2214790 (Refugee)

2214790 (Refugee) [2024] AATA 1366 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Songbai George Wang (MARN: 0745122)
CASE NUMBER:  2214790
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:25 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 25 January 2024 at 4:15pm
CATCHWORDS
REFUGEE – Protection Visa – China – religion – an underground Catholic – victim of domestic violence from her ex-husband – applicant’s practise of evangelising may place her at greater risk – applicant has a well-founded fear of persecution for reason of her religion –State protection is not available to the applicant – relocation is not reasonable – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILEA (1994) 124 ALR 265
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 July 2017 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 citizen of China, applied for the visa on 12 May 2017.
In her protection visa application, the applicant claimed protection on the basis of both her fear of persecution as an underground Catholic and on the basis of domestic violence.
The applicant did not attend an interview with the Department. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act and is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act, and therefore is not a person in respect of whom Australia has complementary protection obligations.
On 22 July 2021, the Tribunal (differently constituted) affirmed the decision not to grant the applicant a protection visa, following a telephone hearing held on 15 July 2021, during the COVID-19 pandemic.
The Tribunal’s (differently constituted) decision was set aside by the Federal Circuit Court by consent on 3 August 2022, because the Department conceded that the decision of the Tribunal (differently constituted) dated 23 October 2019 was affected by jurisdictional error on the basis that the Tribunal’s (differently constituted) decision failed to consider the applicant’s domestic violence claim and make findings in respect of this claim, and that had this claim been considered, it could realistically have resulted in a different decision. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mrs A]. 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. Her representative attended the hearing.
CRITERIA FOR A 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.
In addition to her application for review, the applicant provided the Tribunal with a copy of the delegate’s decision and notice of the decision from the Department, together with the following documents on the file for Case File No. 1718617:
a.A supplementary statement dated 8 July 2021;
b.Baptism certificate issued by [Church 1], issued on 28 June 2021, together with English translation;
c.Photographs of the applicant attending church and church activities;
d.Letter from Dr [B], [a medical centre], dated 7 July 2021;
e.Statement of [Mrs A], dated 4 July 2021, together with English translation and copy of her Chinese passport;
f.Letter of support from [Mr C], [Organisation 1], dated 2 July 2021;
g.Letter of support from [name], President of the [Organisation 1], dated 2 July 2021;
h.Statement of [Mr D], dated 27 June 2021; and
i.Video of the applicant worshipping at a Catholic shrine.
The file for Case File No. 2214790 contains the following documents provided by the applicant, in addition to documents previously provided:
a.Completed pre-hearing information form;
b.Photographs of the applicant engaged in religious activities;
c.Letter of support from [Mr D], dated 18 September 2023, together with his Australian drivers licence;
d.Letter of support from [Mr C], [Organisation 1], dated 2 September 2023;
e.Letter of support from [name], President of the [Organisation 1], dated 2 September 2023; and
f.Letters of support from [Mr E], [Mr F] and [Mrs A], all dated November 2023, together with English translations.
The applicant provided a response to the hearing invitation. On 22 December 2023, the applicant provided a submission from her representative, together with a certificate of membership of the [Organisation 1].
On 15 January 2024 the applicant provided a statement from her brother who lives in Australia, together with an English translation.
The Tribunal has also had regard to the documents on the Department file, which include the protection visa application and a copy of the applicant’s Chinese passport.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
The applicant provided copies of her Chinese passport to the Department and to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who she claims to be, that she is a national of China, which is also her receiving country.
The applicant claimed at the hearing that she did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The applicant made the following claims in her protection visa application:
a.Her family were members of the underground Catholic church and suffered persecution from the Chinese government for their beliefs and for attending church activities;
b.Her parents believed in the underground church when she was a child and she was influenced by their beliefs;
c.A priest baptised her;
d.After her parents passed away, she still believes in the underground Catholic Church and took part in their activities;
e.Fuqing City government began to crack down on underground Catholic Church activities. She was ‘not at home’, so she ‘survived’. Other Catholics were caught by the police;
f.She was so scared that she had to flee to Australia; and
g.If she returns to China, she will be persecuted by the police, will be imprisoned and may die.
No further information was provided by the applicant in support of her claims.
Departmental interview and delegate’s decision
The applicant provided a copy of the delegate’s decision with her application for review. The delegate’s decision records that the applicant was invited to attend a protection visa interview but failed to attend.
The delegate was not satisfied that the applicant is a refugee as defined by s.5H(1) of the Act, and therefore was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. The delegate also considered that there is no real risk of the applicant facing significant harm, as defined by s.36(2A) of the Act, if she returns to China in the foreseeable future, and therefore is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
2021 statement by the applicant
On 8 July 2021 the applicant provided the Tribunal with a written statement which set out her concerns about her written application having been made with the assistance of any migration agency where persons had been indicted by the Australian Federal Police for alleged misconduct.
