2303977 (Refugee) - [2025] ARTA 1492

2303977 (REFUGEE) [2025] ARTA 1492 (30 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2303977
Tribunal:General Member J Wilson
Date:30 April 2025

Place:Canberra
Decision:The Tribunal affirms the decision under review.

CATCHWORDS
REFUGEE – Protection Visa – China – sexual orientation – homosexual – conversion therapy – not satisfied that the applicant faces a real risk of serious or significant harm – not satisfied the applicants have a well-founded fear – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant made a review application to the Administrative Appeals Tribunal (AAT) on 20 March 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The issue to be determined is whether the applicant faces a real chance of serious harm, or a real risk of significant harm if he returns to China now or in the reasonably foreseeable future.
BACKGROUND
The applicant is a [age]-year-old Chinese male who arrived in Australia on [date] August 2018 as the holder of a student visa. On 21 October 2020, over two years after arriving in Australia, the applicant lodged an application for a protection visa claiming that he fears returning to China because he is homosexual and because of ‘uncertain scenarios’.
THE RELEVANT LAW: CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) of the Act 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) of the Act.
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
Claims and evidence before the Department
At the time of the original decision, the information available to the delegate consisted of the applicant’s protection visa application dated 21 October 2020 which was accompanied by a Letter of Support (Letter) written by the applicant, an uncertified colour copy of his Chinese passport and a further (undated) Personal Statement received by the Department on 8 December 2022 (Personal Statement). The applicant’s protection claims are contained in the Letter and his subsequent Personal Statement. There was no further evidence provided for the delegate’s consideration.
Protection visa application
In his protection visa application, the applicant declared his parents and indicated he was born in the Fujian province of China. He provided various addresses in New South Wales where he had been resident since arriving in Australia. He indicated that he could speak, read and write in Mandarin and listed ‘other’ when asked his religious faith. He included information that stated he travelled to [Country 1] for 11 days in August 2016.
With respect to his education, in his protection visa application the applicant wrote that he had completed High School at [a] School in China between the years of 2013 and 2016 and subsequently completed a Diploma [in] China between 2016 and 2019. He further declared that at the time he applied for protection, he was studying a Diploma [in] Sydney, Australia.
Supporting documents – the accompanying Letter of Support
In his Letter, the applicant claims, in summary, that:
a.he is homosexual and knew of his homosexual sexual orientation since he was in high school;
b.he had secretly collected male pictures and made a brochure whilst in high school;
c.his sexual orientation was revealed by accident during an incident at high school when a classmate knocked his school bag which resulted in the brochure falling from his bag and being reported to the teacher;
d.he said the gossip spread fast and his parents were notified which resulted in him being beaten by his parents with shoes, a rolling pin and a belt. He said that homosexuality was unacceptable to his parents and to people in his hometown;
e.he was forcibly subjected to ‘conversion therapy’ by his parents. He described being driven to the city’s psychiatric hospital by his mother and her friends where he was accepted into ‘treatment’. He wrote that he was given pills everyday and was followed when he went to the bathroom. He wrote he was subjected to electroshock therapy where he was tied to a chair and forced to watch pornographic films while being subject to electroshocks and also asked to hold an electric stick and to shock himself to avoid arousal;
f.after he was released from hospital he stated he could not continue his studies and had to transfer to another school. He wrote that his neighbours treated him like a ‘psycho’ and that his parents received insults and that ‘I can find some threaten [sic] graffiti on our house door, or even animal’s dead bodies with private parts gone’. He wrote that he went to the police but that ‘they refused to place the case on file’. He wrote that he could not go out in public areas because he would get beaten by ‘young straight fellows’. He also wrote he was never given any job opportunities after his graduation; and
g.if he returns to China he will be forced to marry a female, and if he does not agree his parents will force him to undertake further conversion therapy which would cause him physical and mental harm. He further wrote that he will need to hide his sexual orientation to find a job and will suffer persecution by way of isolation, violence and systemic discrimination.
There is no information to suggest that the Department undertook an interview with the applicant.
