2216147 (Refugee)

The applicant, a national of China, sought review of the delegate's decision to refuse his application for a protection visa. The applicant claimed to be a practising Christian who had attended an underground church in China before arriving in Australia in 2004. He maintained contact with friends in China who were also involved in religious activities, to whom he sent religious materials from Australia. The applicant's protection visa application was lodged in 2019, and the delegate refused it in 2022.

The primary legal issue before the court was whether the applicant was a person in respect of whom Australia had protection obligations, specifically whether he held a well-founded fear of persecution for reasons of religion, as defined by the *Migration Act 1958* (Cth). This involved considering the applicant's past involvement with underground churches in China, the current religious climate in China, and the credibility of his claims in light of his extended periods of unlawful residence in Australia and his stated reasons for not returning. The court also considered the status of the applicant's son, who was a member of the same family unit.

The court reasoned that the applicant's claims regarding his religious activities and the potential risks he faced in China warranted further consideration. It noted that the applicant had provided evidence of his involvement with underground churches and the transmission of religious materials to China. However, the court also highlighted the applicant's significant periods of unlawful residence in Australia and the need to assess whether these periods undermined the credibility of his protection claims. The court concluded that the matter should be remitted for reconsideration, directing that the first applicant be found to satisfy section 36(2)(a) of the *Migration Act*, and his son to satisfy section 36(2)(b)(i) on the basis of family unit membership.