The applicant also stated as follows:
a.She grew up in a family with two elder brothers, two elder sisters and one younger brother;
b.The economic pressures experienced by her family meant that she did not receive an education and she is illiterate;
c.Her ex-husband was an irresponsible and irritable man, who inflicted domestic violence on her over a long period of time. She had an introverted personality and is not educated, so when this violence was inflicted, she would burst into tears and wanted to kill herself. She eventually ended her marriage. She came to Australia partly to avoid her ex-husband’s intimidation, threats and harassment;
d.She was raised in a Catholic family. She turned to the Church to heal her trauma and broken heart. She attended a Roman Catholic house church and listened to sermons and sang hymns. God saved her and Christian faith gave her new life;
e.Although she cannot read and write, she can understand a priest’s sermons. She also volunteers for the church with activities such as cooking, washing dishes, cleaning and distributing meals. She believes these jobs have been allocated to her by Jesus and she wishes to dedicate herself to church fellowship and service;
f.Her devotion to faith is inspired by the Holy Spirit. She can survive without her family, but cannot survive without the church. Since her divorce, she has integrated into her church family and is treating it as a second life;
g.The Pope is the leader of her church, not government-appointed leaders. Her church is not recognised by the Chinese government, which is atheist. She sets out reasons for not joining the Patriotic Church. If people from her church are caught by the police, they will be punished, imprisoned and persecuted. She was lucky not to be caught herself, but she is terrified because of things that happened to her parents and many of her relatives. Her church has sometimes had to go into hiding and stop meeting to avoid government scrutiny; and
h.In coming to Australia she had to trust others to handle the formalities as she is illiterate and does not know about entry documents.
Tribunal hearing in July 2021
The applicant gave evidence before the Tribunal (differently constituted) by telephone hearing on 15 July 2021. The Tribunal’s (differently constituted) decision raises a number of concerns with the applicant’s evidence and claims, including:
a.The timing of her baptism. The applicant gave evidence that she was introduced to the Catholic Church by her parents and that her mother died when the applicant was only [age] years old, however she provided a baptism certificate from the [Church 1], Fuzhou Parish, which indicates she was baptised in August 1992;
b.She claimed in her written statement to the Tribunal that she became drawn to the Catholic religion through a ‘house church’, however her baptism certificate was issued by the [Church 1] of the Fuzhou Archdiocese, which the Tribunal found is not a house church, but a widely-known Marian shrine built in 1993-2001, which is visible miles away and attracts pilgrims from all over Fujian province. The applicant initially agreed that the [Church 1] is a state-sanctioned church, but later denied this and claimed she had not heard the Tribunal (differently constituted) correctly;
c.The applicant gave evidence that a priest who visited her neighbourhood had been arrested around the end of 2015. She gave evidence that the priest was the only arrest she was aware of, but later changed her evidence to indicate that her cousin had also been arrested because a service had been held in his home, however he had later been bailed; and
d.The applicant gave potentially inconsistent evidence at the hearing regarding how she located and began attending a Catholic church in [Suburb 1] within a week of her arrival in Australia. The applicant gave general answers and then variously stated that her brother had directed her to the church, that a person from her hometown guided her there, and that someone at the [Suburb 1] train station, whom she was able to identify as being from Fujian by the language he used, gave her directions to the church. The applicant could not provide the name of the church and claimed this was because she is illiterate.
The Tribunal (differently constituted) found the applicant gave inconsistent evidence regarding the inception of her faith in China, her introduction to the Church in China, her baptism in China and her family circumstances at the time of her baptism, the kind of church she attended and her account of the arrest and detention of members of her church community in China. The Tribunal (differently constituted) found the applicant was an unreliable witness and did not accept that she was an underground Catholic in China, and that she belonged to a state-sanctioned church. The Tribunal did not accept that the applicant’s house church had been raided in 2015 or that she would be persecuted on the basis of her faith upon return to China. The Tribunal also found that the applicant was not claiming that she had been a member of a state-authorised church in China but had evolved into a believer of a more independent Catholic Church linked to the Vatican while in Australia. The Tribunal also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk the applicant would suffer significant harm.
Submission from the applicant’s agent
On 22 December 2023 the applicant provided a submission from her agent, which addressed concerns raised by the Tribunal (differently constituted) in its 2021 decision. This submission included the following information and clarifications:
a.The applicant claims that she was [age] when her mother died and [age] when her father died. Her brothers and sisters told her that her parents were persecuted for their religious beliefs. As a result of her young age, her siblings did not reveal details of the persecution to her. From her own impression, her parents were often arrested and were insulted publicly in street processions;
b.The applicant claims she was married twice. The first time was when she was [age] and ended in June 2001. Her second marriage began in 2008 and ended in December 2013;
c.The applicant claims that she attended a house church in China, which had 20 to 30 participants. The church’s activities were flexible and it did not have a fixed address and were organised in a home;
d.Since 1992 she attended Sunday services at [a] Congregation Place in [Village 1] Village, and attended prayers or house meetings every evening;
e.She was baptised in August 1992 at [Village 1] Church, [a] Parish, Fuqing City, for which she has provided a baptism certificate;
f.She was also baptised when she was [age] years old by laypersons within her church as her church was being persecuted at the time. This involved the pouring of water and was not registered as a baptism. She did not receive baptism from a priest with holy oil until 1992;
g.The activities of her house church had to be kept hidden to avoid being reported to the police. Her house church priest, [Father G], was arrested in 2016 at a temporary meeting place; and
h.After arriving in Australia, she started attending [Church 2] in May 2017. She believes she did not answer questions at the 2021 hearing well because of her educational background and memory and her difficulty in expressing herself.
Evidence at the 2024 hearing regarding preparation and contents of the application

At the hearing held on 16 January 2024, the applicant gave evidence that she received assistance from a migration agent (not her current representative) in making her protection visa application. She stated that she told the migration agent that she is Catholic and gave basic information, such as that her parents have passed away, but she did not otherwise tell the agent about her claims. She stated that she is not sure what the agent wrote in the visa application and the information was not read back to her. She stated that she has not since read the application form, and at several points in the hearing, indicated that she is illiterate.
The Tribunal also notes that in her statement provided to the Tribunal in July 2022, the applicant also stated that she was not aware of what the agent wrote in her visa application, and that she has concerns given the person who was in charge of the agency has been indicted by Australian Federal Police because of misconduct.
