2402305 (Refugee) - [2025] ARTA 1530

2402305 (REFUGEE) [2025] ARTA 1530 (13 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2402305

Tribunal:General Member B Gogarty
Date:13 May 2025

Place:Hobart
Decision:The Tribunal affirms the decisions under review.

Statement made on 13 May 2025 at 3:55pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – home demolition – raising children as Christians – home churches – credibility issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 351, 499
Migration Regulations 1994, Schedule 2 cl 866.221; r 2.08
CASES
Chan Yee Kin v MIEA (1989) CLR 379
MIAC v SZGIZ [2013] FCA 427
MIAC v SZRKT [2013] FCAFC 80
MIEA v Wu Shang Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
MIMA v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Mohamed v MIMA (1998) 83 FCR 234
MZXRY v MIMA [2006] FCA 1475
Randhawa v MILGEA (1994) 52 FCR 437
Somaghi v MILGEA (1991) 31 FCR 100
SZLSP v MIAC [2012] FCA 451
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3
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 a review of a decision by a delegate of the Minister for Home Affairs made on 19 January 2024 to refuse the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants are citizens of the People’s Republic of China (China) and the primary applicant is the mother of the secondary applicant
The principal issues in respect of the primary applicant are whether she is a genuine convert to Christianity and, if so, whether she faces a "real chance" of persecution for reasons of her religion (s 36(2)(a)) or a "real risk" of significant harm (s 36(2)(aa)) if returned to her country of origin, China. The principal, dispositive, issue in relation to the secondary applicant is whether she is “a non-citizen in Australia” as an essential criterion for protection under ss 36(2)(a), 36(2)(aa), or 36(2)(b). Having considered these issues, and for the reasons set out below, the Tribunal is not satisfied that either applicant meets the criteria for either form of protection provided for by s 36 of the Act.
BACKGROUND
The applicant was born in Shanghai, China and, at the time of the decision, is [age] years old. She has no siblings. Her parents live in Shanghai where her father is in paid employment and her mother, retired, shares childcare duties for the applicant’s daughter with the applicant’s mother-in-law.
The applicant's daughter is included in this application as a secondary applicant. The secondary applicant is [age] and was born in Australia but is currently living in Shanghai, China with her grandparents.
Having reviewed the departmental record and included biometric evidence the Tribunal accepts that both applicants are Chinese citizens.
Applicant
The applicant was educated in China until 2011 when she came to Australia – although her original application indicated that she was still enrolled at [College 1] in Shanghai in September 2012. In her oral evidence at the hearing, the applicant stated she completed high school in China, then attended an international school in China for [number] years. She stated that she never worked in China and was only a student.
The applicant’s movement immigration history
The applicant has an extensive and complex history of visa applications, grants, refusals and associated arrivals and departures into Australia. She has entered Australia on 17 occasions over a [lengthy] period starting in [specified year]. She has applied for twelve substantive (non-bridging) visas, including a [tourist visa], student visas (TU-573, TU-572), a temporary skilled work visa (UC-457), three employer-sponsored visas ([specified]), a visitor visa (WB-020), and a protection visa (XA-866).
The applicant’s first visa was a [tourist visa] granted in [year]. Between 2011 and 2014, she was granted successive TU-573 and TU-572 student visas. In 2014, she was granted a UC-457 temporary work visa. Between 2017 and 2018, she lodged three ENS visa applications. Two of these were withdrawn after the associated nomination was refused, in October 2017 and August 2018. The third was refused in August 2019. She lodged two applications for merits review with the Administrative Appeals Tribunal.[1] One resulted in a finding that there was no reviewable decision; the other was affirmed. [In] July 2020, the applicant applied for Ministerial intervention under s351 of the Act, which was refused [in] April 2021.
[1] AAT Decisions, 1915807 and [number deleted.].
On 14 May 2021, the applicant lodged an onshore protection visa application (subclass XA-866). That application was refused on 19 January 2024 on the basis that s 36(2) was not satisfied. She lodged the present application for review with the AAT on 12 February 2024, which became a review to this Tribunal when it replaced the AAT.[2]
[2] By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The applicant originally lived in Sydney, NSW, but currently lives in a village south of Hobart, Tasmania, where she operates a [business 1]. The applicant has not worked in the fields of her [study].
The applicant’s family
The applicant married another Chinese citizen in 2020, who was born in [year] in [a named town], China. The applicant told the Tribunal that her husband is applying for a [visa] in relation to the same [business 1] she operates in Tasmania.
The applicant’s husband has departed and re-entered Australia seven times. Department records indicate that he has applied for at least ten substantive visas in Australia since September 2014. They include: Higher Education and Vocational Education student visas (TU-573, TU-500), a post-study work visa (VC-485), a visitor visa (FA-600), and a [skilled visa] as a family member. In addition, he has been granted at least eight bridging visas. He separately made a TU-500 Vocational visa application in October 2024, in which he was the primary applicant, but that was withdrawn in March 2025. His visa applications have included joint or dependent applications with the applicant and their children.
The applicant has two children, both born in Australia. At the time of the hearing, her daughter was [age] years old, and her son [age]. The applicant’s daughter is included in the applicant’s protection visa application as the secondary applicant. The applicant’s son is not included in the protection visa application, and the applicant told the Tribunal he was included on his father’s current skilled nomination visa application.
The applicant explained to the Tribunal that she sent her children to China due to visa difficulties and that they now live with her mother and mother-in-law "in my property in Shanghai, China”. The applicant said that her daughter was sent to China approximately "around, like, a year" prior to the first hearing, and her son was sent "around six months" prior, meaning that he was "[age]" when he returned.
Secondary Applicant
The secondary applicant was born in Australia on [date] and is the daughter of the primary applicant. By operation of regulation 2.08 of the Migration Regulations 1994 (Cth), she was taken to have lodged a protection visa application (subclass XA-866) at birth. She was granted a Bridging visa E shortly after birth.
Secondary applicant’s immigration and movement history
On 17 November 2023, the secondary applicant was formally added to the applicant’s protection visa application and granted an associated bridging visa. On 2 January 2024, she was granted a tourist visa (subclass FA-600), which ceased on 14 March 2024. She departed Australia [in] February 2024 and re-entered [in] March 2024. On 13 March 2024, she lodged a further onshore tourist visa application and was granted a Bridging visa A. She was granted a second FA-600 visa on 16 May 2024, which ceased on 16 August 2024. She departed again [in] June 2024.
On 3 June 2024, the secondary applicant was included as a dependent applicant in an offshore application for a Student Subsequent Entrant visa sponsored by her father. That application was withdrawn on 11 October 2024. She lodged three subsequent offshore tourist visa applications on 3 October 2024, 4 February 2025, and 21 February 2025. All were refused. She was also listed as a dependent on her father's Student Vocational Education and Training visa application (TU-500) lodged on 4 October 2024, which was withdrawn on 8 March 2025.
The secondary applicant has held two substantive visas, two tourist visas. She has had four offshore visa refusals and has exited and re-entered Australia once.
At the hearing, the applicant gave evidence, which the Tribunal accepts, that the secondary applicant has been offshore since [June] 2024 and has not returned.
Evidence before the Department
The applicants’ departmental file is extensive and, in addition to departmental records, contains a range of claims, submissions and documentary evidence, including supporting letters and photographs to corroborate their claims and articles about Christianity in China. The Tribunal includes or summarises the relevant materials here, but for the avoidance of doubt has read and considered the applicants’ entire Departmental (and Tribunal) file.
Original application
In the applicant’s original application she attached a letter, made on 14 May 2021, stating the following:
“I am applying for Protection visa and I have the following reasons:
I am from a religious family. My mother believes in God. Influenced his parents, my husband is also a devoted Christian follower. I was baptized at [Church 1] at … on [a date in 2020].
As a Chinese citizen and a religious follower, the religion situation in China often comes to my attention. I have read a lot of reports from internet and become aware that in China all churches have to be registered in government offices to be legal in China and once they are registered, they will be under the management of these government offices in some way. They have to prove that they are patriot churches and support the Chinese Communist party by abiding by all policies and laws stipulated by the party and its government. In this way, all legal churches in China have become half Christian and half communism.
