1409637 (Refugee)
[2016] AATA 4847
•18 March 2016
1409637 (Refugee) [2016] AATA 4847 (18 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1409637
COUNTRY OF REFERENCE: China
MEMBER:Katie Malyon
DATE:18 March 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 18 March 2016 at 5:04pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants, [Ms A] and her husband [Mr B], Protection visas under s.65 of the Migration Act 1958 (the Act).
[Ms A] is a [age] year old from [Village 1], a rural area [in] Zhejiang Province, China. She made her current application for protection on [date] April 2013. This is [Ms A]’s second such application. It is also [Mr B]’s second application for a Protection visa although, in this instance, he is included as a member of [Ms A]’s family unit rather than making his own claims for protection. Details of the applicants’ immigration history in Australia where relevant to this decision are outlined below. Lodgement of [Ms A]’s current Protection visa application has been facilitated following the 3 July 2013 full Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship (SZGIZ)[1] discussed below.
[1] [2013] FCAFC 71
The applicants appeared before the Tribunal on 27 March 2015 and again on 7 March 2016 to give evidence and present arguments. The Tribunal’s hearings were conducted with the assistance of an interpreter in the Mandarin and English languages. Oral evidence was received by the Tribunal on 27 March 2015 from [Pastor C] with [Church 1] and [Mr D], formerly a member of [Church 2] and a founder of [Church 3]. Oral evidence was also received on 7 March 2016 from [Pastor E] of [Church 3] and [Mr F], now an elder of [Church 1] and a friend of both of the applicants who has known them since they all went to primary school together in [Village 1]. [Ms A]’s representative [did] not attend the first hearings with his client. She advised the Tribunal at the hearing on 7 March 2016 that [the representative]’s services had been terminated and later provided the Tribunal with a signed form withdrawing [the representative]’s appointment as her representative and his authorisation to receive correspondence on her behalf.
The issues in this case are as follows:
· Are [Ms A]’s claims credible?
· Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that the applicants would suffer significant harm?
· Is this an appropriate case for the Tribunal to recommend for Ministerial Intervention?
RELEVANT LAW AND DEFINITIONS
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 of the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria set out in s.36(2)(a), (aa), (b) or (c) of the Act.
Relevantly for this review, s.48A of the Act imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a Protection visa which has been refused. The full Federal Court in SZGIZ held that the operation of s.48A of the Act, as it stood at the time of this Protection visa application, is confined to the making of a further application for protection which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.
Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) because:
(a)[Ms A]’s first Protection visa application was refused by the Department on the basis of this criterion on [date] September 1997; and,
(b)[Mr B]’s first Protection visa application was refused by the Department on the basis of this criterion on [date] October 1998.
Instead, the Tribunal has proceeded on the basis that it can only consider [Ms A]’s claims under the complementary protection provisions in s.36(2)(aa) of the Act. These requirements are outlined below.
Complementary protection criterion
A person may meet the criteria for the grant of a Protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion): s.36(2)(aa) of the Act.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The terms ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act and extracted in Annexure A.
Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2] Relevant in this regard, the High Court has stated that a person can have a ‘well‑founded fear’ of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring: however, the chance of it occurring must be more than “far-fetched” or “remote” and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”.[3] A fear of persecution “is not well-founded if it is merely assumed or if it is mere speculation”.[4]
[2] MIAC v SZQRB (2013) 210 FCR 508
[3] Chan v MIEA (1989) 169 CLR 379 at 429 per McHugh J
[4] MIEA v Guo (1997) 191 CLR 559 at 572
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department’s PAM3 Protection visas - Complementary Protection Guidelines as well as any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal is not precluded from considering other relevant information.