Evidence regarding the applicant’s background and travel
The applicant confirmed that she is a citizen of China and has not travelled to any countries other than Australia. She confirmed that she departed China by plane from [a named] Airport, using her Chinese passport. She confirmed that she arrived in Australia on [date] May 2017. The applicant told the Tribunal that she came to Australia because she was persecuted in China because of her religious beliefs and because her ex-husband would intimidate her when he saw her and threaten to beat her.
The applicant gave evidence that she was born in [Village 1], [a] Town, Fuqing City, Fujian Province, and then moved to [Village 2] Village in [the same] Town when she married. She stated that she did not live elsewhere, although later she gave evidence that she lived intermittently in [Region 1] during her second marriage.
The applicant gave evidence that her mother died when the applicant was [age], and her father died when she was [age]. She was subsequently raised by her older sister and brother. She is one of six siblings and has two older sisters, two older brothers and one younger brother. Her youngest brother is in [a country]. One of her older brothers lives in Sydney. Her remaining two brothers and sisters all live in Fuqing City, with two of them living in [Town]. Of her siblings in Fuqing City, her brother is a Christian and her two sisters are Catholics. She confirmed that both of her sisters go to church when they can.
The applicant gave evidence that she has been married twice. Some of her evidence with respect to her marriages was confused, but I accept that this was the result of the applicant’s illiteracy and her confusion in dates, rather than the result of any deliberate evasiveness. She gave evidence that she first married when she was [age], which would be in about 1990. She divorced in 2001. Her first husband was from [Village 2] Village. She was married a second time in 2008 to a man from [Region 1] and divorced him in 2013. She stated that while in her second marriage, she sometimes stayed in [Region 1] for periods of two to three months, but then always returned to [Town] and only lived in [Region 1] intermittently.
The applicant confirmed that she has two children, born in [year] and [year], whom she had with her first husband. Her oldest child lives abroad. She stated she could not remember the name of the country as it is hard to pronounce, but she believes it may be in Africa. Her second child is married and lives in [Village 2] village.
The applicant told the Tribunal that she has never attended school. She worked in Shenzen for around six or seven years just prior to coming to Australia, for a [company]. She stated that she did not otherwise work in China as she was raising her children. She gave evidence that she currently works in a [factory] in Australia.
Applicant’s claims for protection
The applicant confirmed that she has two grounds on which she is claiming protection, namely that she was an underground Catholic in China and came to Australia to avoid religious persecution and to practise her faith freely, and secondly, because she was the victim of domestic violence from her ex-husband.
When asked whether the applicant has any other grounds on which she is claiming protection, she mentioned that her older brother who lives with her in Australia has recently been diagnosed with cancer and is undergoing treatment and needs her to remain in Australia to care for him. The Tribunal noted that this is not a ground on which the applicant can claim protection, as although her concerns about her brother’s health are understandable, her brother is an Australian citizen and his diagnosis of cancer is not a reason why she would face harm on return to China. The applicant indicated that she understood.
Evidence of claims regarding domestic violence
The applicant gave evidence that in China she was the victim of domestic violence perpetrated by her first husband, who was from [Village 2] Village. She stated that she experienced numerous episodes of physical violence, including beatings, which occurred for the first time when the applicant’s daughter was [age] years old. She stated that the violence occurred often. The applicant was emotional in giving her evidence, but requested that she continue to give her evidence rather than take a break. She indicated that she told others close to her about the violence as she sometimes had physical evidence of the violence, such as bruised eyes, and avoided going out in public.
The applicant gave evidence that even though she divorced her first husband in 2001, the last time she was physically assaulted by him was in 2015. She recounted how her ex-husband’s mother was close to dying and asked to see the applicant as she wished to settle some things before she died as she felt indebted to the applicant. The applicant gave evidence that when she saw her former mother-in-law was close to death, she asked her whether she wished to accept Jesus as her saviour and to have her soul saved. The Tribunal notes that the applicant’s evidence in regards to what happened was not always clear and the applicant’s explanation contained some gaps, however, the Tribunal is satisfied that these gaps were resolved following further questioning. For instance, the applicant stated that she ‘baptised’ her former mother-in-law. When asked on what authority she was able to baptise someone, she apologised and explained that she has no power to perform baptisms herself. She explained that she asked another Catholic practitioner to invite a priest to come to the home. The applicant was told that she would need to ensure the safety of the priest, as people around her knew that her ex-husband was prone to being ‘irritable’. She stated that the priest attended and baptised her former mother-in-law. The applicant indicated that the ‘procedure’ took no more than five minutes, after which the priest left. When her ex-husband saw what had happened, he entered the home and beat the applicant.
The applicant gave evidence that she did not seek medical treatment after her beatings. She also gave evidence that she did not seek police assistance on any occasion. This is because she thought the police would consider it to be a domestic issue. She claimed that even if she was beaten to death, the authorities would not come. She stated that she now considers she was foolish and that she didn’t know what to do.
The applicant gave evidence that she fears she will be threatened and physically abused by her ex-husband if she returns to China as he continues to live in the same village as her. She claims that her ex-husband has threatened her that he will beat her anytime that he sees her. When the Tribunal put to her whether she may be able to relocate to another part of China, such as when she lived intermittently in [Region 1] and worked in Shenzen, the applicant responded that her ex-husband may be able to find her. She stated that she is not sure how he would be capable of finding her, but recounted an occasion when he turned up at the ground floor of the place she was staying in Shenzen. The applicant confirmed that her ex-husband is the father of her two children, but stated that he is ‘not really’ in contact with their daughter, who also continues to live in [Village 2] Village.
