army uniform are church members from Hong Kong sent there on placement for a certain period of time. The witness said she had looked at the latest annual report from the Hong Kong office showing that it sends funds to China, channelled through local Chinese organisations involved in local social work or educational projects such as resources for victims of domestic violence. The Salvation Army offices in China may also participate in emergency assistance if there are floods, earthquakes etc. Given the structures and conditions in place, she does not think that the applicant would be able to volunteer to assist: she noted that very specific skills are needed for emergency disaster work, not simply a desire to help. The witness also said that the Salvation Army maintains a very strict non-political policy in respect of China and does not publish anything critical of the Chinese authorities on its website. However, one of her colleagues may have better knowledge of the situation within China and he would submit written testimony.
The witness who made a written submission
Another member of the leadership team from the local branch of the Salvation Army to which the applicant and the witness belong submitted a written testimony to the Tribunal a few days after the hearing. He noted that he had belonged to this church for over 45 years and could confirm that he has known the applicant from this church context for a decade. He confirmed what the witness had stated about the applicant’s involvement in the church “including street ministry” (that is, evangelising).

In respect of China, this witness said he had worked in the People’s Republic of China on water supply projects including the two provinces, Yunnan and Shandong, in which the Salvation Army has offices. He was there most recently from December 2019 to January 2020. He states that he has “personally observed a progressive intensifying of religious persecution for evangelistic Christians, including forced removal of crosses …[and] introduction of a PRC approved ‘bible’ “ and added that “under government pressure, the digital bible has been removed from the Apple app store”. He stated that he has “personal knowledge that the Salvation Army is only permitted to operate in education, community development and emergency relief. It is not permitted to carry out any evangelistic activity, thus our mission of openly sharing the love of Jesus by witnessing, caring for people, creating faith pathways … is totally banned in China”.
The witness concludes by noting that the “type of Christianity [the applicant] has embraced in Australia is evangelistic, not a passive, diluted, government-approved pseudo religion…” and hence “If [the applicant] is forced to return, her religious freedom will be severely compromised”. This is because “She knows an evangelistic Christian faith, whose mission is to preach the gospel to all people without discrimination, to show compassion to all, and to save souls through active witnessing”.
External information
The Salvation Army website ( notes that the covenant of the Salvation Army is also referred to as The Articles of War or a Soldier’s Covenant. They are the eleven articles of faith of the Salvation Army and the eleven promises made when becoming a “soldier” or member of that church. The member makes these promises and then commits to a lifestyle which will enable that covenant to be fulfilled. This includes upholding Christian integrity in every area of life, upholding the sanctity of marriage, abstaining from alcohol and tobacco and gambling, sharing the good news of Jesus Christ, endeavouring to win others to him, being actively involved in the life, work, worship and witness of the corps, and showing the spirit of salvationism whether in times of popularity or persecution.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The applicant claims she has become an active member of the Salvation Army and will not be able to pursue her religion and will face serious harm if she is returned to China. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
There are no claims, nor does the evidence suggest, that the applicant had any fear of persecution when she lived in China. She departed China lawfully and without difficulty as the guardian of her [Child] who was coming to Australia to study. The claims which she now presents are sur place: that is, they have arisen since her arrival in Australia.
A person may become a refugee sur place as a result of voluntarily participating in activities which would give rise to a well-founded fear of persecution in his or her country of origin. In some cases, these actions may be undertaken for the purpose of creating a pretext for invoking fear of persecution. The Tribunal has considered the facts of the applicant’s conversion to evangelical Christianity – specifically, the Salvation Army – and is satisfied that she did not take this course of action for the purpose of creating a pretext for invoking a fear of persecution.
The Tribunal accepts that on arrival, the applicant stayed with a woman whom she had known in China. It accepts that, unbeknownst to the applicant, this woman had become a member of the Salvation Army church (she had been in Australia for several years). The Tribunal finds it plausible and accepts that the applicant went to the free English classes being offered by the church on Sunday mornings and stayed on with her friend for the service and socialising afterwards. The witness has testified that this particular local church has a good number of Chinese congregants. The Tribunal accepts that the applicant found the church experience enjoyable and that she then attended a course of lessons and signed the covenant – that is, became a member of the church. The Tribunal also found persuasive the applicant’s evidence that her [Child] “went off the rails” and in 2014 left home, severing contact with her for three years. It was [her/his] ongoing absence that made the otherwise law-abiding applicant ignore the expiry of her visa in late 2014: she felt she needed to stay in case [s/he] turned up. During these anxious years, it is plausible (and the Tribunal accepts) that the applicant found great comfort and support in the church, binding her more tightly to it.
