## Facts

- The applicant (name withheld) was a citizen of the People’s Republic of China who arrived in Australia and applied for refugee status on religious grounds.
- The applicant said that, as a middle-school student, he was found with a religious leaflet, after which he was detained and sent to a rural commune for about two years.
- The applicant testified that in 1982 his uncle established an underground (unregistered) Christian church and that the applicant became a leader in the church.
- The applicant said Chinese policy permitted worship only in government-sanctioned churches and that membership or leadership in an underground church could cause authorities to treat a person as a political dissident.
- The applicant claimed that after the June 1989 Tiananmen Square crackdown, Chinese authorities intensified arrests of pro-democracy figures and Christians, including people like him.
- The applicant testified that he was detained for 12 days in September 1989.
- The applicant stated that after the September 1989 detention he curtailed his religious practice until leaving China in June 1992.
- The applicant claimed that, if returned to China, he intended to practice Christianity and feared being targeted by authorities because of his underground-church affiliation and leadership.

## Issues

1. Whether the applicant had a well-founded fear (a real chance) of persecution if returned to China.
2. Whether any feared harm would be for reasons of a Refugees Convention ground, including religion and/or actual or imputed political opinion.
3. Whether the applicant’s past treatment (detention and rural commune assignment, later detention) and intended future religious practice supported a finding of prospective persecution rather than ordinary prosecution for breach of generally applicable rules.
4. Whether the applicant could be denied protection on the basis that he might avoid harm by limiting or concealing his religious practice to what the state permitted.

## Decision

- The Refugee Review Tribunal (RRT), constituted by Dr L. Fong in Sydney, determined the applicant was a person to whom Australia owed protection under the Refugees Convention.
- The RRT set aside the earlier refusal of refugee status and substituted a decision recognizing the applicant as a refugee.

## Legal Principles

- The RRT conducts a merits review and must decide for itself whether the applicant meets the Refugees Convention definition as applied in Australian migration law.
- A well-founded fear requires both a genuine fear and an objective assessment that there is a real (not remote) chance of serious harm on return.
- Persecution involves serious harm, not mere inconvenience, and must be linked to at least one Convention reason, including religion or political opinion (including opinion attributed by authorities).
- Limits that effectively prevent genuine religious practice, and penalties imposed because a person practices outside approved channels, may amount to persecution where the consequences include detention, punitive relocation, or comparable serious measures.
- Evidence of past serious harm for religious activity can strongly support the assessment of future risk, particularly where the applicant credibly intends to continue the same form of religious practice on return.
- An applicant is not required to avoid persecution by abandoning or disguising sincerely held religious belief or practice; the risk assessment proceeds on the basis of the applicant’s intended conduct.

## Conclusion

In [1994] RRTA 1419, the RRT accepted that a Chinese Christian who had been punished for unauthorized religious activity, later led an underground church, was detained after Tiananmen, and intended to practice Christianity again on return faced a real chance of serious harm for reasons of religion and imputed political opinion; the Tribunal therefore set aside the refusal and recognized him as a refugee.


Australia Refugee Review Tribunal RRT Reference: N 93/01843, RRT Case No. N 93/01843 [1994] RRTA 1419 (7 July 1994)