The Department wrote to the applicant on 12 November 2022, further to s 56 of the Act, requesting further information from the applicant and expressing its concerns about the delay in the applicant lodging a protection application and that his claims were vague and lacking substantiating details. The Department requested further details, including the nature of the relationships, the location and time that the conversion therapy took place and details of others’ knowledge of his sexuality and his involvement in the LGBTQIA+ community.
Further Supporting documents – Personal Statement
In response to the Department’s request for further information, in his Personal Statement the applicant reiterated some detail from his Letter and also included reference to the fact his parents sent him to the psychiatric hospital in the winter holiday of 2016. He wrote that he could not recall the name of the hospital or the date because he was groggy all day and felt sleepy. He wrote that he was released from hospital after nearly one month. He wrote that following his release his teacher asked his father to transfer him to another school, however when the other schools assessed his transfer application that they all refused to accept him. Consequently, his father begged the teacher to permit the applicant to continue his studies. The Personal Statement states that ultimately the school agreed to allow the applicant to complete his remaining semester of school, however he could only complete the studies off-campus, so as to not affect other students and their parents.
In his Personal Statement the applicant included a further recollection of being beaten by his father during his college studies when they found homosexual content on his computer browsing history. He wrote that he was sent to the local psychiatric hospital again. The applicant provided further views about his parent’s negative treatment of him and that he feels a sense of freedom in Australia.
Summary of the delegate’s decision
The delegate refused to grant a protection visa to the applicant and expressed concerns about the applicant’s credibility. The delegate found that the applicant’s claims to be lacking in significant details and substantiating evidence. The delegate also considered the applicant’s delay in seeking protection raised concerns about the genuineness of his claims. The delegate found the applicant’s claims concerning his treatment as a homosexual person in China and his claims of being subjected to conversion therapy not to be credible, and accordingly found his claims of fear of harm and mistreatment on return to China also not to be credible.
Evidence before the Tribunal
The applicant lodged his application for review with the AAT on 20 March 2023. The application for review was accompanied by the delegate’s decision record and notification of visa refusal.
Evidence provided pre-hearing: publications
Prior to the hearing, the applicant also provided the Tribunal with a number of publications, consisting of media articles and research articles that each related to the treatment of LBTQI+ peoples’ in China (publications). The publication dates ranged from 2016 – 2024. The relevance of the articles to the applicant’s claims are considered further below in the Reasons and Findings.
Oral evidence provided at hearing
The applicant appeared before the Tribunal on 5 March 2025 via video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the commencement of the hearing the Tribunal provided the applicant with an overview of the hearing process and asked the applicant to confirm he could understand the interpreter clearly, to which he responded that he could. The applicant told the Tribunal that he was a citizen of China and had no right entry to any other country.
The Tribunal asked the applicant whether he had he ever travelled to any other countries. He responded that ‘it’s been such a long time I cannot remember’. The Tribunal rephrased its question. He continued by saying that his parents had sent him to a local mental hospital for some time in China and that he could have lost his memory which is why he could not remember exactly. He further said that before coming to Australia ‘it was the time before the school term so I came direct to Australia’. The Tribunal raised its concern that the information provided in his protection visa application indicated he had travelled to [Country 1] in 2016. In response, he said ‘I really cannot remember’.
The Tribunal asked about the preparation of his protection visa application. The applicant said he prepared the application himself and could remember the documents he sent to the Department of Home Affairs. When asked, the applicant said he had not sought the assistance of an immigration lawyer or migration agent in Australia.
The applicant said he was born and raised in Fuqing City, Fujian Province in China as an only child. He lived there with his parents his entire life and said that his parents continue to live there. He said his mother is a housewife and that his father worked in [a shop], although he does not know what he does now for work. He said his father supported him financially initially when he came to Australia, but no longer sends him money. He said he has some contact with his parents, but rarely. He said the last contact he had with them was via telephone, when they called him to tell him they were arranging a marriage for him when he returned to China. He could not recall when that telephone call took place.
The applicant described his marital status as single. He said he had never had an intimate relationship.