The Tribunal accepts the testimony of the applicant, her witness, and the photographs that she has become deeply entrenched in her religious life, undertaking courses of study and more recently leadership, participating in church services and activities. It accepts the testimony from the two witnesses – the one who attended and the one who wrote – that they each regard her “as an evangelistic and deeply caring person” (as the second witness put it). Given this, the Tribunal accepts that the applicant will continue to evangelise, even if returned to China. She has been schooled fairly intensively in an evangelical church; she has had no experience of any other sort of church. The only way she knows how to practise religion is the evangelical and outward-reaching way that she has been taught and has practised over the last 12 years.
The Tribunal has to consider what will happen to the applicant if she goes back to China and continues her religious practise. There is little or no independent information about any adverse things befalling Salvation Army members in China. The Salvation Army has a State-sanctioned presence in China as a charity and aid organisation in a non-religious capacity: this information comes from both witnesses and from the official Salvation Army website. The Salvation Army members in uniform are staff on placement from Hong Kong. They are based in two offices in China, one in Yunnan and one in Shandong (both of which, the Tribunal notes, are very long distances away from the applicant’s home in [Province]). These Salvation Army officers are scrupulous in observing the conditions placed upon them by the Chinese Government and remain strictly non-political. Hence no adverse comments about the Chinese Government, or about the practice of religion in China, appear on the Salvation Army website nor in its publications.
Given the way the Salvation Army is set up in China, and the conditions under which it is allowed to be there, the Tribunal is satisfied that the applicant could not join that group in China, even if she could relocate from [Province] to one of the two cities in which the Salvation Army has an office. In any case, the two Salvation Army offices cannot offer the applicant the religious services and activities that she feels are necessary for her faith.
From the applicant’s testimony, supported by the testimony of the two witnesses, the Tribunal is satisfied that if the applicant returned to [Province], she would start to evangelise in her community, talking to people sitting in parks, as she does in Australia. She may attend church services at a State-registered protestant church, but again, the Tribunal is satisfied that she would start evangelising among the congregation. There is a real chance that such behaviour would, over time, be noticed and would come to the attention of the authorities.
The Tribunal has regard to the very recent independent evidence provided by the Country of Origin Information Services Section of the Department of Home Affairs on Christians in China (Effective from 27 October 2023). That report notes that
Religion is generally considered a politically sensitive topic in China, with accurate information limited by the lack of reliable data collection, and the willingness of human sources to report openly on their experiences. Specific incidents involving harm or repression are difficult to verify … (page 9).
The same report relies on information from the US Department of State that
Authorities continued to arrest and otherwise detain leaders and members of religious groups, often those connected with groups not registered with the state-sanctioned religious associations. Authorities reportedly used vague or insubstantial charges, sometimes in connection with religious activity, to convict and sentence leaders and members of religious groups to years in prison. (2022 Report on International Religious Freedom: China, 15 May 2023 at p.16).
The Tribunal also has regard to the DFAT Country Information Report:
Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly. (DFAT Country Information Report PRC 22 Dec 2021 at 3.26).
FINDINGS
The Tribunal is satisfied that the applicant’s evangelising would be regarded as a transgression of the regulations against proselytising. Although the evidence cited above makes it difficult to establish exactly what punishment such a transgression would incur, the US Department of State indicates that it could be severe. The group with which she Is connected – the Salvation Army – is NOT a state-sanctioned religious association: it is only a state-sanctioned charity with many conditions regarding its operation. The Tribunal is satisfied that the chance that severe harm may befall the applicant for reason of her religious practice is more than a remote chance.
For the applicant to cease evangelising in order to avoid the adverse attention of the authorities and to avoid persecution would require her to modify her behaviour in a way that the Tribunal finds to be unreasonable. The modifications would require the applicant to conceal her true religious beliefs and cease to be involved in the practice of her faith in the way she has been taught to practise and the way that she believes her faith must be practised.
The Tribunal finds that the applicant is a committed member of the Salvation Army and will continue to practise her religion in the future. The Salvation Army is an outward-looking church and evangelising is an important aspect of its belief system. Evangelising is prohibited in China. There is a real chance that the applicant would come to the adverse attention of the authorities for evangelising. There is a real chance that she could, in consequence, suffer serious harm. The essential reason for this harm is religion.
The Tribunal finds that there is a real chance that, if she returned to China, serious harm could befall the applicant in the reasonably foreseeable future for reason of her religion. The Tribunal is satisfied that the real chance relates to all areas of the receiving country. The Tribunal is satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1)(a). She is a refugee in accordance with s 5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act..
Sue Zelinka
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1022

22 January 2024

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