2311625 (Refugee) - [2025] ARTA 1315

2311625 (REFUGEE) [2025] ARTA 1315 (30 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2311625
Tribunal:General Member M Bailey
Date:30 May 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review

Statement made on 30 May 2025 at 11:18am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – member of house church – monitored, harassed, detained and mistreated – arrived on student visa and applied after college closed during COVID pandemic – application and supporting statement prepared by agent with applicant unaware of contents, and claims discontinued at hearing – economic conditions – work to support elderly parents with medical expenses, wife and children – general economic conditions not refugee or complementary ground – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4)(a), (c), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (delegate) on 31 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 October 2021. The delegate refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant lodged a review application with the former Administrative Appeals Tribunal (AAT) on 4 August 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.
On 16 October 2024 the applicant was advised that his file was being prepared for allocation to a Tribunal Member. He was requested to complete a ‘Pre-hearing information’ form and provide any additional information of relevance to his protection claims. No response was received from the applicant.
On 2 May 2025 the applicant was given notice of the hearing and was requested to complete a ‘Response to hearing notice’ form within seven days. A follow-up email was sent on 12 May 2025 as the applicant had not responded. Two SMS hearing reminders were also sent to the applicant’s mobile on 15 and 21 May 2025. No response was received from the applicant. The applicant did not join the hearing at the scheduled time. When the Tribunal called his mobile with the assistance of an interpreter in the Mandarin language, the applicant answered and stated that he was not aware of the hearing. He agreed to join the hearing and was sent the videoconference link.
The applicant appeared before the Tribunal by videoconference on 22 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is a [Age]-year-old male from Jilin Province, China. He arrived in Australia [in] October 2019 on a Student (subclass 500) visa and has not departed since that time.
The applicant provided a copy of the biodata page of his Chinese passport to the Department of Home Affairs (Department) in support of the protection visa application. The delegate was satisfied that the applicant is a citizen of China and there is no information before me to the contrary. I am satisfied that the applicant is a citizen of China and China is his receiving country for the purposes of assessing his protection claims.
CLAIMS AND EVIDENCE
Evidence before the Department
According to the protection visa application, the applicant was born and resided in [Village], [Township], Meihekou city, Jilin Province. His religion is recorded as Christian and ethnicity as Chinese. He completed high school in 2007 and has never been employed. He married in May 2009. His parents and wife reside in China.
Regarding his claims for protection, he stated (in summary) that he left China because his religious beliefs were continuously obstructed by the local government. He is a loyal member of the house church which is subject to persecution and oppression by the local government. The government constantly monitored and harassed their meeting place. He was tracked and monitored by the local government, driven out of his city and forced to give up his work and life. If he returns to China he will again be severely punished by the government. The local police believe him to be a leader of the house church. He will be arrested on return. He wishes to remain in Australia where he can freely practise as a Christian and will no longer have to hide in Tibet.
A 7-page typed statement was also submitted setting out further details of his protection claims. In summary, this reiterated that the applicant had departed and was unable to return to China due to his Christian religion and membership of a house church in China. He claimed that he had been arrested and detained several times by the authorities, during which he was subjected to mistreatment. While in Australia he has attended the Chinese church on a weekly basis and experienced freedom of religion.
On 7 November 2022 the Department wrote to the applicant advising that his claims lacked substantiating details and supporting documents. He was invited to provide additional information regarding his claims. No response was received from the applicant.
The applicant was not invited to attend an interview with the Department. Based on the lack of substantiating detail, the applicant’s ability to be issued a passport in [2017] and depart China lawfully, and the delay of almost two years in applying for protection, the delegate found that none of the applicant’s claims were credible.
Evidence before the Tribunal
As outlined above, no additional evidence was submitted to the Tribunal prior to the hearing. The applicant provided oral evidence to the Tribunal as summarised below.
Regarding the preparation of the protection visa application, including the 7-page supporting statement, the applicant stated that an ‘agent’ to whom he paid about $1,000, assisted him. He is not sure exactly what was written in these documents but believes ‘roughly’ that his claims relate to ‘seeking political protection’. His ‘agent’ has dealt with all matters relating to his protection visa and review applications, which is why he did not respond to the Department’s request for additional information or the Tribunal’s correspondence regarding his review application.
The applicant confirmed that his residential history as recorded in the protection visa is correct. His parents continue to live in [Village]. He has two older married sisters who live in the same area. His wife also lives in [Village]. He has [children], currently aged [Ages] who reside with his wife. He maintains regular contact with his family. He stated that life in China is difficult for them because they are from a rural area with limited income and his parents are not well.
The applicant stated that after completing high school, he worked as a farmer in his local area. He came to Australia in 2019 to study [subjects] but did not complete his studies because of the COVID pandemic. His college closed and he had to work to support his family.
Asked about his religion, the applicant stated that he is not involved in any religion and considers himself to be an atheist.
Asked why he applied for a protection visa in October 2021, the applicant stated that his college had closed because of COVID and he did not know what to do about his visa so he applied for a protection visa. Asked why he can’t return to China now, he stated that he lives in a rural mountainous area and has to earn money to support his elderly parents and his two children. When asked if there was any other reason he could not return to China, he referred to wanting to be in a position to pay for his parents’ medical expenses.
I discussed with the applicant the claims raised in his protection visa application. He responded that his agent wrote those claims, and he was unaware of what was written. The applicant confirmed that those claims are not correct. The applicant confirmed that he wants to remain in Australia for economic reasons, so that he can financially assist his family in China. I explained to the applicant the requirements under the refugee and complementary protection criteria, including that claims of that nature generally do not satisfy those requirements. He indicated that he understood but reiterated that he hopes he can extend his stay in Australia to help his family.
FINDINGS AND ASSESSMENT
The issue in this case is whether the applicant engages Australia’s
protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the AAT Guidelines on the Assessment of Credibility[1] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[1] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I accept the applicant’s evidence to the Tribunal that he did not complete the protection visa application and was not aware of the claims made in that application. Based on the applicant’s evidence to the Tribunal, I accept that has had no involvement in Christianity or any other religion and considers himself an atheist. I accept the applicant’s claims as presented to the Tribunal to be credible, namely that he wishes to extend his stay in Australia so that he can financially assist his family in China, including paying for his parents’ medical expenses.
Refugee and complementary protection assessment
Considering my findings above, I am not satisfied that the applicant faces a real chance of any harm for reasons of religion. I acknowledge that returning to China will cause the applicant and his family a degree of economic disadvantage. However, general economic conditions in China which may result in economic disadvantage do not amount to persecution. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[4]
[4] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
I find that the applicant’s claims relating to economic disadvantage on return to his home area of Jilin Province to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c) – that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct – are not satisfied.
For the above reasons, I find that the applicant does not have a well-founded fear of persecution in China and is therefore not a refugee as defined in s 5H(1).
As I have found the applicant to not be a refugee, I have considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, he will suffer significant harm. I note that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[5] For the same reasons discussed above, I find that there is not a real risk that, as a necessary and foreseeable consequence of his removal to China, the applicant will suffer significant harm due to religion.
[5] MIAC v SZQRB [2013] FCAFC 33
Regarding economic disadvantage on return to China, I am not satisfied that this amounts to any of the types of significant harm defined in s 36(2A). The definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act each require an intention on the part of a perpetrator to inflict severe physical or mental pain or suffering or extreme humiliation which is unreasonable. Any economic disadvantage that the applicant may experience due to general economic conditions in China would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions.
The applicant has not claimed to fear harm for any other reason if he returns to China and I find that no additional claims arise on the accepted facts.
Conclusions
For the reasons given above I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. 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: 22 May 2025
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.
…