The Tribunal asked about the applicant’s education and schooling, specifically the names of the schools he attended and the years he was there. He said ‘I remembered that because of my homosexuality that I was in high school and at that time I was collecting some pictures of boys and put them in my school bag’. The Tribunal repeated its question. In response, he said ‘to my impression, it seems I was in the junior school in the year in 2009 but I cannot remember the name’. The Tribunal asked whether he attended any other schools and the applicant said ‘I don’t remember’. The Tribunal then asked whether he remembered attending primary school or middle school. The applicant responded by saying that ‘I don’t remember’. The Tribunal asked the applicant to recall his earliest memory, to which he said ‘I really can’t remember all these things in details because when I was found to be homosexual in high school I was sent to the mental hospital and received treatment from the doctors’. The Tribunal asked the applicant whether he has any memories of his childhood, to which he responded ‘I don’t remember’.
The Tribunal asked the applicant whether he was currently taking any medication, to which he responded he was not. The Tribunal then asked if the applicant was under the care of medical professionals in Australia, to which he responded he was not. The Tribunal asked whether he was under the care of doctors in China after being released from the hospital for ongoing treatment. He responded that the reason he was sent to the hospital was not because he was sick, but because he was homosexual which was considered a disease in China. The Tribunal rephrased its question and the applicant responded by saying ‘no’. When asked to describe his current health, the applicant said he is generally quite healthy and seldom gets any diseases.
When asked whether he had completed any further study in China after graduating from high school, the applicant said he had not, because after graduating high school he came to Australia. The Tribunal expressed its concern that his protection visa application contains contrasting information, namely that between 2016-2019 he completed a Diploma [in] China. He said he did not remember that life event.
The Tribunal asked what studies the applicant had completed in Australia. The applicant said that he studied at a college in Sydney city after arriving in Australia in August of 2018 – but could not remember when he was there. He said he did not complete the course because his family cut off his financial support. He later said he thought he had completed one-two years of study at the Australian college.
When asked about how he spends his time, the applicant said that in order to support his livelihood in Australia that he searched for casual work. He said he currently works three-four days per week [and] claims to earn between $AUD [amount] per week. He said he has had that job for two-three years. He said his salary is sufficient for him to live and that he shares a house with his work colleague. He later indicated he has changed addressed, relocating from Sydney to a suburb in Darwin, Northern Territory about two years ago. He said he never worked in China.
The Tribunal asked the applicant why he left China. In response, the applicant said the reason was mainly because of his homosexuality. He said his intention in coming to Australia was to study. He went on to say that he felt an immediate sense of freedom in Australia and that he learnt that homosexuality was legal in Australia. He said he told his family that homosexuality was allowed in Australia.
The applicant gave evidence that he lodged his protection visa application about the time that his parents were pressuring him to return to China. He said he fears returning to China because his family would force him to marry a woman. When asked if he has any other reasons for seeking protection, he provided no other reasons, only expanding on his previous comments and adding that his homosexuality will not be allowed by his parents and that he wants freedom. The Tribunal asked whether he fears harm, to which he responded he really did not know. When asked about who he fears, he said he did not know. The Tribunal rephrased its question to ask whether he feared any persons other than his parents, to which he responded that he has no idea. The Tribunal asked where he thinks he would live if he must return to China. He said he was not sure, but said his parents would ‘definitely not’ be happy to see him. The Tribunal asked the applicant whether he feared being forced to undergo conversion therapy now that he is an adult, to which he said his parent will force him.

The Tribunal asked the applicant to explain whether he has personally experienced harm in China in the past. The applicant said he was harmed mentally and physically at the hospital. When asked if he suffered other harm, the applicant said that after learning of his sexual orientation at school, that this classmates mocked him and sometimes threatened to beat him. When asked if he had ever been physically harmed by students, he said he could not remember exactly. He then said they did attack him, but he could not remember the details. The Tribunal asked whether he was ever beaten by his parents. He said he was beaten by his father using his belt and leather shoes, but could not recall on how many occasions. When asked about whether he faced harm in the community by other people, he said that he was not beaten by others, but received strange looks which made him feel uncomfortable. Later in the hearing, the applicant said he recalled being stopped by a group of young people playing basketball who attacked him, but he said he was not injured.
The Tribunal asked whether his family has been subjected to harm, or attacks, because of the applicant’s sexuality. He responded that his parents had not been attacked but felt ashamed. He made no mention of the other claims made in his Letter and Personal Statement, relating to his parent’s home being vandalised or parts of deceased animals being left near the family home.