Of course there are a lot of family churches that don't want to register in Chinese government. They study the bible and worship the God at home. They will be arrested, sentenced and imprisoned once their activities are found by the police.
If I went back to China, I would have three options:
1. To be a fake follower in a registered church;
2. Abandon my belief;
3. To attend an underground church and be at a risk of being persecuted by the Chinese authorities at any time.
I cannot accept the first two options and I will naturally fall into the fate of option three.
I have a fear of retuning China because I will be persecuted by the Chinese authorities for religious reasons. I am applying for protection visa so that I can pursue my religious belief safely in Australia.”
On 23 July 2021, the Department sought further and better particulars about the applicant’s claims pursuant s 56 of the Act. The applicant replied in a translated letter dated 08 August 2022 (s56 reply) as follows:
I have the following answers to the questions you raised in your letter:

I didn't lodge my protection application until May 2021
My application is on the ground of religion. I was baptized by my church on [a day in] 2020. I didn't have religious belief before that. I lodged my protection application in May 2021 and there was five months of bible study in between
The last time I went to China was [in September] 2019 and it is almost 3 years

In regard to China's airport control and that I am not a person of concern by the Chinese authority
I have not been persecuted by the Chinese authority by now and I didn't claim in my application that I had ever been persecuted in China
In regard to the details of my religious involvement in China
I never attended the Christian Church in China neither did I claim in my application that I had attended it in China
I was not baptized by my Australian church as Christian follower until [a day in] 2021

In regard to my Christian activities in Australia
I was baptized by my [location] Church in the end of 2020 land started attending their activities
My husband and I go to church every week and study bible knowledge
We also attend the group fellowship and devotion
My husband and I moved to Hobart on 11/07/2022 to seek better development opportunity there
Our friend referred us to a Hobart church before we left Sydney. Now we are worshiping in the new church and attending activities to do with the new church
In regard to my fear of returning to China
As I claimed in my application before that my fear of China is against future
There will be three situations about my religious belief if I return to China

·To engage in religious activities under a fake belief in a church registered with the government
·To give up my religious belief
·To attend a underground church for a genuine belief with a risk of being found out and persecuted by the Chinese authorities at any time

There are huge volumes of information on internet to prove that all churches in China have to be registered with the relevant government office. They must be patriotic and to be patriotic is to be loyal to the Chinese Communist Party (CCP), the proof of being patriotic is that the religious followers must study the policy and propaganda of the CCP and these policies and propaganda is usually contradicted with their religious doctrines
Information on internet also proves that there exist a lot of underground churches in China and they are illegal and will be abolished and persecuted in different extents
So my worry and fear of returning to China is well founded

My husband and I are currently living at …Tasmania, We moved in on 11th July.
… I gave birth to a daughter recently, which is a little of change of circumstance. I guess I should inform the Immigration and I will apply for a bridging visa for her …”
On 27 April 2023, the applicant changed her representative. The new representative provided lengthy submissions on behalf of the applicant, which are dated 27 April 2023 on the departmental file. The delegate helpfully summarised those submissions – which the Tribunal has separately read – which the Tribunal considers accurate and appropriate, as follows:
“The applicant comes from a religious family. Their mother and husband are of Christian faith and believe in God.
The applicant became a Christian in recent years, after coming to reside in Australia. They were baptised [in] December 2020 and have been actively participating in religious activities since then, including weekly mass, Bible studies and other church services with their husband. After moving to Hobart, the applicant continues these activities with their new church.
Though the applicant was baptised later in life, their Christian identity and beliefs are genuine, deeply held and indispensable to them. If they were forced to give up or alter their beliefs, it would be a devastating betrayal of their innermost values.
The CCP harshly persecutes and discriminates against Christians in China.
To give up on their Christian identity and beliefs, or to practice the unauthentic and ‘Sinicised’ version of Christianity endorsed by the CCP are both unacceptable to the applicant.
The applicant’s mother is a Christian, meaning that the applicant has had a constant exposure to Christianity throughout their life. A reason the applicant never identified as a Christian while in China was that she never felt comfortable or safe enough to do so under the tight surveillance of the CCP. It was only after coming to Australia and meeting her husband that the applicant was able to connect with their Christian identity.
The applicant’s Christian beliefs and church activities are a fundamental part of their relationship and life with their husband. The applicant’s faith is a major source of personal strength and comfort.” [mistakes in original]
The interview
The applicant was interviewed by a Departmental officer on 11 January 2024. The interview was predominantly conducted as an English conversation with a Mandarin interpreter assisting where requested or required.
At the interview, the applicant told the delegate that she was seeking protection in Australia because she feared that she would not be able to freely practice Christianity if returned to China. She stated that since the COVID-19 pandemic, she had heard of greater restrictions on church attendance and was concerned about Christians being infected at church gatherings and subject to questioning. She also said separately that she feared her daughter being precluded from religious ceremony and observance, but also gave evidence that her daughter did not yet have a religion and should be given the right to choose for herself.
The delegate asked the applicant what had motivated her to become a Christian, and the applicant provided two separate, interlinked narratives. The first was about her introduction to Christianity by a family friend while she was on a personal a voyage of spiritual discovery in 2017. She told the delegate (in English):
“When I'm here, I know one prayer [lit] is my mother's friend, so [in] 2017 I go to the church and I serve … food. So, like, I think about, like, three years, and know about the Christian, then I become a Christian
…
When I started attending church in 2017. My friend is a prayer [lit]. So, he brought me to the church. I just go to church … from 2017, sometimes once a week or twice a week, I go to Sunday's church to know new friends … then I converted myself into a Christian. I noticed that many people convert themselves from Buddhism to Christianity. I was very interested in that transition, and then I was studying research on why they convert themselves from Buddha … I [was] also experiencing the struggle between Buddhism and Christianity. I did some research and noticed the evidence I was looking for: the difference between the two different religions.”
In a separate narrative account, the applicant (in English) identified the meeting of her husband as the “critical time” for her conversion:
“[in English] Just like before getting married, I just thought I had to go back to China, that moment. So that time I [was not] Christian yet. So, I had to find a husband. So that time, I just kneel down and prayed to God: ‘If you are the real God, please give me a husband’. So, give me a man … let me get married before I'm 30, because in China, if you are 30 years old, you are not getting married. Then the miracle happened …
[interpreted from Mandarin] my mother met my current husband in a church … my mum introduced him [my husband-to-be] to me, so he is my husband. It’s a miracle that after I pray for God to give me a husband after one month, then my husband appeared …. It was a magical time. In that time, I got a husband, it was even not more than 31 years old. That's a critical key time. Then I believe that's the evidence given by the god. I must believe in God and pray to God and worship God.”
The delegate asked if the applicant had been baptised into a denomination of Christianity. The applicant appeared to have difficulty with these terms in both English and Mandarin. The discussion proceeded as follows:
[Delegate] Were you baptised?
[Applicant in English] Sorry, can you say that again?
[Delegate] Were you baptised?
[Applicant in English] Can you let the interpreter … translate this?
…
[Applicant in English following interpretation] Did I get the right question?
[Delegate] Yes, were you baptised?
[Interpreter] She does not know what baptised is in Chinese.
[Delegate] Okay.
[Applicant in English] Is that mean I just kneel down and say I believe Christians, that means like that?
[Delegate] Did you … was there like a ceremony where you were …?
[Applicant in English] Yes, I do the ceremony … after I get married [a day in] December 2020, I think I become Christian, at the ceremony.
…
[Delegate]
and, and what denomination of Christianity is it? …
[Applicant (in English)] Denomination?
[Delegate] What kind of Christian are you normally?
[Applicant (in English)] Normally, I think I just, I want to serve for the church. I like to like…
[Delegate] Sorry … I’ll rephrase that … what type of Christianity is it?
[Applicant (in English)] What type of Christianity is it? You mean what … type of Christian am I … is that?
[Delegate] What type of Christianity do you practise?
[Applicant (in English)] Yeah, I believe love. I believe …
[Delegate] Okay, interpreter, can you interpret this one?