The applicant gave evidence that the threats and intimidation from her first husband continued during her second marriage. This included telling her things such as, ‘Don’t let me see you.’ The applicant also gave evidence that whenever she saw her ex-husband in public, she would avoid him. When asked why she would continue to be of interest to her ex-husband despite having divorced him over 20 years ago, the applicant explained that he holds anger towards her for when she arranged to have his mother baptised. She stated that her ex-husband would not let go of what happened and continued to threaten her because of it. She also claimed that if she is beaten by her ex-husband, she is not in a position to report the matter to the police, as her ex-husband has threatened to tell the authorities about her arranging the baptism. She claims that the police will not assist her because of her religious practise.
Claims regarding Catholicism
The applicant gave evidence that she was raised as a Catholic from birth by her parents. She stated that she has received baptisms on two occasions, as when she was a child, the bishop, priests and nuns in her area were arrested, which resulted in the entire church community being paralysed. When she was [age], some practitioners from her church performed a simple baptism ceremony by pouring water on her, however, this was not a complete baptism, which was required to be performed by a priest and involved the use of an ointment or oil. She claimed that she was officially baptised by a priest with oil when she was [age] in her hometown, [Village 1] Village. When asked about the venue of her baptism at the age of [age], the applicant stated that it was a place built with donations from practitioners. She stated that it is a small structure and is given the name [name]. The venue is used for baptisms and Mass when the situation with the authorities is not strict.
When asked if there are other Catholic churches in [Town], she stated that there is a Christian church, however it is a patriotic church. The Tribunal questioned the applicant as to whether she had heard of or attended the [Church 3] in [Village] near Fuzhou. The applicant at first claimed not to have heard of this church and claimed that there is only one other church in [town], which is a patriotic church. When further information was provided about the church near Fuzhou, the applicant stated that she has heard about it but never been there. She stated that the services she attended in China were always held in [Village 1] Village and services were held in different locations. The applicant’s representative submitted that the [Church 3] is in a different town, also by the name of [name] Town, and is in Fuzhou rather than Fuqing City.
The applicant gave evidence that she has not read the Bible as she is illiterate. She stated that she knows many stories about Jesus that are in the Bible, but expressed confusion about picking one to explain to the Tribunal. The applicant was however able to give a simple explanation for Easter, noting in a matter-of-fact manner that it relates to Jesus’ resurrection.
The Tribunal put to the applicant that she earlier in the hearing gave evidence that her sisters attend a church in [Town]. The applicant stated that they cannot attend the church safely, as the patriotic church does not allow their church to be administered by the Roman Catholic Church. When asked whether anything happened to her in China as a result of the practise of her religion, she stated yes, but then did not recount any specific incidents where she experienced harm herself. She instead stated that she was in fear because people in her religious community who attended meetings were imprisoned. When asked who was arrested, she stated a priest by the name of [Father G], as well as a cousin of hers, who was not that close to her. She stated that [Father G] was a priest in [Town], although he did not preach at [a place]. He was arrested for holding Mass. She stated that her parents were also persecuted because of their faith, but she was too young to know the details of what happened to them. She stated that when she was [age], her father was caught practising his faith and was forced to parade through the streets because of what he did. She was however unable to recount further details, but stated that this event left fear in her. She stated that she believes her father was arrested because the authorities did not allow people to believe in the Roman Catholic Church.
The applicant gave evidence that she currently worships at [Church 2] in [Suburb 1]. When asked why she was unable to remember the name of the church at the 2021 hearing, the applicant stated that she is illiterate. She stated that she attends church weekly on Sundays and sometimes attends on Saturdays. She first attended the church in May 2017. When asked who first introduced her to this church, she stated that she asked her brother whether he knew any Catholics, and he directed her to a fellow townsman who is known by the name of ‘[name]’. She stated that this man took her to the church. She stated that at the last Tribunal hearing she had become confused in her evidence. She stated that the first time she attended the church, [he] drove her there. The second time she went there on her own by train, but got lost when she arrived at the station. She found someone who she recognised as a fellow townsperson, who then accompanied her to the church. She claimed she met [Mrs A] after the church service when she went up to her to ask where she could get rosary beads like the ones that Ms [A] was wearing. She stated that the following week, Ms [A] gave her a set of rosary beads.
The applicant gave evidence that besides attending Mass, her practise of Catholicism includes evangelising when she talks to friends of hers. She stated that she tells her friends about the wonders of Catholicism. The Tribunal put to the applicant that traditionally, the Catholic Church has not encouraged ordinary parishioners to evangelise, and that such activities are conducted by trained clergy, and at times ordinary parishioners have been discouraged by Church authorities from undertaking such activities. The applicant responded that evangelising is a mission from God and is something she should do as a Catholic, and it does not matter what position you hold within the Church.
The Tribunal also discussed with the applicant the photographs and a video which she provided of her participating in Catholic gatherings and worship. The applicant gave evidence of processions which she participated in, which she described as Rosary Pilgrimages. She stated that participating in such pilgrimages is an important part of her faith as it shows her worship and respect for the Virgin Mary. She stated that such processions are not allowed in China.
The applicant stated that she is unsure what will happen to her on the basis of her religion if she were to return to China, but stated she believes her life will be at risk. She stated that she would be unlikely to pray in the street, as she has been able to do in Australia, because it would bring her into direct danger with the authorities, but she would tell people about the religious freedom which is available in Australia.
Evidence of [Mrs A]
[Mrs A] gave evidence that she first met the applicant in May 2017 while she was cooking a lunch at [Church 2] . The applicant approached her and asked if she knew where she could buy some rosary beads like the ones that [Mrs A] was wearing. [Mrs A] told her that they did not have any for sale, but she had some at home, and she told the applicant to come to the church the following week. [Mrs A] gave her a set of rosary beads the following week and they became friends.