When asked about when he realised he was homosexual, the applicant said it was around 2009 when he was around age [age]-[age] at high school, that he recalled being attracted to a man who was selling [a product]. He said he went to buy [the product] everyday in the hope of getting to know the man. He stated that they ultimately exchanged telephone numbers and talked daily for a period of time. The applicant said that one day he told the man that he liked him and the man was shocked and told him to never come to him again and to stay far away from him. He said he never told anyone else about his homosexual orientation.
When asked how he presented his sexual identity in China the applicant said that everyone in China considers homosexuality is a sickness. When asked if anyone in Australia knows about his sexual orientation, he replied in the negative, stating that not even his housemate was aware. He later clarified that when he first attended college in Australia that his fellow students would know that he was homosexual from the group activities that they had completed together, but that they have since separated (by which the Tribunal understood they were no longer in contact).
The applicant said that on release from the hospital he came to Australia. He said he never spoke about the incident with anyone, because he didn’t want to remember the physical and mental trauma. When asked whether the treatment he experienced in China has impacted his ability to study or work, he requested the question be repeated. The Tribunal rephrased and asked whether his memory loss impacts on his ability to study and work in Australia, to which the applicant responded, that when he first arrived in Australia he learnt that homosexuality is legal in Australia and that his mental status improved on the ‘good side’ but made mention of remaining bad memories.
When asked whether the applicant engages with the LGBTQIA+ community in Australia, he said he does not, because he needs to work. When asked how he likes to enjoy his free time, the applicant says he prefers to rest at home.
The Tribunal shared country information with the applicant from the Department of Foreign Affairs and Trade (DFAT) Country Information Report China 27 December 2024 (DFAT Report). The DFAT Report stated that conversion therapy was banned in China in 2014 and that medical practitioners who perform the treatment are being prosecuted. The Tribunal asked whether with knowledge of that information, the applicant considered the Chinese Government would offer state protection to him from being forced to undergo conversion therapy. The applicant responded that the state authorities do not care about people being admitted to hospitals so long as there is an admission signature. He said if the country information was true, he would not have been treated the way he was in China.
The Tribunal asked whether the applicant could move away from his parents and relocate. The applicant responded that it is impossible because all his documents are stored by his parents. The Tribunal asked whether the applicant could obtain documents from his parents to demonstrate that he had been admitted to the hospital. He said his parents would never give him documents. When asked by the Tribunal whether he could contact the hospital directly to request his medical records the applicant said he could not remember the name of the hospital, and even if he could, they would never release medical records to the patient. The Tribunal asked whether the applicant could approach the Chinese authorities to obtain his own documents to allow him to start his life afresh in a new province. He said his parents would come looking for him immediately because he is the only child. When asked how his parents would know that he has returned to China, the applicant said his parents would contact the authorities if they were unable to contact him. The Tribunal notes this appears to conflict with earlier evidence given by the applicant in the hearing that suggests he only has rare contact with his parents.
The Tribunal referred to the publications the applicant provided to the Tribunal for consideration, and asked if there were specific details the applicant would like to discuss. He said he was well protected in Australia and does not want to return to China to suffer treatment again. He made no further comments regarding the publications.
The Tribunal shared further country information from the DFAT Report with the applicant concerning the banning of conversion therapy in China,[1] and more broadly, that there has been a reduction in societal stigma towards homosexual people,[2] and that public acts of violence against LGBTQIA+ community members were rare, and limited to verbal abuse.[3] In response, the applicant said that hospitals are not interested in legalities, only in providing treatment and that the report does not apply to each hospital, saying that there are some hospitals that will still offer treatments illegally. The applicant agreed the situation now is more open in China and then appeared to resile from his claims by saying he would not be attacked but noted that verbal abuse could still cause him mental trauma. He further said that the police were unlikely to act on complaints of verbal abuse (in the absence of physical violence).
[1] DFAT Report, 51 [3.185].
[2] Ibid 50 [3.181].
[3] Ibid, 51 [3.184].