[Interpreter] She said it is not Catholics, but it is the thing I believe the Jesus Christ and it is the thing similar to the one is called the Protestant.
…
[Delegate] So similar to Protestantism, is that correct?
[Applicant interpreted from Mandarin] Yes, I am Protestant.”

The applicant eventually confirmed that she attended various denominations of churches in Sydney and then Hobart. Her main concern with the church she attended was whether they had a Chinese community and Chinese language services. Asked what she did at church, she explained (in English) as follows:
“I go to the church weekly with my husband, and that time I don't have my daughter yet, so I just have to prepare some food for the church. For the people like that, they often go to the church. So, for the older people like that, we prepare some food. I like cooking. So, I enjoy sharing the food with the patients [lit], and also, we join the group meeting every Sunday after Sunday's prayer. So, we go to my cousin's family to have all the two meetings. We join the group. We discuss about the Bible, and we share the good food and talk about something that was happening recently. So how can we solve the problem? Maybe, after we read the Bibles, what do we think and what would we like? So how can we like to learn more about the Bible, something like that. Yeah, and like, if we go to the church, it's our Christmas [lit], we have, we will have a big group meeting, and we have a lot of food and discuss about the Bible. And some people will dance for the Christmas [lit]. It's really heavy to go to the church every week.”
In another part of the interview, the applicant recounted group meetings, social events, and sporting events, including badminton. She provided examples of her involvement in church life, such as preparing food for elderly members and helping organise gatherings. The applicant said she read the read the bible daily and stated (in English) that:
“Every day [I] read the Bible for several paragraphs and several sentences, so it makes sense to me what I should do today? So maybe I have something annoying today, so I read the Bible, and then I can know how I should do it, and God will say something to me, so I can know what I should do in the future, or what I should do so everything has to hear about what God says, and then you can do everything, like good and success.”
The applicant told the delegate that she was not involved in public preaching but does share her faith with others in her personal circle.
The applicant was asked by the delegate why it was important for her to become Christian, and she stated (in Mandarin): “because we are creatures created by God; God created the man, and we were part of man, so we believe in God.”
The delegate separately asked her if she could talk about the “apostles of Christianity”. The applicant (in English) said she did not understand and after a discussion in Mandarin with the interpreter said told the delegate that she could not hear the interpreter clearly. Having reviewed the recording the Tribunal notes there was no obvious audio degradation at that point of the recording and both parties appear to be speaking at a sufficient volume to be heard and understood. The interpreter explained to the delegate:
“I think she does not know this concept. I think she does not know the concept of this word. [She asks] Can you tell me about the meaning in Chinese? But she does not know the word [or] the concept of apostle.”
The delegate instead asked the applicant to describe the importance of Easter, and the conversation proceeded as follows:
“[Applicant in English] You mean the one Jesus died and after three days, Jesus just alive, [is] that the one?
[Delegate] Yeah. Can you tell me more about that?
[Applicant in English] Ah, the Bible is a lot, so for that part I just know that Jesus died and then yes …
[Applicant interpreted from Mandarin] Jesus resurrected 3 days after he died, so this holiday is to remember the day when he was revived … he suffered the death for human beings, instead of us …
[Applicant in English] Telling … more is like …[that is] just all I know [about] this part of the Bible, I just can’t know much clearly. Oh, I know this part of the Bible. Just can't know much clearly. So, I just can't know what Jesus died. And after three days, Jesus alive and died for us.
[Delegate] Yeah, okay, so what happened after Jesus's resurrection?
[Applicant interpreted from Mandarin] Jesus brought 12 disciples and gave five loaves and two pieces of fish to let humans to enjoy and turn his blood into wine and let people drink.”
Asked by the delegate about how long her husband had been a Christian, the applicant said she did not know, but it was “when he came to Sydney” but “I'm not sure which year he came to Sydney”. She confirmed that her husband was a Christian when he met her.
The applicant was asked about her mother’s conversion to Christianity, and she said that she didn’t know the exact details: “I don't know which year …I think it’s a long time. I'm not sure” and when pressed to be more specific said: “I think five years, six years, something like that. I'm not sure exactly of the date. I'm not sure, but I just know it suddenly changed to the Christian [religion].” The Delegate asked how her mother practiced Christianity in China, and the applicant said, in Mandarin:
“My [mother] can only attend the government-authorised church. My [mother] is not allowed to participate in any family group at all. If she is found participating in any family group, she will be arrested by the police or sent to a special course to learn loving China, and they use [a] political course to educate her.”
The delegate asked the applicant about her daughter’s religion, and she answered: “My daughter had her baptism when she was [age] old. However, I gave her the choice, let her choose.” In relation to the rest of her family, the applicant said: “My mum is a Christian, my father just [doesn’t] … believe, and my mother-in-law and father-in-law [are] Christian”.
When asked what she feared would happen if she returned to China, the applicant stated:
“So especially my daughter can't go to the church. Even we can't have family food meetings like talking about Jesus. So especially in Shanghai, or some of the news like that, someone just like, goes to the gaol or something happens, because then you have to, like, love China first and then talk about Jesus. But in the Jesus book, we have 10 laws, like, you have to love God first and then you love something else. So, I think it's obeying the rules for the Bible like that, yeah, something like that. So, I just yeah, not like pure Christianity. Back to China.”
The applicant told the delegate that she believed that if she returned to China, she would be restricted to attending state-sanctioned churches like her mother. She explained that the state-approved churches are not comparable to churches in Australia because they are subject to supervision and must be loyal to the Chinese Communist Party. The applicant also pressed her claims about fearing infection from coronavirus when attending churches in China.
When asked about the timing of her protection visa application, the applicant told the delegate that she did not apply earlier because she was still learning about the protection visa process, was unsure whether she needed one, and was considering returning to China before meeting her husband and deciding to stay. She also referred to discussions with her migration agent at the time.
The delegate put to the applicant that an email from her agent in July 2023 referred to her (as a parent) planning to leave Australia. She denied planning to return to China and stated that she wants her children to grow up in Australia, attend church regularly, and receive a Christian education. She said that her husband is applying for another visa and, even if he were to return to China, she would not accompany him.
The delegate further asked why her husband—also a Christian—had stated in his own visa application that he intended to return to China, and whether that undermined her own claimed fear. The applicant reiterated that she would not return to China and said that she wishes to stay in Australia permanently to raise her children as Christians.
Post-interview submissions
Following the interview, the applicant provided a bundle of documents, including identity and baptism certificates. The full list of documents is set out in the Delegate’s decision and having reviewed the departmental file the Tribunal confirms this is a correct list. The applicant also provided reference letters from Christian pastors and church members, attesting to her regular attendance at services, involvement in fellowship groups, and contributions to worship and community activities. The photographs were taken at different times and locations and included her baptism, church gatherings, and group functions.
Primary decision
The application was refused on 19 January 2024.
In their decision, the delegate expressed doubts about the applicant’s conversion to Christianity but accepted for the purpose of the application that she was a practising Christian. However, after reviewing country information, the delegate was not satisfied that the applicant faces a well-founded fear of persecution for reasons of religion if returned to China, as required by s 36(2)(a) of the Act.
The delegate found that the applicant is not of adverse interest to Chinese authorities, has never practised Christianity in China, and would be able to attend state-sanctioned churches or worship privately without facing persecution. The applicant’s fear of contracting coronavirus upon return was also found not to engage any grounds for protection under s 36(2)(aa), as there was no evidence this would amount to significant harm.
The delegate concluded that that the applicant did not meet the criteria for protection under either s 36(2)(a) or (aa), nor as a member of the same family unit under s 36(2)(b) or (c).
The Review Hearings
The primary applicant appeared before the Tribunal on 16 April 2025 and 1 May 2025 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant chose to speak both in English and Mandarin. Quotations included in this decision do not distinguish between whether the statement was made directly by the applicant or via the interpreter unless specifically stated otherwise.
The applicants were represented in relation to the review, but the representative did not appear at the hearings.
For simplicity both hearings are referred to as “the hearing” unless there is a reason to describe them separately.