[Mrs A] gave evidence of the applicant’s proactive approach in helping at the church, including helping in the kitchen. [Mrs A] also gave evidence of how she herself evangelises, such as how she visits people whom she thinks need some assistance, and how she invites them to attend her church and teaches people how to say the Rosary.
Country information
The Tribunal discussed the country information with the applicant from the most recent DFAT report for China, including the following information about Catholics:[1]
[1] DFAT Country Information Report, People’s Republic of China, 22 December 2021.
Catholics
3.36     The Chinese Catholic Patriotic Association (CCPA) represents the official Chinese Catholic Church. Globally, matters of Catholic doctrine, ecclesiastical law and the appointment of leaders (bishops) are usually controlled by the Catholic hierarchy, headquartered in the Vatican. The CCPA does not recognise the authority of the Vatican. In the past, the Vatican has had some input into the selection of bishops but a number of Vatican-approved bishops also operate ‘underground’, separate from the CCPA. For some Chinese Catholics, allegiance to the Vatican Catholic Church hierarchy is an important part of faith because of their belief in a succession of authority that can be traced back to St Peter, a contemporary of Jesus. For those Catholics, Party-appointed priests and bishops are unable to validly confer sacraments that are central to their beliefs. On this basis they refuse to participate in religious activities associated with the CCPA.
3.37     In 2018, the Vatican and Beijing signed an agreement that would regularise the status of some Chinese-appointed bishops so they would be viewed as valid by the Vatican. In return, those ‘underground’ Catholic churches would join the CCPA. Most of the details of the deal are not known. The deal was extended in October 2020 for a further two years, allowing for more bishops to be recognised.
3.38     In spite of the deal, reports of a crackdown on Catholics as part of a wider campaign to sinicise religion continue. Underground priests who were demoted from the position of bishop as part of the deal are pressured to join the CCPA, according to various media reports. Some media reports say that underground priests had experienced torture and disappearance if they resisted. Fujian, a traditional stronghold for Catholicism and underground Catholicism in particular, has seen particular efforts to convert underground bishops.
3.39     The numbers of CCPA versus underground Catholics are not clear. Cardinal Zen, formerly Archbishop of Hong Kong and a vocal critic of the Chinese Government, has claimed in media reports the ‘underground community’ has ‘practically disappeared’ because of pressure on underground bishops. DFAT is unable to verify this claim.
3.40     DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination.
In response to the country information, the applicant responded that ordinary practitioners may be mentally unsettled and scared by what they see happening to the leadership of their Church.
FINDINGS AND REASONS
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. The Tribunal is cognizant of the view of Beaumont J in Randhawa v MILEA (1994) 124 ALR 265 at para 21, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by suppliants’. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

The applicant did not attend the interview scheduled by the Department, and there is therefore no record of testimony to the Department. As noted above, the Tribunal (differently constituted) raised a number of concerns with the applicant’s evidence at the 2021 hearing, including her evidence about the timing of her baptism, whether she attended a house church or a state-sanctioned church, the details of who was arrested in 2015 or 2016 and the details of how she located and began attending [Church 2] church in May 2017.
Firstly, in 2021 the Tribunal (differently constituted) raised concern with the applicant’s claim that she attended a house church/underground Catholic church, and noted the applicant had initially confirmed that the [Church 1] she attended is a state-sanctioned church, although she later stated that she had not heard the Tribunal (differently constituted) on that earlier occasion. The Tribunal (differently constituted) also found that the [Church 1] is a dedicated and consecrated building, widely known to have a Marian shrine, built in 1993 to 2001 and ‘visible miles away’, which attracts pilgrims from all over Fujian Province and beyond. In making this finding, the Tribunal (differently constituted) referred to country information about the hilltop [Church 3] [in] Fuzhou.[2]
[2] ‘[Source deleted].
I note, however, a 2007 Refugee Review Tribunal Research Response which refers to the [Church 3] in ‘ [a] village near Fuzhou, Fujian province.’[3] The Research Report refers to the location of the church having been provided by Jean Charbonnier (2004) as being in [a] village, which is 10 km south of [a] Town, which is itself 33 km south-east of Fuzhou. It also notes that [the] village is located within the administrative district of Fuzhou City. The report however also notes that there is another town called [the same name], which is in Fuqing City.
[3] [source deleted].
Having considered the published information regarding the [Church 3] in [the] village, Fuzhou, I am satisfied that this is not the same church which the applicant claims she attended in [Village 1] Village, [Town], Fuqing City, Fujian, but rather a separate church in [a] Village, [a different] Town, Fuzhou, Fujian. I therefore do not find that the applicant attended a state-sanctioned church on the basis of the published information about a different church in another location in Fujian Province, which confusingly is also known as ‘[name]’. I have also listened to the audio recording of the 2021 hearing and am satisfied that it is plausible that when the applicant agreed her church in China was a state-sanctioned church, she may not have properly heard or understood the Tribunal. The Tribunal (differently constituted) put to the applicant that, judging by the baptism certificate she had provided, she was baptised in a state-authorised church. The applicant responded ‘Yes,’ however, the applicant’s response lacks conviction and I have concerns that she stated yes in a compliant manner without understanding the question asked of her. I note also that the applicant denied on several occasions ever having attended a Patriotic church in China.