Credibility
The United Nations Human Rights Commission has recognised the difficulties of proof faced by applicants for refugee status.[5] In particular, there may be claims that are not susceptible of proof. Moreover, the courts have accepted that in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for.[6] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the fear asserted or that it is ‘well-founded’, or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[7] It is the applicant’s responsibility to specify all particulars of their claims and to provide the Tribunal with sufficient evidence to establish their claims.[8]
[5] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relation to the Status of Refugees 1992 at paras [196 - 197]
[6] Randhawa v MILGEA (1994) 52 FCR 437, Beaumont J at [21]
[7] MIEA v Guo & Anor (1997) 191 CLR 559 at 596
[8] s.5AAA(1) of the Act
In this regard, the Tribunal is not required to accept uncritically any or all the claims made by an applicant.[9] Nor is the Tribunal required to make the applicant's case for them.[10] In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[11] It is legitimate for the Tribunal to take into account any delay in the lodging of a Protection visa application by an applicant in assessing the genuineness, or at least the depth, of an applicant’s claim to fear persecution.[12]
[9] Randhawa v MILGEA (1994) 52 FCR 437 at 451
[10] s.5AAA(4) of the Act. See also Prasad v MIEA (1985) 6 FCR 155 at 169 –170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45
[11] Kopalapillai v MIMA (1998) 86 FCR 547
[12] Selvadurai v MIEA & Anor (1994) 34 ALD 347, Herrey J at [11]
The Tribunal has also considered the Guidelines on the Assessment of Credibility[13] published by the Administrative Appeals Tribunal, including:
9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.
11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct. The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.
CONSIDERATION OF CLAIMS AND EVIDENCE
[13] AAT Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
Material before the Tribunal
The Tribunal has had regard to the following:
· The current Protection visa application submitted to the Department on [date] April 2013 including a recording of the delegate’s interview with [Ms A] (only) on [date] April 2014.
· The application for review submitted to the Tribunal on 30 May 2014 attaching a copy of the delegate’s letter dated [April] 2014 refusing the current application for protection (‘the Delegate’s Letter’). The Delegate’s Letter sets out, in considerable detail:
oThe issues discussed with [Ms A] at her interview with the delegate on [date] April 2014;
oThe immigration history of [Ms A] and [Mr B] in Australia as well as relevant decisions by the Department and a differently constituted Tribunal (the Refugee Review Tribunal or RRT) in relation to [Ms A]’s first application for protection, [Mr B]’s first application for protection using his alias of [Alias 1] as well as in his wife’s subsequent applications for Ministerial Intervention.
· Documentation submitted to the Tribunal before the hearing including:
oMultiple extracts from assorted websites including the newspapers and Human Rights Watch’s World Report 2014 in relation to the treatment of Christians in China and demolition of church crosses in late 2014 and early 2015, in particular, in Zhejiang Province;
oLetter from [Church 3] member [named];
oCommonwealth Bank Statements for [Ms A]and [Alias 1] ([Mr B]’s alias and his business name);
oLetter from Registered [Psychologist] dated [March] 2015 in relation to [Ms A];
o[Church 3] roster for [date] February 2015 services and assorted photographs in relation to church members’ activities including photographs of the applicants.
· Oral evidence of the applicants given at the Tribunal’s hearings on 27 March 2015 and 7 March 2016.
· Oral evidence from witnesses [Pastor C], [Mr D], [Pastor E] and [Mr F].
· Documentation submitted to the Tribunal after the hearing of 27 March 2015 including:
oReference letters for [Mr B] from: [Pastor G] of [Church 1] and, [owner] of [a company];
oReference letters for [Mr B] from[professional sources];
oAssorted undated black-and-white photographs of unnamed groups in business attire;
oEvidence of [Mr B]’s employment in [a certain]industry using his alias and business name of [Alias 1] of [Alias 1] including: [details deleted]; and,
oEvidence of lodgement of Business Activity Statements (BAS) and payment of Goods and Services Tax (GST) to the Australian Taxation Office (ATO) by [Alias 1] ([Mr B]’s alias and his business name) for the period from [date] October 2012 to [date] March 2015.
oEvidence of income tax paid to the ATO by [Alias 1] ([Mr B]’s business name) for the year ended 30 June 2014.
· Documentation submitted to the Tribunal after the hearing of 7 March 2016 including:
oEvidence of lodgement of Business Activity Statements (BAS) and payment of Goods and Services Tax (GST) to the Australian Taxation Office (ATO) by [Alias 1] ([Mr B]’s alias and his business name) for the period from [October] 2012 to [March] 2015
oNotice of Assessment issued by the ATO to [Alias 1] ([Mr B]’s alias) for each year ended 30 June 2010, 2011, 2012, 2013 and 2014 reporting income ranging from $19,276 in the year ended 30 June 2013 to $29,395 in the year ended 30 June 2011.
oNotice of Assessment issued by the ATO to [Ms A] for the year ended 30 June 2011 reporting income of $9,511.
oAddresses for each of [Mr B] and [Ms A].
oChange of contact details confirming cancellation of the appointment of [the representative] as the applicants representative.