At the first, the applicant was asked if she completed her original application and attached claims. She said that she recalled writing a letter, although not its specific contents, and that maybe her migration agents had assisted her with it. The Tribunal also noted that the applicant had undergone a departmental interview in January 2024, but the applicant said: “maybe I forgot this one”, meaning that interview. The Tribunal explained that if it was able to rely on that interview, it would not have to ask her the same questions again, particularly about her faith, but she said she could not recall the interview, but later appeared to have some recollection, stating: " I probably won't be able to remember, like all the details".
Given the applicant could not remember preparing preceding materials or participating in the interview, the Tribunal stepped her through the application, her background details, and her claims over two separate hearings. The details of her personal background, which the Tribunal accepts as factual, are set out above.
Asked why her son and husband were not joined on her protection application, the applicant said: "because my husband has a legit visa here in Australia, so my son is actually joining his visa”. When asked why her daughter was on her application and her son on her husband's, the applicant explained this was linked to her husband's visa status at the time of her application, stating her daughter was " following my case for my visa." The applicant stated the intention is to bring the children back permanently to Australia "if my husband's 190 Visa got approved by the Department," although she noted her daughter is not included on that specific visa application.
The applicant was asked why she sought a protection visa. She provided various answers, but eventually agreed that her fears could be articulated as, first, not being able to practice her religion freely in China, and second, not being able to raise her children as Christians in that country.
The applicant’s personal religious claim
In respect of the restriction on her personal religious practice, the applicant stated: "I fear returning to China because, as I am a Christian and China is an atheist, communist country."
The applicant was asked how she became a Christian given that she was raised without religion but with cultural Buddhist roots. She told the Tribunal that the process had occurred over a seven-year period following her mother’s conversion to Christianity in Sydney in 2013. She said that, while her mother was visiting her that year, and that: “after just one day in Sydney, she suddenly decided to go back to the baptised and converted from Buddhism to Christianity. It was a complete shock to me”.
The applicant said her interest in Christianity began immediately after her mother's conversion:
"It all started from the day that my [mother] was formally converted to Christianity. I started regularly attending church activities to learn about Bibles and the Christian culture. However, I didn't want to rush into making the decision to become a Christian myself."
The applicant told the Tribunal this was [Church 2] in Sydney and identified it as a "Protestant" church.
The applicant said that she began visiting the [Church 2] because there was a Chinese community there, she enjoyed the atmosphere and "started to like Christian culture." She also mentioned participating in activities there, including providing food. Asked to confirm what year her church visits began, the applicant stated: “from sometime in 2013" onwards. On her evidence, she did not officially convert for some seven more years, specifically when she married a Christian man in 2020.
The applicant stated that she "decided to convert before I got married, because my husband is a Christian, so I want to have my way in front of God. So that's why I decided to become a Christian." When asked if she converted to marry, she clarified, "I believe in Christianity, so that's why I would like to be converted into a Christian. It wasn't because of the marriage, even though my husband is a Christian."
The applicant also later referred to meeting her husband as "the gift of God that I met, my husband and I convert to Christianity." She described a specific prayer or wish she made: "three months before I got married... three months before I even met my husband. I prayed to God, and I said, if you are the true God, then I want to get married before I turn 30 years old. If you can grant me this wish, I will keep my promise. I will be baptised, and I will follow you." She stated she met her husband "like two weeks after I made the wish."
The applicant said that a family friend living in Sydney who had lived in Australia for over 20 years introduced her to her husband-to-be: “[they] invited me out for a meal at that time. That friend intended to introduce me to my husband to be, but I was, I had no idea about this [intention]." Her husband to be also "wanted to get married," and they mutually considered the other to be a “perfect match”.
The applicant said that, at the time she met her husband-to-be, “my mother, my father's idea is for me to [return] to China", but that her mother was very happy she had met a Christian man. However, both parents were surprised at the pace with which the couple decided to marry (around 3 months after meeting) and inform her parents (around one week before the wedding). However, she said that her mother was: "completely on my side, so [she] persuaded my father... into supporting my marriage." Asked if her parents had attended her wedding, she said they had not because of the coronavirus epidemic.
The applicant married her husband on [a day in] December 2020, and received a baptism certificate a week later [in] December 2020. This timeline would place her prayer “wish” for a husband around September 2020 and meeting her husband around October 2020. The applicant said she then took part in a conversion ceremony:
“So, the conversion ceremony involved kneeling on both knees and … swearing on all before the God and the pastor and I re-offend; my commitment to become a new person.”
The Tribunal asked if this ceremony was recorded in the baptism certificate which she had provided to the Department, and she agreed it was.
The applicant told the Tribunal that she attended the [Church 1] [3] and at a different time the [Church 2] ([specified]denomination[4]) in Sydney. Following the family move to Tasmania, the applicant attended different churches, including [Church 3] ([specified] denomination[5]), [Church 4] ([specified] denomination), “[Church 5]” (unknown, may refer to a [specified] denomination in [the same town] Tasmania[6]), and [Church 2] ([specified] denomination[7]). The applicant said the choice of church was based on where the family in was living and whether the church had Chinese-speaking members and services.
[3] [Source deleted.]
[4] [Denomination details deleted.]
[5] [Denomination details deleted.]
[6] [Church details deleted.]
[7] [Denomination details deleted.]
The applicant gave separate evidence that she has attended church services and study on a weekly basis and separately that she attends “off and on” depending on her childcare and other commitments. Asked what her ongoing involvement involves, she said it was attending worship and a ministry and service role, which she said predominantly involved providing food for the [church].
When asked about the important parts of the faith that led her to convert on faith grounds, the applicant quoted John 3:16 and stated she wanted to “have an eternal life", which she said would happen if she followed "10 things that you must not do," stating (unprompted): "I can't remember all 10 of them, but I can recall, I think, six or seven of them," listing some examples: "do not think about your neighbour’s wife, do not think about your neighbour’s property, be honoured and you need to be faithful and you need to take care of your father and mother, things like this”.
Nothing that the applicant had said she attended “New Testament churches”, the Tribunal asked what those churches teach that is important to her. She replied that “the first and the most important thing that I've learned from those New Testament church is that God is the one and only true God”. When asked what from the New Testament gives her conviction, she spoke about the belief in the Holy Trinity: "the Father, the Son, and the Holy Spirit, those three are actually one, and this is, this is Jesus." She stated that attending church "actually purifies my heart," and apart from avoiding sin, there is a concept of virtues to practice "like love and loyalty." She stated these teachings guide her interactions and that talking to pastors helps with "spiritual voice" and finding "inner peace." She acknowledged "I'm still learning, and I sometimes may not be very familiar with every chapter and every verse of the Bible."
When asked if she brings her faith home, the applicant stated that before every meal, she and her husband "always pray," stating: "this is our Christian practice that we speak to God before eating." She also stated that because they need to attend church every Sunday, they "choose to close our [business 1]," so their [business 1] "does not open on Sunday noon." She stated, "Going to church is a very important part of our lives, and also including making offerings."
The applicant stated her mother, father, and parents-in-law know she is Christian. She stated her mother-in-law and father-in-law "also choose to be baptised and become Christians after witnessing so many testimonies through my husband," and that her mother and mother-in-law "are aware of my Christian faith, and they are quite supportive." When asked which churches her parents and parents-in-law attend in China, she stated that currently her parents and mother-in-law are in Shanghai caring for her children and "are [not] able to attend any church services, because children are not allowed to enter churches”.

Regarding the situation for Christians in China and the basis for her personal fear, the applicant stated that, based on her knowledge, churches must be registered and are under government management. She testified that teaching in China is "not so pure" because "everything is under control of the government." She stated that preachers making "bad remarks against it" are "not permitted in China." She expressed concern that she "can't find a good way so I can hear like the good pure teaching every Sunday in China," which is why she was worried.
When the Tribunal questioned why her internal belief could not be pure if she could attend churches and read scriptures in China, the applicant responded that because "everything is under control of the government" the content of preaching cannot be “pure”, thus affecting her ability to receive free and open religious instruction.