I note that the baptism certificate provided by the applicant specifies that the applicant was baptised on 7 August 1992, with the certificate issued by [Church 1], Fuzhou ‘Parish’ (as translated), Fujian. The baptismal venue is recorded as ‘[Village 1] Chamber, [Church 1].’ I note that this is not the location of the [Church 3] in [Village], [town], but refers to a venue in [Village 1] Village, where the applicant was born and lived until her first marriage. While the baptism certificate refers to the Fuzhou Parish, I note that parish boundaries are different to municipal boundaries, and that the Fuzhou Archdiocese incorporates Fuqing City, where the applicant is from.[4] I also note that the date of the baptism (August 1992) predates the construction of the [Church 3], which commenced construction in 1993. I therefore do not consider that the applicant was baptised in the [Church 3], which the country information indicates is a state-sanctioned church,[5] and accept that she attended an underground church in China.
[4] ‘At least 60 Catholic Venues Shut Down in Fuzhou Archdiocese’, Bitter Winter, 26 December 2019, ‘[deleted].
I also consider the concerns regarding potential inconsistencies in the applicant’s evidence about the timing of her baptism have been addressed by the applicant’s evidence at the 2024 hearing and the written submissions made in December 2023. I am satisfied that the applicant has provided a plausible explanation for any inconsistencies in her explanation that she received a baptism by laypeople from her church community when she was 7 because her church was being persecuted at the time, and she received from a priest in 1992, which was registered.
I do not, however, accept the applicant’s explanations of the inconsistency in information about the arrest of [Father G] in either 2015 or 2016 and whether she also had a cousin who was initially arrested but then bailed. I find that the applicant has given inconsistent accounts of whether [Father G] was a priest from her church or elsewhere and who else was involved. At the 2021 hearing, the applicant claimed that [Father G] was arrested at the end of 2016 for holding a Mass in her cousin’s home. She stated that [Father G] was from her church. She stated that he was the only person arrested, but then changed her evidence to state that her cousin and others were also arrested but were bailed out. She stated that [Father G] was detained with another priest who died, although no-one knows how he died. In her representative’s submission in December 2023, she claims that [Father G] was her house church priest and was arrested in 2016 at a temporary meeting place. Whereas at the 2024 hearing, she stated that [Father G] was not the priest at her church, but the priest for somewhere else.
Searches for the details of Catholic priests who have been detained by authorities in Fujian Province indicates that a considerable amount of information is available on the identities of such priests. For instance, [A media outlet] reports on the arrest of a [Father G] in the Parish of Fuqing on 9 November 2018 and his release on 7 December 2018.[6] The same article also reports that [Father G] was repeatedly summoned for questioning by the Public Security Bureau in the 10 to 20 days following the signing of the 2018 agreement between the Vatican and China, as the underground Roman Catholic Archdiocese of Fuzhou was deemed an illegal organisation and the Public Security Bureau claimed it had the right to arrest [Father G] and other underground priests at any time. [Father G] was also arrested in in November 2015, in the lead-up to a meeting he was supposed to meet with Father [H] from the Diocese of Ningxia at a four-day national evangelistic conference in Liaoning Province. Father [H] is reported to have disappeared and later died a mysterious death. [Father G] was taken into custody by the Public Security Bureau in Fuqing in December 2015, and was under constant surveillance after being released. He was again detained in a hotel for 50 days from 2 March 2016. Another [article] reports that [Father G] was arrested on 11 October 2019 after a group of police officers burst into a Catholic venue in Changle district, Fujian, where more than 30 priests were gathered for a meeting.[7] [Father G] was arrested on the grounds that he had crossed the district border to preach.
[6] ‘[deleted]
[7] ‘[Source deleted]/.
I consider that the circumstances recounted by the applicant about ‘[Father G]’ at the 2021 hearing bare a resemblance to the November 2015 arrest of [Father G] and the disappearance and death of Father [H]. However, I do not consider that this supports the applicant’s claims that [Father G] was her house priest. I note in particular that the reason [Father G] was arrested in 2015, was in the lead-up to his attendance at an evangelistic conference in Liaoning Province, and not because he conducted a service at the applicant’s cousin’s home. I consider that the applicant has heard public reports about the arrest of [Father G] and the death of Father [H]. While I accept that these may have caused concern for the applicant, given [Father G] is an underground Catholic priest from Fuqing, I do not accept that [Father G] was a priest at the applicant’s church in [Village 1] Village, nor do I accept the applicant’s stated claims as to why [Father G] was detained. I find that her claims regarding his arrest after preaching at her cousin’s home are not supported by the country information. I also do not accept that her cousin or any other parishioners were arrested or detained.
As to any inconsistencies in when the applicant first started attending [Church 2] church and who introduced her to the church, I consider the applicant’s evidence at the 2021 hearing regarding who first took her to the church was vague. The applicant at first stated that a friend of hers took her to the church, but in response to the Tribunal’s (differently constituted) questioning about who this friend was, she gave only general responses about wanting to find a church and about the friend coming from the same town as her. After further questioning, she stated that her brother introduced her to a friend, who then introduced her to [Mrs A]. When asked again who the person from her hometown was, the applicant did not answer, but stated that her brother told her she could go to the church at [Suburb 1] by train, and on the train, she met a man from her hometown. At the 2024 hearing she stated that her brother introduced her to a fellow townsman by the name of ‘[name]’, who was the first person to take her to the church. The second time she went there on her own by train, but got lost when she arrived at the station. She found someone who she recognised as a fellow townsperson, who then accompanied her to the church. She stated that she met [Mrs A] after attending the first church service she attended at [Church 2]. The applicant told the Tribunal that she had been confused at the last hearing.