The Tribunal sought clarity from the applicant about whether he feared persecution from Chinese society or the treatment of his parents specifically. The applicant stated that the Tribunal had correctly understood his claims as primarily relating to the treatment he would receive from his parents (being forced into marriage or to attend a mental hospital), and physical beatings from his father, in particular. He then added he was also concerned about uncertain scenarios, being that if he returned and people learnt he was gay he could face brutality. He cited the example of needing to walk alone without CCTV and being attacked by someone. When asked why he thinks he would be specifically targetted the applicant relayed a recollection of being stopped by a group of youths at the basketball field, and receiving looks before being attacked by them. He said he was not physically hurt because there were too many people present. He then said they warned him not to walk near that street again.
The Tribunal asked whether the applicant had any further information he would like to share with the Tribunal. He said he did not.
Procedural fairness
At the hearing, the Tribunal shared its concerns with the applicant concerning his claims. The Tribunal noted the delay in the applicant seeking protection might suggest that his claims lacked credibility. In response, the applicant said the delay can be explained by the fact he came to Australia to study and he only lodged protection once his family had asked him to return to China to meet candidates for the arranged marriage, after which time they cut off his financial support prompting him to seek protection.
The Tribunal also raised its concerns about differences in the evidence provided by the applicant at the hearing versus that provided in the protection visa application and supporting documents. The Tribunal provided an example from the Letter citing that after being released from the hospital his parents forced him to change schools, whereas in the hearing he said that he came to Australia after being released from hospital. By way of response, the applicant said they ‘forced me to another school because this school is due to start very soon, which is why I need to come to Australia – not the school in Australia but the school in China, and then eventually I have successfully applied for school in Australia. Just because of my homosexuality, I was transferred to another school and eventually graduated’. The Tribunal clarified with the applicant, and he stated that ‘at the time, I was released from hospital they told me to transfer to different school however I did not attend the school but finished school from home and successfully graduated, before applying to come to Australia, which bought shame on my family’. The Tribunal does not accept the applicant’s claim that he came to Australia directly after finishing High School in [year], because it conflicts with the Departmental data which clearly indicates the applicant entered Australia for the first time in August 2018.
The Tribunal noted its further concerns that the applicant’s evidence is missing significant detail, and asked the applicant whether there was any further detail the applicant wished to provide. The applicant responded he had nothing else, noting his memory of the past is chaotic.
Following the hearing, the Tribunal sent the applicant further written correspondence on 5 March 2025 indicating it would proceed to consider his claims and evidence and offered him a further seven days to provide any post-hearing submissions. The Tribunal’s letter reiterated its concerns about the lack of details and supporting documentation relating to his claims.
The applicant did not provide any post-hearing submissions to the Tribunal.
REASONS AND FINDINGS
Identity, Nationality and Receiving Country
The applicant claims to be a citizen of China and provided a colour copy of the bio page of his Chinese passport to the delegate. The delegate was satisfied as to the applicant’s identity and nationality. Having conducted a face to passport match at the hearing, and having accepted the Department’s findings as to identity, the Tribunal accepts the applicant’s identity, nationality and that China is the receiving country for the purposes of assessing his protection claims.
Assessment of claims
While the Tribunal can adopt a trauma-informed approach to facilitating hearings and provide options to assist applicants participate in the review process, the Tribunal has no obligation to initiate enquiries or to make out an applicant’s case for them.[4] Section 5AAA of the Act provides that it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim.
[4]Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318; (2007)164 FCR 151 at [60].
The Tribunal has considered the delegate’s decision afresh, including the available country information together with the publications provided by the applicant and his oral evidence.
In this application for review, a combination of lack of details, differences and inconsistencies in the accounts provided by the applicant, the delay in seeking protection, the absence of any supporting evidence and a concerning level of similarity between the applicant’s claims and publicly available information lead the Tribunal to question the credibility of the applicant’s claims.
In forming its credibility assessment, the Tribunal has considered whether the applicant’s inability to recollect matters of the past has been impacted by any medical conditions. The applicant gave evidence that he is generally healthy and has not been under the care of medical professionals in Australia. He has not provided any medical evidence to suggest that his inability to recollect details is caused by any medical issues. The Tribunal is also informed by the fact the applicant undertook studies and has maintained employment in Australia which leads the Tribunal to believe he is not lacking in memory or cognitive function and that rather, his inability to recall certain events is because the events did not occur as claimed.