The Tribunal explored whether regular church attendance was mandated by the applicant's faith or scripture. The applicant responded by referencing Genesis, stating that in the first six days, people need to work, but on the seventh day, they need to "take a rest and not work and go to the church." When the Tribunal questioned how Genesis could mandate attending Christian churches as it predates them, the applicant replied: "we need to attend the church, because the more people pray, the more strong the power." She also mentioned her practice of contributing 10% of her wage to the church every Sunday. She stated that she believes attending church is required because it is the bridge to God.
The Tribunal questioned the applicant about whether her concerns amounted to persecution, asking why needing to register or the perceived impurity of teaching constituted serious harm. The applicant agreed that it was not:
“I’m not saying about persecution. I'm just saying that I am a very strong believer of the Trinity... and this is my only belief the Trinity … and in China there is the [CCP] that governs. So, it just makes this belief not so strong, not so pure."
The Tribunal put to the applicant that religious leaders are also regulated in Australia, including in respect of speech laws such as hate speech or sedition. Noting that religious leaders in both countries may not be entirely free to say whatever they like, the applicant was asked why she feared the Chinese form of regulation. She replied: "the freedom of speech is different between the two countries," and that, in China, speech is "more cautious" and sensitive words are "not permitted." She maintained her concern was being unable to hear pure teaching.
The Tribunal put country information to the applicant indicating that a significant percentage of Chinese people are Christian and practice various Protestant denominations, suggesting this demonstrated an ability for her to attend church. The Tribunal noted that this suggested that Christians were not persecuted in China and the applicant replied: "I think I don't have that [level of] serious persecution."
The applicant stated she did not think the Chinese authorities knew about her baptism or her Christian activities in Australia because she participated in them here and does not need to report them. She stated she has not sought to convert Chinese nationals in China recently as she has not returned for five years but has tried with friends in Australia. She stated she is currently learning Christianity but also participates in service roles if required, such as providing food for the church.
The applicant stated that her most important concern is to "have pure belief, religious belief, and whether I can learn about Christianity and learn the genuine, the pure Christianity."
The applicant’s claim about her children’s religious upbringing
In respect of the restriction on her children’s practice the applicant said that she would experience harm in China because “my children cannot attend church because they are minors, and my daughter has already been baptised, but my son is not and he cannot come to Tasmania”. Separately she explained: "my daughter cannot go to church with me before she turned 18 years old, [which] is a requirement that will be posted on the door of the church everywhere in China."
Regarding her children’s connection with Christianity, the applicant referred to a baptism certificate, which was on the departmental record recording her daughter being baptised [in] 2022, when the child was [age]. The applicant stated her son "is not baptised," noting that because he returned to China at [age], "he hasn't got an opportunity to be baptised yet."
When asked if children are currently instructed in Christianity in China, the applicant responded, "I don't think they [her grandparents] had an opportunity to teach" the children because minors are not allowed in church and there are no Christian schools. When the Tribunal asked if the rule was specific to Christianity, she agreed it was not. The Tribunal put to her that the regulation appeared to be based on a general state educational policy for children, and that children can become Christian and attend church when they reach majority. The applicant acknowledged it is the law, but reiterated, "I want my children to attend the church before they turn 18, because they can learn better about Christianity." The Tribunal suggested this sounded like a preference for Christian schooling rather than a matter which was critical to the exercise of her faith. The applicant responded that in China, children under 18 are taught an atheist view and "cannot be in contact with Christianity" arguing that without “pure” religious instruction from childhood, they cannot be free to choose.
Asked if the children were or could be given religious instruction at home, the applicant stated that:
“I'm not sure if I can teach privately my children at home. I'm not sure if it's permitted or not. And another thing is that what I told is differently, different from what professional priesthood. So, I am afraid that I may not be a very accurate source for my children. And I want also if my children became… future priests, I think it's better for them to grow in a Christian environment. And if again, I'm forced to go back to China, I will work hard and send them to in a country where there's freedom of belief and freedom of speech”
When the Tribunal asked how this situation caused harm to her, the applicant stated: “it’s just an education problem in China that haunts me." The Tribunal asked the applicant whether she considered this to amount to serious harm or persecution and she said: “I think I don't have that serious persecution. And as I said in the regulation, the Chinese regulation, the growth was not so fast and the content not so pure, and as I know, it is not possible to teach minors about Christianity at home, and this is all”.
Issues and concerns arising from the applicant’s evidence
The Tribunal raised several concerns arising from inconsistencies in the applicant’s evidence and gave her an opportunity to respond to each.
The first concerned the timing of her interest in Christianity. At the protection visa interview, the applicant stated: “I noticed in that from 2017 many [people] converted to Christianity… I experienced struggling, and I made some research. I didn’t go to church at that time, and I was not Christian.” However, before the Tribunal, she said that her mother converted in 2013 and that she began attending church at that time. The Tribunal put this inconsistency to the applicant, who acknowledged the earlier inconsistency and said that any misunderstanding was the result of poor transcription or poor recall. The Tribunal has listened to the entirety of both the interview and hearing and notes no problems with the recording and that respective dates and evidence relayed in both were clearly stated and precise.
The Tribunal also put to the applicant that she had given inconsistent accounts of who introduced her to her husband. In the interview, she said her mother had met her current husband at church and introduced him to her. At the hearing, she had told the Tribunal that it was a family friend – known to her mother for 20 years – who had orchestrated a dinner party introduction. When asked to explain the change, she said she was unsure about dates and may have confused the details, but that her mother and the friend were closely associated, and the introduction occurred through them.
The Tribunal raised the issue that the applicant had claimed to have been learning about Christianity since 2013 but appeared to have a limited understanding of the religion despite claiming weekly involvement with it for over a decade. The applicant said: “Before, I attended activities organised by the church, but there was not much content to learn… I started learning about the Bible and listening to God’s word only later.” She also said she had explored the differences between Buddhism and Christianity and initially did not make a commitment to the Christian faith.
The Tribunal noted a discrepancy between the applicant’s statement to the delegate that her daughter should be given freedom to make her “own choice” about her religion versus her claim at the hearing that her daughter must be instructed from childhood in the “pure” Christian tradition. The applicant replied: “It is knowledge that allows children to choose what they want… and if there’s no knowledge about the stuff, how can they become Christians?”
The Tribunal also asked why the applicant’s son had not been baptised and was not included in the application. The applicant replied: “I didn’t baptise my son because we changed the church at the time… we were not familiar with that church… and when we became familiar… there was a visa problem… so this is the reason why he wasn’t baptised at the time.” She further explained: "my son’s [application] follows my husband's visa, which is very highly probable … will be granted soon, and so my son will have more probability to stay abroad [lit]”. The Tribunal took this to mean “return from” overseas.
The Tribunal questioned why her husband, also a Christian, and parent to their children had not applied for protection if the concerns about their children were shared. It highlighted that the divided applications may suggest the family were pursuing different visa pathways rather than having consistently shared fears. The applicant replied that her husband’s application "does not have any relation with me," and she "just follow[ed]" him to Tasmania. She stated she “would rather stay in Sydney." The applicant did not otherwise address the Tribunal’s concern.
Finally, the Tribunal put to the applicant that her conversion appeared to follow a long history of unsuccessful visa applications, and that she had married within three months of meeting her husband before lodging her protection claim. It raised the concern that the conversion may have been for migration purposes rather than as a genuine expression of belief. The applicant said: “Before I met my husband, I wasn’t a Christian… I started thinking of selling the property in Australia and going back to China… but after I met my husband, I had the honour to become [a] Christian.” She added: “I must say that my belief is pure… I already declared in front of God that I am becoming… I’m a new person… I cannot accept people saying that my religion is not pure.” The applicant did not otherwise address the Tribunal’s concerns.
CONSIDERATION OF CLAIMS AND EVIDENCE
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) 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 fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
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.