The applicant has provided various statements of support from members of her church community. These include:
a.A statement from [Mr F], who claims that he and the applicant are from the same hometown. When the applicant came to Australia in May 2017, he and his wife took her to [Church 2] for the first time;
b.a statement from [Mr E], which declares that in May 2017, he was taking a train to [Church 2] church, when he met the applicant, and that he showed her to the church and they attended church together;
c.a statement from [Mrs A], dated 1 November 2023, in which she states that she met the applicant at the [Suburb 1] church on 7 May 2017; and
d.A previous statement from [Mrs A], dated 4 July 2021, in which she also stated that she met the applicant on 7 May 2017 at the [Suburb 1] church.
I consider that while the applicant’s evidence at the 2021 hearing as to how she was first introduced to [Church 2] church was at times general and vague, her account at the hearing in 2024 is consistent with the accounts of a number of people, including the evidence given by Mrs [A]. I accept that the applicant had trouble remembering all of the details at the 2021 hearing, and note this was in relation to events which had occurred approximately four years before, and involved a number of different people and names. I therefore accept that the applicant was confused at the 2021 hearing. I accept the account the applicant gave at the 2024 hearing as to when and how she was first introduced to [Church 2] church.
Does the applicant have a well-founded fear of persecution if she returns to China?
I accept that the applicant is a Chinese national, and on the basis of the information in her passport, that she is from Fujian Province. I also accept the applicant’s evidence regarding her being raised in a Catholic family in Fujian, including her ‘baptism’ by laypersons with water when she was [age] years old, in approximately 1976. I accept her claim that this occurred because the Catholic church was being persecuted at a local level at the time, which is consistent with country information regarding the persecution of Catholic clergy in Fujian at the time. I also accept that the applicant was baptised in 1992, at the age of about [age], by a Catholic priest and this baptism was registered. The applicant has provided the Tribunal with a copy of her baptism certificate which indicates she was baptised in August 1992 in the ‘[Village 1] Chamber, [Church 1]’. The certificate is issued by ‘[Church 1], Fuzhou Parish’. Bitter Winter reports that in 2019, the United Front Work Department and Ethnic Religious Affairs Bureau in Fuzhou, organised a conference to exert pressure on Catholic priests in Fujian to join the Chinese Patriotic Catholic Association (CPCA).[8] Priests from Fuqing City declined to participate, which resulted in the closure of at least 60 Catholic venues within Fuzhou Archdiocese, of which 50 are located in Fuqing City. The same article reports that in Longtian, local officials closed down a Catholic church and told the congregation that Chinese people are not allowed ‘to believe in the Vatican’s religion’. The article states that churchgoers were threatened with arrest, should they gather to worship again. It states that on 27 October 2019, officials stormed into a Catholic church on Yuping Street in Fuqing and took photographs of every corner of the church, and that each Sunday, law enforcement officers come to watch the church to see if a priest comes to celebrate Mass. According to a report from a local official, any priest who refuses to join the CPCA will be regarded as the head of a xie jiao (cult) organisation, and the governments of several towns have demanded that village leaders inspect churches every Sunday and report to the police if any priests who are not member of the CPCA celebrate Mass.
[8] ‘At least 60 Catholic Venues Shut Down in Fuzhou Archdiocese’, Bitter Winter, 26 December 2019, >
A separate report from Bitter Winter indicates that the Longtian Church is part of the Roman Catholic Archdiocese of Fuzhou, which the authorities designated an ‘illegal organisation’ in 1998.[9] I accept on the basis of this country information that the applicant’s church, which according to her baptism certificate, is part of the Longtian Church, Archdiocese of Fuzhou, is a Catholic church where the priests are loyal to the Vatican, and therefore an underground Catholic church which is not registered or sanctioned by Chinese authorities. I also accept that in 2018, at least 50 Catholic churches across the Fuqing City were closed, with ongoing monitoring and surveillance by local authorities as to whether anyone attends these churches and whether Mass is celebrated.
[9] ‘No relief in sight for Underground Catholics’, Bitter Winter, 29 October 2018, >
The applicant gave evidence that she was not herself subjected to any harm on the basis of her practise of Catholicism in an underground church while she lived in China. She gave evidence that both of her parents were arrested and subjected to detention and public humiliation as a result of their Catholic faith when she was a child. However, the applicant conceded that she has only a vague recollection of these events as she was young at the time, and she has provided no evidence in support of these claims. I find there is insufficient evidence before the Tribunal to support the applicant’s claims that her parents were subjected to harassment or harm as a result of their Catholic faith. Although I have not accepted that [Father G] was a priest from the applicant’s local church in [Village 1] Village, nor that he was arrested after holding a service at the applicant’s cousin’s home, on the basis of the country information set out above, I accept that the underground Catholic priests in Fuqing City, including within [Town], have been subjected to harassment and persecution, including arrests, questioning, ongoing surveillance and intimidation aimed at preventing them from celebrating Mass. I also accept that threats have been made to members of the underground Catholic Church in [Town] at least as recently as 2018, that they face arrest if they attend church services celebrated by priests not affiliated with the CPCA.
I also accept the applicant has continued to practise her Catholic faith in Australia. I accept that the applicant first attended [Church 2] approximately one week after arriving in Sydney, and that she has continued to attend on a regular basis. I also accept that the applicant has been a member of the [Organisation 1] since 2017, and that her activities include participating in delivering Sunday lunch and cleaning activities. While such participation may not make the applicant a member of the ‘leadership’ of the church, I nevertheless consider that if she were to continue such activities in China, she may be perceived by the authorities to be part of the administration of the church, which may put her at some additional risk over and above other churchgoers. The applicant has also given evidence of her beliefs in the importance of evangelising. She gave evidence of undertaking such activity in China, which included arranging for her former mother-in-law to be baptise prior to her death. She gave evidence that her ex-husband was angered by these events and physically assaulted her. She also gave evidence of her fear of approaching the authorities in relation to this physical assault, both because of her belief the authorities will not act, but also because she fears they her activities as an underground Catholic will make her of adverse interest to the authorities.
