2214790 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa, who claimed to be an underground Catholic in China. The applicant alleged a well-founded fear of persecution based on her religion and also raised claims of domestic violence. The AAT was required to determine whether the applicant had a well-founded fear of persecution for one or more of the reasons specified in s 5J of the Migration Act 1958, or, alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of her removal to China, she would suffer significant harm.

The Tribunal's reasoning focused on the applicant's practice of her Catholic faith within an unregistered, underground church in China, which is loyal to the Vatican. It accepted evidence that such churches face severe restrictions, including closures and surveillance by Chinese authorities. The Tribunal also considered the applicant's activities in Australia, including her participation in church activities and her stated intention to evangelise if she returned to China. It found that these activities, particularly evangelising, could place her at greater risk of attention from Chinese authorities. Furthermore, the Tribunal accepted the applicant's account of domestic violence perpetrated by her ex-husband, noting that this could exacerbate the risk if he were to report her religious activities to the authorities.

The Tribunal concluded that the applicant's underground Catholic faith and her evangelising activities were the essential and significant reasons for a well-founded fear of persecution. It found that state protection was unavailable as the potential persecutors were the authorities themselves, and relocation was not a viable option due to the national nature of the religious discrimination. The Tribunal was satisfied that the applicant could not reasonably modify her behaviour to avoid this risk without fundamentally altering her religious beliefs or practice. Consequently, the Tribunal found that the applicant had a well-founded fear of persecution for reason of her religion and that Australia had protection obligations towards her. The matter was remitted for reconsideration with a direction that the applicant satisfied the criterion set out in s 36(2)(a) of the Migration Act.