The Tribunal’s fact-finding role
In assessing the credibility of an applicant's claims, the Tribunal must make findings of fact in relation to each claim and its integers. This process necessarily takes places within a statutory framework that places the onus on the applicant to establish that they are a person in respect of whom Australia has protection obligations.[8] At the same time, the Tribunal must remain alert to the inherent difficulties faced by applicants who may have fled their country of origin, or who are required to recount experiences of harm, including the effects of trauma, cultural differences, language barriers and the passage of time.[9] Given these factors may affect the applicant's ability to produce documentary or other evidence to substantiate their claims there is no legal requirement that those claims must be corroborated to be accepted by the Tribunal.[10] However, that does not mean that the Tribunal must uncritically accept claims or evidence that it considers implausible, manufactured or otherwise unreliable.[11] Rather it is the role of the Tribunal to assess the veracity of each claim in light of the material facts before it.[12] A reasonable approach to credibility must be adopted, taking into account the totality of the evidence, the particular circumstances of the applicant, and the country information available applicable to it.[13]
Mandatory considerations
[8] Migration Act 1958 (Cth) s 5AAA; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570.
[9] MIAC v SZRKT [2013] FCAFC 80, [79]; MIEA v Wu Shang Liang (1996) 185 CLR 259, 291; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1992, [196].
[10] MZXRY v MIMA [2006] FCA 1475, [11]; Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[11] Randhawa v MILGEA (1994) 52 FCR 437,451.
[12] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[13] MIAC v SZGIZ [2013] FCA 427, [42]; MIMA v Rajalingam (1999) 93 FCR 220, 224.
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.
REASONS AND FINDINGS
The secondary applicant is outside of the geographic jurisdiction of the Tribunal; that is, she is offshore at the time of the decision. As this is a dispositive issue the Tribunal deals with the secondary applicant’s status before considering the primary applicant’s claims.
Secondary applicant
The secondary applicant, the primary applicant’s daughter born in Australia on [date], seeks this visa as a Member of the Same Family Unit (s 36(2)(c)). However, the Protection visa (Subclass XA-866) is an onshore visa requiring, as a fundamental criterion under Regulation 866.221, that the applicant be physically present in Australia when the decision is made. The relevant arms of s 36 also require that an applicant be “in Australia” at the relevant times.
The Tribunal finds, based on all the evidence before it, including departmental records and the primary applicant's testimony, that the secondary applicant has been continuously outside Australia since [June] 2024.
As she is offshore, the secondary applicant fails to meet the mandatory time-of-decision presence requirement prescribed by the Act and Regulations. This failure is dispositive of her application for this visa subclass. Consequently, regardless of the primary applicant's claims, the secondary applicant cannot be granted this Protection visa. The Tribunal finds she does not meet the criteria for the visa.
Primary applicant
The principal issues requiring determination are, firstly, whether the applicant’s claimed conversion to and practice of Christianity is genuine and, secondly, if her faith is indeed genuine, whether she consequently faces a 'real chance' of persecution or a ‘real risk’ of significant harm because her religion should she return to China.[14]
[14] Chan Yee Kin v MIEA (1989) CLR 379, 389 (Mason CJ).
The Tribunal notes the difficulty in assessing a person’s claim to faith, given it is an inherently personal and individual characteristic. Nevertheless, the identification of a claimant’s faith is a material jurisdictional fact upon which her claim to both refugee status and complementary protection apply, given that all her stated fears relate to her being a Christian.[15] In considering this issue the Tribunal has considered all of the relevant evidence before it.[16] It has also taken into account the applicant’s cultural and linguistic background, balanced against factors such as her ability to readily converse in English when needed, her longstanding ability to travel between China and Australia over two decades, and her effective residence in the country for fourteen of those years. The Tribunal has cognisant of the need to avoid normative assumptions about how stereotypical refugees or converts might behave in specific circumstances.[17] Finally, the Tribunal has taken account of the requirement that assessment of claims based on conduct undertaken sur place (in Australia) requires careful consideration of the genuineness of the applicant's present beliefs and motivations.[18]
[15] MIMA v Yusuf (2001) 206 CLR 323.
[16] MIMA v Wu Shan Liang (1996) 185 CLR 259, 282, 293 (Brennan CJ, Toohey, McHugh, Gummow JJ).
[17] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, [85] (Perram, Jagot And Griffiths JJ)
[18] Act, 5J(6); Somaghi v MILGEA (1991) 31 FCR 100, 116 (Gummow J).

For the reasons set out below, the Tribunal is not satisfied that the applicant’s conversion was genuine, nor that her subsequent conduct is evidence that she became a genuine Christian at any relevant date afterwards. This finding is not reached lightly but is compelled by the cumulative weight of several factors emerging from the evidence, which significantly undermine the truthfulness and reliability of her account. These factors are set out below.
Inconsistencies and narrative shifts.
The applicant's account of her religious journey has fundamentally lacked consistency, shifting materially across the key stages of her claim in a manner that undermines its overall credibility and reliability.
Original statement. In her original written statement dated 14 May 2021, the applicant stated that she had been baptised [in] December 2020 and asserted that she feared returning to China due to the persecution of Christians. This letter gave no detail about her personal religious development or any spiritual motivations for conversion prior to the December 2020 baptism. Notably, she said nothing about her mother’s earlier conversion or any long-standing exposure to Christianity. This letter presented her as someone opposed to registered churches in China due to their subordination to the Chinese Communist Party and aligned the applicant’s faith with underground churches. The applicant claimed that she could not accept the compromises required by state-registered churches and would therefore be forced to attend an underground church, thus facing persecution which those denominations are known to experience in China. Later the applicant’s evidence indicated that she had little conception of religious denomination and, other than ascribing to Protestantism, her choice or church was principally determined by whether there was Chinese services and community.
S56 reply. In the applicant’s August 2022 s56 reply, she specifically stated that she had no religious belief before her baptism and described only “five months of Bible study in between” that event and the protection application. This declaration is inconsistent with separate claims of longstanding interest in, research into, and disciplined regular engagement with, Christianity elsewhere in her evidence. She curiously stated that was “not baptised by my Australian church as a Christian follower until [a day in] 2021,” despite also referencing the December 2020 date and certificate. This discrepancy over the timing and recognition of baptism itself suggests confusion about the nature of baptism as a fundamental Christian sacrament.
Agent’s submission. The agent’s further submission made on behalf of the applicant in April 2023 shifted the applicant’s faith narrative again. It stated that the applicant’s mother had always been religious and had provided the applicant with a "constant exposure to Christianity throughout [her] life." This directly contradicted the applicant’s own statement in her s56 reply that she held no religious belief prior to 2020. It now offered a new rationale not previously stated by the applicant, that she “never felt safe enough” to be Christian in China due to surveillance but was able to “connect with her Christian identity” in Australia, significantly, "after coming to Australia and meeting her husband." This submission appears to construct a more favourable background while reinforcing the link between marriage and claimed identity formation.
Departmental Interview. At the departmental interview in January 2024, the applicant presented another version of her faith journey. She stated she began researching Christianity and attending church around 2017 as part of a process of exploring her faith, contradicting both the s56 reply ('no prior belief') and the representative's submission ('constant exposure'). She also attributed her introduction to her husband to her mother’s meeting him at church, contradicting the later hearing account that it was a family friend introducing them at a dinner. She raised coronavirus as a concern which was not in her original application despite that being made at the height of the pandemic. The focus of her concerns was much less about underground churches and much more about the issues with absolute freedom of “pure” religious teaching and her inability to take her children to services at state sanctioned churches, while insisting that her daughter was to be provided the right to choose her religion. She also stated her mother was currently attending the state church in Shanghai.
Review hearings. At the review hearings, the applicant’s faith narrative was reconstructed once more in significant ways. Most notably, the start date of her interest was stated to have begun in 2013 (differing from ‘throughout her life’ in the Agent’s submission, 2017 in her interview and 2020 in her original application). Unlike the interview where the basis for the interest and church attendance was based on spiritual introspection the applicant linked her connection to the faith directly to her mother's conversion. This assertion of a 12-year history of church attendance and exploration appears strategically aimed at countering the impression of a recent, opportunistic conversion by establishing deep roots for her faith and providing a basis for her intensified claims about the critical importance of doctrine and religious upbringing. Her stated fear of returning to China focused on being deprived of doctrinal “purity” for herself and her children, who she said she wanted to become priests (contradicting her interview stance supporting her daughter's "choice").