Overall, I found the applicant’s account of the domestic violence she encountered at the hands of her first husband to be convincing. She gave details which were sufficiently specific and told her story in a convincing manner. I note that no evidence of the domestic violence claims was taken at the 2021 hearing, and there are no issues of inconsistency in her evidence. I therefore accept the applicant’s account of the violence she experienced during her first marriage, as well as after the dissolution of her marriage, including in 2015, when she arranged for her mother-in-law to be baptised.
The applicant gave evidence that she continues to undertake evangelising activities as part of the practise of her faith in Australia. This includes inviting persons she knows to attend her church. [Mrs A] from the applicant’s church, also gave evidence of how she undertakes similar activities as part of her faith. While the Tribunal considers that in general it is not a requirement for ordinary Catholic churchgoers to undertake evangelising activities, it is prepared to accept that there may be differences in the activities and messages of different Catholic churches, keeping in mind also differences that may arise as a result of cultural differences.[10] I accept that the applicant has engaged in low-level forms of evangelising in Australia, such as asking people about their attendance at church and inviting them to attend her church. I accept that this is a form of celebration of the liturgy of Catholicism through word of mouth. I also accept the applicant’s evidence that, if she were to return to China, she would tell people about the freedom she has experienced in practising Catholicism in Australia.
[10] See for instance the approach to evangelising promoted by the Catholic Church’s Archdiocese of Brisbane, which encourages Catholic parishioners to bear witness to their faith by both proclaiming ‘the good news of Jesus’ by word of mouth and through engaging in dialogue that leads to collaboration and action: type="1">
I note DFAT’s advice in its most recent country information report on China, which assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions, with the situation differing from place to place. On the basis of the applicant’s evidence regarding restrictions within her church community, as well as the country information provided by Bitter Winter, I accept that the applicant’s underground church community is subject to severe restrictions, which includes the closure of 50 churches within the applicant’s city, ongoing surveillance of churches and threats to arrest churchgoers. While DFAT advises that church leaders are more likely to face government attention than congregants, it also advises that regulations prohibiting proselytising are generally enforced across China.[11] The Tribunal has concerns that the applicant may continue her evangelising activities in China, as she has previously done in both China and Australia, and that these may bring her to greater risk of attention from the authorities. The Tribunal also considers that, given the applicant’s practise of Catholicism in Australia, which has included public displays of her faith, including attending public shrines, such as that featured in the video clip provided to the Tribunal, as well as participating in public processions, the applicant is likely to attend underground churches and places of worship in China.
[11] DFAT Country Information Report, People’s Republic of China, 22 December 2021, para 3.26.
The Tribunal accepts the applicant’s reasons for not attending a state-sanctioned church in China, which includes her strong belief that such churches are governed by atheists and do not represent the true Catholic faith, which she believes is expressed by the underground Catholic Church, which takes its leadership and authority from the Vatican. Given the large number of underground churches in her hometown which are closed and subject to ongoing surveillance, the Tribunal has concerns that the applicant will seek to attend Catholic services in private venues, including attending Mass celebrated by priests who have refused to have their churches registered. I note the above country information which indicates that underground Catholics in [her village] have been threatened with arrest by officials, should they gather to worship. The Tribunal therefore has concerns that the applicant’s practise of her faith may bring her to the attention of authorities, and may result in arrest, detention and questioning, as well as ongoing harassment and threats. I consider that the applicant’s practise of evangelising may place her at greater risk.
I also accept that her ex-husband would continue to harass or threaten her on return to China, in part because of his anger with the applicant’s involvement in the baptism of his mother, and that this may result in him complaining to local authorities about the applicant. I consider it important to note the closure of underground Catholic churches in the applicant’s community since she departed China, which indicates that the applicant’s evangelising activities may be of greater interest to Chinese authorities now, compared to in 2015, or compared to in 2017, when she departed China.
When these factors are considered cumulatively, I consider that there is a real chance that the applicant will be persecuted if she returns to China. I consider that the applicant’s underground Catholic faith, including her evangelising activities, are the essential and significant reasons for the persecution. I consider that her domestic violence claim may add further complexity to this claim and further increase the risk that she will be of interest to Chinese authorities, should her ex-husband report her activities as a Catholic to the authorities.
The persecutors in this case include the Government of China, given the applicant’s concerns include her ability to freely practise her religion and attend church services. State protection is therefore not available to the applicant, given the agents of the persecution are the authorities. I also find that relocation is not a viable option for the applicant because of the national nature of the discrimination she faces on the basis of her religion.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in China as a modification would require her to alter her religious beliefs or conceal her true religious beliefs or cease to be involved in the practise of their faith. The Tribunal is satisfied that a decision by the applicant to not attend underground church services, would amount to a serious modification of behaviour.
Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her religion in China. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds there are substantial grounds for believing that, as a consequence of being returned to China, there is a real chance that the applicant will suffer serious harm.
There is no evidence to suggest that the applicant has a right to enter and reside in any country other than China, her country of nationality, and the Tribunal finds that she is not excluded from Australia's protection by the operation of s.36(3) of the Act.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in 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.
Frank Russo
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 1366

25 January 2024

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Immigration

Statutory Interpretation

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Judicial Review

Natural Justice

Procedural Fairness

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