For the reasons discussed below, the Tribunal affirms the delegate’s decision.

Is the applicant homosexual?
The applicant has consistently claimed throughout his correspondence with the Department and the Tribunal that he is homosexual.
Other than his claims and the publications he provided which discussed the treatment of LGBTQIA+ people generally in China, the applicant has provided no further evidence to support his specific claims. He did not respond to the delegate’s questions about his prior relationships or engagement with the LGBTQIA+ community, and during the hearing told the Tribunal he had never been in any intimate relationship and did not engage with the LGBTQIA + community in Australia. In his Personal Statement the applicant referenced Mardi Gras celebrations in Australia but provided no detail of his personal involvement.
The Tribunal notes that the applicant states that he does not publicly share his sexual orientation and that his own housemate is not aware of his sexual orientation, although later in the hearing he said that his former student colleagues in Australia were aware of his sexual orientation. It strikes the Tribunal as curious that the applicant would choose to conceal his sexual orientation in Australia, a country where members of the LGBTQIA+ community are freer to express their sexual orientation and have enhanced legal rights and protections, especially compared to his homeland.
The Tribunal has considered the possibility that the applicant is a private person who may not share his sexual orientation with others. His account does not persuade the Tribunal that he has any lived experience as a homosexual person. Having regard to the Tribunal’s serious credibility concerns about the applicant’s claims the Tribunal is not persuaded by the evidence and does not accept that the applicant is homosexual.
Did the applicant face harm in the past as claimed?
Conversion therapy
The Tribunal is concerned by the gravity of the claims made by the applicant, especially with respect to being forcibly subjected to electric shock therapy (conversion therapy) whilst in China.
While the Tribunal has ultimately not accepted that the applicant is homosexual, and it follows that it would be unlikely that the applicant would have been subjected to conversion therapy otherwise, as part of its preliminary deliberations the Tribunal has contemplated the possibility that the applicant was subjected to conversion therapy in China.
The Tribunal is aware that conversion therapy, regrettably, is a practice that has occurred against members of the LGBTQIA+ community in China historically. The Tribunal is informed by the DFAT Report that states that:
3.185 Conversion therapy was deemed ‘illegal’ in 2014 by a Beijing court and is banned in all public hospitals across China. This ban followed a decision by the Chinese Psychiatric Association in the early 2000s that homosexuality was not a pathological condition and should not be considered abnormal. In-country sources told DFAT in 2023 that doctors and other medical personnel who offered conversion therapy had been successfully prosecuted by authorities to help stamp out the practice.
The Tribunal has also considered an article from The Guardian dated 15 January 2024[5] which was provided by the applicant and which references a Human Rights Watch publication[6] dated 2017 which states, contrary to the DFAT Report, that conversion therapy was still occurring in China.
[5] Jessie Lau, ‘It’s difficult to survive’: China’s LGBTQ+ advocates face jail and forced confession, The Guardian (15 January 2024) cult-to-survive-chinas-lgbtq-advocates-face-jail-and-forced-confession.
[6] Jun Cen for Human Rights Watch, ‘Have you considered your parents’ happiness? Conversion therapy against LGBT People in China’ (15 November 2017) Human Rights Watch <>
At the hearing, the applicant did not provide any details as to the timeframe, location or other descriptors pertaining to the claimed conversion therapy incident/s. In the hearing, the applicant stated that his ability to recollect had been impacted by the therapy. As to the likely timeframe of any conversion therapy, the Tribunal is informed only by his Personal Statement which states:
in the winter holiday of 2016 my parents with their friends sent me to the local psychiatric hospital …
for a period of one month and released in February.
Accordingly, the Tribunal considered the possibility that the applicant was admitted to a hospital for conversion therapy between January 2016 and February 2016. The Tribunal notes the information contained within the DFAT Report that suggests that conversion therapy would have been illegal at that point in time, however balances that with the Human Rights Watch Report that suggests that the practice may have continued,[7] and that the most extreme cases have involved forcible subjection under duress to the practice.[8]
[7] Ibid.
[8] Ibid 15.