The applicant also revised the account of her marriage introduction to involve a religious family friend (contradicting the interview where it was her mother) with her mother kept at a distance from the narrative. Her account of her mother's religious practice in China also reversed: she now claimed her mother could not attend church due to childcare responsibilities, even though she had told the Tribunal that both her mother and mother-in-law take care of the children (and that the mother-in-law travels with them to Australia). That indicates that childcare would be available to her mother if she wished to attend church. When these various inconsistencies were put to her, she was not, in the Tribunal’s view, able to provide persuasive explanations for them and strongly rejected that they may indicate that her narrative was not true and her faith was not “pure”.
Knowledge, Commitment, and Personal Resonance
As noted above, the Tribunal is aware that faith is a deeply personal thing and that it is not the arbiter of doctrine.[19] However, the Tribunal must assess the evidence presented to it that is relevant to the determinative issues. Here the applicant sought to variously claim she had a lifelong interest in and participation in Christianity, separately that she was just beginning her faith journey, and separately again that her faith was “pure” and that she must continue her longstanding commitment to regular engage in unadulterated spiritual teaching and practices. When considered together the applicant’s most recent evidence was that she had a longstanding commitment to regular religious study and observation of Christian scriptures and practice extending back over a significant time. That is a very different situation than being a newcomer to the religion with only five months of bible study. These differing and dissonant narratives proffered by the applicant gave rise to questions about (and sometimes defences for) just how much she should know about the religion, how committed to it she is and what personal resonance it has to her.
[19] SZLSP v MIAC [2012] FCA 451.
The applicant's demonstrated religious knowledge and commitment were not, in the Tribunal’s view, consistent with her (admittedly variable and inconsistent) claims to have a longstanding interest and engagement with the faith. That is especially the case if the Tribunal accepts her most recent assertion to have been involved with the faith for more than 12 years. As explained above, the assertion of long-term exposure appears to the Tribunal to be strategically designed to present a longstanding interest in the religion to avoid perceptions that her conversion was sudden and migration focused. It also appeared to be relied upon as the basis for the applicant’s claim that she has an enduring commitment to regular attendance at church services which precedes her claim. However, this claim is fundamentally undermined by her own contradictory s56 reply stating she "did not have religious belief before" her baptism, a statement whose plain meaning cannot be easily reconciled with 12 (or even 3) years of active weekly attendance at Christian ceremonies, and her explicit statements that she “researched” the faith as part of a seven-year journey of exploration and learning before committing to baptism.
Paradoxically the assertion of a 12-year weekly engagement with the Christian religion by the applicant at the hearing serves to highlight the superficiality of the knowledge she did display at both the hearing and the interview, but especially the interview. At the interview, the applicant appeared confused about what baptism was despite (on her evidence) being baptised twice, and the term being put to her in both English and Mandarin. It was only when the delegate connected the term to a ceremony that the applicant explained that she had engaged in a type of induction into Christianity involving gestures and statements, but did not mention purification by water, or "soaking ceremony" in Chinese, which the denomination into which she was initially baptised identifies as the essential feature of that sacrament.[20] Nor was she able to understand the term or concept of apostle (“the twelve chief disciples of Jesus Christ”)[21] and she gave a descriptive summary of Easter, which is the " most important and oldest festival of the Christian Church" stating that it was "just all I know [about] this part of the Bible, I just can’t know much clearly". Where she did explain the spiritual aspects of the religion her answers often seemed rote, focused on rules (the Ten Commandments, recalled partially and without discussion of personal significance) with limited personal resonance, relied on describing external/structural supports (pastors, community) or generic spiritual motifs ("purifies heart," "inner peace,) or the granting of wishes and rewards (wishing for a husband and suddenly being granted one, and in a separate narrative saving money on a property transaction as a result of prayer).
[20] [Source deleted.]
[21] "apostle". Oxford Dictionaries. Oxford University Press, n.d. Web. 07 May 2025. < via Oxford Dictionaries Online/
At the Tribunal hearing one year later, the applicant said she could no longer remember the interview, or what she had said; the result being that she gave new evidence as to her faith. At this point her answers were indeed more developed – although she did appear to sometimes rely heavily on Old Testament concepts (the Commandments, the Genesis creation story, the book of Ezra) even when discussing New Testament faith and struggled to explain how these doctrines connected to her own personal faith. She also had no issue with the concept of the sacrament of baptism – although she continued to explain it in largely ceremonial terms. She referenced moral virtues like “love and loyalty,” but when asked about what aspects of her faith were personally meaningful, her responses reverted to descriptive rules, structural supports (such as the role of pastors and community activities). When she eventually did reference the personal faith implications these tended to involve statements about personal purity and improvement which the Tribunal considered reflected a superficial degree of actual religious commitment and conviction. Critically, she was not able to plausibly explain the spiritual or even doctrinal bases for her asserted claims that she must attend specific religious ceremonies at specific times (seeking to connect that claim to the creation story) or that those ceremonies must be ‘pure’ and uninfected by state regulation.
In the Tribunal’s view, the surface-level improvements evidenced in the hearing, when considered against the credibility issues set out above, suggest a rehearsed presentation of faith that takes account of the difficulties experienced in the departmental interview. The Tribunal has also considered the applicant’s oral evidence to the delegate at the interview is examined through the lens of her later assertion that she had been, at that point, engaged in weekly Christian cultural, ceremonial and study group events at numerous church denominations over 11 years. When viewed against that history, the Tribunal considers her answers to be objectively lacking in the level, degree and depth of knowledge a person can be reasonably be expected to know about a religion by the simple fact of the regularity and historical exposure she claimed to have had to the religion. In sum, the Tribunal considers the applicant’s outward conduct with the Christian community, her recounting of some Christian doctrine and her statements about personal matters of faith to be outweighed by the overall evidence which indicates a lack of personal commitment and resonance.
Motive and Context – Timing and Visa History
The timing of the applicant's conversion provides perhaps the strongest indication of a migration-related motive. Her protection application occurred in close proximity to two pivotal developments: the definitive collapse of her long-pursued skilled migration prospects and her rapid marriage to a Christian man who also had a substantial and uncertain immigration and visa history. The Tribunal finds that these temporal alignments are not incidental; they raise serious questions about whether her conversion represented a genuine spiritual awakening or was primarily a strategic response to her precarious immigration circumstances. The evidence shows the applicant resided in Australia mainly since 2011, pursuing numerous temporary student and work visas, with multiple refusals and unsuccessful appeals concluding by late 2019 or early 2020. It was only in the final quarter of 2020—following the exhaustion of these secular pathways and concurrent with her marriage in December 2020—that she undertook baptism (also December 2020). Her protection visa application followed five months later in May 2021.
The Tribunal acknowledges that late conversions or those coinciding with migration deadlines, are not automatically disingenuous. However, claims based on conduct undertaken sur place (within Australia) require scrutiny of motivation regarding present belief and intent. In this case, the objective timing, combined with her admission of no prior belief, strongly indicates the applicant has not demonstrated that her engagement with Christianity commencing in late 2020 was driven by factors other than strategic timing related to her immigration status.
The conclusion regarding migration-related motivation is further reinforced by the applicant's subsequent, seemingly opportunistic narrative shifts during the review process which are set out above. For instance, her revision at the Tribunal hearing – linking her faith journey back to 2013 through her mother’s conversion after previously stating no prior belief – appears as a post hoc expansion designed to counter the inference of opportunism by constructing a narrative of doctrinal continuity and deep roots. The inference is amplified by the applicant's own formal statement provided in her 2022 s56 reply to the Department that she “did not have religious belief before” her baptism.
Further context undermining the applicant's claimed motivation arises from her husband's parallel immigration pathway and her reliance upon it. The applicant’s husband, also Christian and father to their children, is pursuing skilled migration visa rather than seeking protection. Their son, who is not baptised, is included on the father’s application, not the applicant’s. Her daughter, who is baptised, is included as a secondary applicant on the mother’s protection visa application. This divergence contradicts the applicant's narrative of a profound, shared family commitment to Christianity, and a shared fear preventing return to China because of their religion.
