A Chinese national who was denied a protection visa after fleeing religious persecution in his homeland has won a second chance to stay in Australia.
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The man applied for refugee status after coming to Australia in 2011 on a business visa.
He said he had been arrested, tortured and extorted by police in China in 2009 for practising Falun Gong, a religion repressed in the communist country.
The man said he fled his homeland because he did not want to live in fear, and believed if he returned he would be jailed or sent to a mental hospital.
He said he was in further danger after participating in pro-Falun Gong protests outside the Chinese embassy in Canberra since settling in the capital.
But the man was refused a protection visa by the Department of Immigration and Citizenship last year.
He then applied to the Refugee Review Tribunal for a review of the departmental decision, but was rejected.
The tribunal said Australia had no obligation to protect the man under its United Nations obligations.
The tribunal also found the man was not a truthful witness and had fabricated his claims, including that he was a Falun Gong practitioner in China.
It said any religious activities he had participated in since he arrived in Australia, including protesting outside the embassy, had been conducted with the sole purpose of strengthening his claim for refugee status.
The man challenged the decision in the Federal Circuit Court, which found in his favour, ordering the tribunal to review its decision.
Judge Robert Cameron found the tribunal had committed a jurisdictional error by not considering Australia's complementary protection obligations, which it owed to the man after he protested outside the Chinese embassy.
The judge ordered the matter go back before the tribunal to be redetermined according to law.
''The tribunal, although apparently sceptical, did not find as a fact that the applicant had not protested outside the Chinese embassy,'' Judge Cameron wrote.
''Relevantly, it raised a case … that if he returned to China he might face significant harm there because of his participation in the protest.
''Such a claim was not obviously considered by the tribunal. Indeed, I find that it must not have been considered because, if it had been, the tribunal would have first had to make a finding or an assumption concerning whether the applicant had conducted himself outside the embassy as he alleged, and no such finding or assumption was made.''