In the process of reviewing the Human Rights Watch Report the Tribunal noted a striking resemblance between its contents and the applicant’s claims, for example, the Human Rights Watch Report states:
There is a saying in Chinese "不孝有三，无后为大" — “Among the three major ways to be disrespectful to your parents and ancestors, the most severe one is not having offspring.” This saying sums up social ideas about traditional family values in China, and the strong emphasis, on getting married, having children, perpetuating the family name, and supporting aging parents.[9]
The applicant’s Letter states (without any references):
There is a saying in my hometown “Among the three major three major ways to be disrespectful to your parents and ancestors, the most severe one is not having offspring.” This saying sums up social ideas about traditional family values in China, and the strong emphasis, on getting married, having children, perpetuating the family name, and supporting aging parents.
[9] Ibid 12.
The Tribunal notes further similarities between the applicant’s recollection of his conversion therapy in his Letter and Personal Statements and the stories shared by victims which are expressed in the Human Rights Watch Report. Accordingly, the Tribunal is concerned that the applicant may have drawn content for his claims from the Human Rights Watch Report which leads the Tribunal to further question the credibility of his claims.
Notwithstanding the Tribunal’s concerns about his claims, the Tribunal looked for other indicators that might suggest that he was forcibly subjected to conversion therapy as claimed. He has provided no details as to the location or name of the hospital, other than that it was in the city, and could not provide any details of the medication he was given, or descriptors of the environment, medical staff or other patients that he may have seen there. In his Personal Statement he refers being sent back to the hospital on a second occasion, but made no reference to that second admission in his oral evidence provided at hearing.

Having regard to the totality of the evidence provided, the Tribunal’s credibility concerns, and the current country information, the Tribunal does not accept that the applicant was forcibly subjected to conversion therapy in China for reasons of being homosexual, or for any other reason.
Other harm claimed
Having rejected the applicant’s claims that he is homosexual and was subjected to conversion therapy, it follows that the Tribunal does not accept that he was subjected to the other harm because of his sexual orientation, as claimed.
Specifically, the Tribunal does not accept that the applicant was physically beaten by his father or youths in the street, received insults or suffered mental harm or that his parent’s home was vandalised as claimed. These claims were vague and unspecific.
The Tribunal does not accept that after school he was deprived of job opportunities owing to his sexual orientation and prefers the applicant’s earlier evidence contained in his protection visa application that after school he did not work, but rather enrolled in a Diploma course of study prior to coming to Australia.
Will the applicant face harm on return to China?
Having rejected the applicant’s claims that he is homosexual and that he suffered past harm and mistreatment due to his sexual orientation, the Tribunal does not accept the applicant’s claims about his prospects of future harm or mistreatment owing to his claimed homosexuality.
Specifically, the Tribunal does not accept that if the applicant returns to China, he:
a.will be forced to marry a female, and if he does not agree that his parents will force him to undertake further conversion therapy which would cause physical and mental harm; or
b.will need to hide his sexual orientation to find a job and will suffer persecution by way of isolation, violence and systemic discrimination.
The Tribunal has considered whether the applicant will face harm for any other reason. During the hearing the Tribunal attempted to clarify the nature of the ‘uncertain scenarios’ the applicant had referred to, however he provided limited further detail other than to say he was worried he may be attacked on a street where there was no CCTV. The applicant did not provide any evidence as to why he thought he would be the target of any such attacks. Accordingly, the Tribunal is not satisfied on the evidence that the applicant’s stated fears of ‘uncertain scenarios’ is well-founded. This is particularly so as this claim was not particularised.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal has considered whether the applicant has a well-founded fear of persecution if he returned to China.
Having rejected the applicant’s claims that he is homosexual, was subjected to past harm as a result of his sexual orientation, and will face any future harm the Tribunal is not satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, for reasons of his sexual orientation, or for any other reason, if he is returned to China.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution per s 5(J) of the Act. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution it is not satisfied that the applicant meets the definition of refugee in s 5(H)1 of the Act. Because the applicant does not satisfy the definition of s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[10]
[10] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Following the Tribunal’s findings set out above that the applicant will not face any harm now or in the reasonable foreseeable future if he is returned to China due to his claimed homosexuality or any other characteristc, for the same reason the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to China, there is a real risk he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:       5 March 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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