When the implications of the family’s visa circumstances were put to the applicant, she sought to justify the approach by expressing high confidence that her husband would be granted a skilled working visa, thereby provided an immigration pathway for their son. However, this approach appears misplaced when viewed against her own extensive history of visa refusals, her husband's own complex visa history, and her own evidence that her children have had to leave the country because of their family visa issues. The Tribunal does not accept that, if the applicant is genuinely fearful of returning to China, she would rely entirely on the optimism that her husband will be granted the very visa she has been rejected for. The applicant’s history indicates that she is highly engaged in the visa and immigration process, represented by an agent who has provided high level submissions. The applicant is therefore neither naïve about, nor unable to obtain appropriate advice about, her visa circumstances or options.
The implausibility of the applicant’s answers, and the state of the evidence about the family’s visa circumstances, suggest that the family may be pursuing multiple avenues to remain in Australia. Specifically, it infers that the applicant's protection claim being one component of a broader migration strategy, rather than stemming from a unified, genuine fear shared by the family unit. This adds significant weight to the overall finding that her claimed motivation lacks credibility.
Inconsistent Treatment of Children Regarding Religion and Visa Status
Following on from what is considered directly above, the applicant's differential approach to her two young children’s religious and immigration pathways is, of itself a substantial issue in respect of the credibility of her own religious claims. There is a stark contrast in actions: her daughter (born [in year]) was baptised relatively young, at [age] in September 2022, just two months after the family moved to Hobart on 11 July 2022, having already received, according to the applicant's s56 reply, a referral to a local church before leaving Sydney. However, her son (born [in time period] in Hobart) was not baptised during his [time] in Australia and is excluded from this application, being placed instead as a dependent on his father's separate skilled migration visa attempt.
The Tribunal is not satisfied by the applicant’s answer to its concerns about the differential treatment of her son; namely logical difficulties – changing churches, unfamiliarity, language barriers, pastor movement – meaning she could not baptise her infant son. The applicant’s other evidence demonstrated her ability to quickly connect with the Hobart church community, facilitated by a prior referral, and arrange a significant sacrament for their daughter shortly after arriving in Tasmania. The applicant’s interaction with both the Tribunal and department indicates that she is conversant in English and has a very high level of language comprehension. The Tribunal does not consider it plausible that, if baptism into the religion was genuinely an important part of the applicant’s faith, she would not have been able to overcome logistical difficulties a year after her daughter when she was much more settled in Tasmania. The Tribunal considers that the reasons for differential treatment lie elsewhere, most plausibly due to divergent visa strategies being pursued rather than insurmountable logistical hurdles related to faith practice.

The inference of strategic motivation over consistent religious principle is reinforced by the applicant's fundamentally contradictory statements regarding the necessity of early religious upbringing. At her delegate interview, she emphasised letting her daughter "choose" her faith later in life, implying the infant baptism was functionally symbolic. Yet, at the Tribunal hearing, she was emphatic that the inability for her children to be given “pure” and regular doctrinal instruction was a critical ground for her fearing return to China. This shift in rationale appears to have been presented to underpin the re-articulation and refocus of her protection claims. It is further complicated by her statement hoping the children were not currently being taught religion by their Christian grandparents in China due to the political environment, which sits uneasily with the claim that the inability to ensure such instruction is persecutory. Taken together, the inconsistent actions (selective baptism/visa inclusion), the implausible explanations, and the contradictory rationales indicates that decisions concerning the children were driven by migration rather than religious objectives. That further undermines the credibility of the applicant's claimed faith-based motivations and fears related to her parenting.
Balancing considerations
The Tribunal has carefully considered the documentary evidence submitted by the applicant in support of her claimed Christian faith and practice. This evidence includes letters of support from Christian pastors and church members, photographs of church activities, and baptism certificates for herself and her daughter. The Tribunal acknowledges that this material provides prima facie corroboration of certain factual claims regarding the applicant's outward participation in Christian activities and communities in both Sydney and Hobart since at least late 2020.
The documentary evidence of the applicant’s religious activity is relevant and has been given due consideration. However, its weight in establishing the genuineness of the applicant's internal conviction and motivation is significantly limited when assessed against the substantial adverse credibility findings set out above. Support letters from church officials or community members, while relevant, are not determinative of genuine belief; nor are those individuals well placed to discern underlying migration motives or assess the profound inconsistencies presented by the applicant to immigration authorities. Similarly, photographs and certificates document participation in events but cannot reveal the applicant's internal state or primary motivation for participating. Furthermore, the documentary evidence largely post-dates the critical period in late 2020 when the Tribunal finds the applicant likely adopted Christianity for pragmatic reasons; it confirms subsequent activity but not the genuine motivation behind it, nor does it resolve the core contradictions in her account. The Tribunal must make its own assessment based on the totality of the evidence. In respect of the documentary evidence provided by the applicant as corroboration of her faith, it is, in the Tribunal’s view, outweighed by the significant body of evidence pointing towards non-genuine motivation. The Tribunal finds, on balance, that the adverse factors are substantially more compelling.
The Tribunal has also explicitly considered the legal principle relevant to sur place claims: that even where religious conduct might have initially been undertaken strategically (e.g., for migration purposes), genuine faith can potentially develop over time through continued practice. The assessment must focus on the applicant's present genuine belief and intent, not merely the original motive.[22] Applying this framework, the Tribunal examined the evidence pertaining to the applicant's conduct and engagement since her baptism in December 2020. However, as detailed throughout these reasons, the evidence from this later period reinforces the finding of lack of genuineness. Her narrative continued to evolve inconsistently and contradictorily; her demonstrated knowledge remained, in the Tribunal’s view contextually superficial; and strategic choices regarding her children persisted. This ongoing pattern provides no credible basis to conclude that a genuine spiritual transformation has taken place. Her claim appears to have remained tethered to the practical objectives that likely first prompted it. Thus, the Tribunal is not satisfied that an initially non-genuine adherence by the applicant has subsequently become a genuine faith in this case.
[22] Somaghi v MILGEA (1991) 31 FCR 100, 116 (Gummow J).
Does the applicant satisfy the refugee criterion for protection?
The Tribunal finds that the applicant’s claimed conversion to Christianity is not credible, and her professed faith is not genuinely held. All the conduct relied upon (conversion, baptism, practice) occurred in Australia and the Tribunal finds to be pragmatically motivated with the sole purpose of strengthening her claim. Based on that finding the Tribunal is not satisfied there is any objectively credible evidence before it that the applicant would face a real chance of being persecuted for the reasons of her religion, or for any other convention reason, as a foreseeable consequence of being returned to China. That being an essential element for refugee protection under s 5J(1)(b) of the Act, the applicant is found not to satisfy the refugee criterion for protection.
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).
The Tribunal has found that the applicant's claimed Christian faith is not genuinely held. Her claims are based entirely on this non-genuine identity, and she has raised no other grounds for fearing harm unrelated to this claim. Consequently, there is no objectively credible evidence before the Tribunal to indicate the applicant would face a real risk of any harm related to her claims upon return, let alone harm that meets the threshold definition of of significant harm set out under s 36(2A) of the Act. On this dispositive basis, the applicant fails to meet the criteria for complementary protection.
DECISION
For the reasons given above the Tribunal is not satisfied that either of the applicants are a person in respect of whom Australia has protection obligations.
The Tribunal is not satisfied the primary applicant’s claimed conversion is credible for multiple significant, cumulative reasons, and nothing in her conduct in Australia satisfies it that her religiously affiliated activities are motivated by any other reason than strengthening her claim. Consequently, the Tribunal is not satisfied that the applicant faces a real chance or real risk of harm on the credible evidence before it. The applicant has therefore failed to establish that she meets the criteria for either arm of protection under s 36 of the Act.
The secondary applicant also fails to meet the criteria as she is offshore.
The Tribunal affirms the decisions not to grant the applicant protection visas.
Date of Hearing: 13 May 2025
Applicant’s Representative: Mr Nelson Guang Lai Shi (MARN: 9578392)
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.
…