· The Department’s PAM3 Protection visas - Complementary Protection Guidelines and PAM3 Minister’s Guidelines on Ministerial Powers (s.345, s.351, s.391, s.417, s.454 and s.501J).
· Relevant country information including DFAT country information reports.
Nationality of the applicants
On the basis of available information, the Tribunal finds that the applicants are nationals of China. [Ms A] travelled to Australia as the holder of a passport issued by the authorities of China in the name of [Ms A] born [date] at Guangxi. In a joint Statutory Declaration with [Mr B] sworn 20 December 2009 and submitted by [Ms A] in relation to her second application for Ministerial Intervention, [Ms A] declared that she entered Australia on a false passport, her real date of birth is [date] and she was born in Zhejiang. She confirmed in her interview with the delegate and at the Tribunal’s hearing that the passport she used to arrive in Australia was false. At the Tribunal hearing, [Ms A] presented an original Chinese passport issued by the Consulate-General of the People’s Republic of China in [Australian city 1] on [date] 2013.
Although he travelled to Australia as the holder of a passport issued by the authorities of China in the name of [Alias 1] born [date] in a joint Statutory Declaration with [Ms A] sworn [December] 2009 and submitted by [Ms A] in relation to her second application for Ministerial Intervention, [Mr B] declared that he entered Australia on a false passport, his real name is [Mr B] and his real date of birth is [date]. He confirmed at the Tribunal’s hearing that the passport he used to arrive in Australia was false but that he has continued to use his false name in Australia for business purpose on the advice of his former agent. At the Tribunal hearing, [Mr B] presented an original Chinese passport issued by the Consulate-General of the People’s Republic of China in [Australian city 1] on [date] 2013.
Having sighted the applicants’ original Chinese passports, both of which were issued [date] 2013 [in Australia], the Tribunal finds that they are nationals of China. The applicants made no claim to be nationals of any other country. The Tribunal accepts that the applicants’ claims should be assessed against China as the ‘receiving country’ for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act. The Tribunal is satisfied that the applicants do not have a right to enter and reside in any other country and, therefore, they are not excluded from Australia’s protection obligations under s.36(3) of the Act.
The applicants’ claims for protection
[Ms A] is the primary applicant in the applicants’ current application for protection. She has made brief claims in her Form 866C Application for an applicant who wishes to submit their own claims for protection and provides further details in an accompanying Statement lodged with her application. [Ms A] claims:
· She came to Australia on a Business Visitor visa and meant to return on completion of her business mission: however, just before she planned to return she received a telephone call from her family in China informing her that she was in danger and would
be persecuted by the Chinese Communist party (CCP) because of the following 3 reasons:
· First, she will be further persecuted and fined under the false charge of giving a second birth. She will be physically tortured and will be fined exorbitantly by the village committee and the town government because she is suspected of violating the one child policy. She has two children and has broken family planning laws. Her name has been put on a Black Name List. After she came to Australia she made public speeches against the Chinese government pointing out that putting people with more than one child on a Black Name list is inhumane and against human rights. Someone reported her speech back to China and, as a result, her family were warned to pass a warning to her.
· Second, in 1989 she participated in pro-democracy protests in Guangzhou she demonstrated against the Chinese dictatorship and corruption conducted by the Chinese government, in particular, the local governments. After the Tiananmen Square incident in Beijing some students passed her house. She allowed 2 students (who were later considered by the government to be political dissidents) to stay at her house in Guangzhou for one night. She decided to help them and took them to her home town of Wenzhou for two months. When she came to Australia she was informed that the Public Security Bureau Police (PSB) were looking for her because she had once helped these counter revolutionary elements.
· Third, she used to commemorate the 4 June massacre of students in Beijing with friends, in honour of the students who were killed. One of her friends later gave her name to the PSB saying, under torture, that she had helping 2 students who were political offenders hide themselves in her home in Wenzhou.
As noted in the Delegate’s Letter, during the course of her interview, [Ms A] pursued each of these claims. She also made additional claims that she will be:
· Persecuted on return to China due to her Christian faith because there is a lack of religious freedom in China.
· Unable to find employment and support herself on return to China due to having been absent from China for so many years.
· Forcibly sterilised after the birth of her second daughter. The Delegate’s Letter makes reference to a small scar on [Ms A]’s abdomen that she showed the delegate.
[Mr B] completed a Form 866D Application for a member of the family unit. He makes no claims of his own.
Hearing - 27 March 2015
During the course of the hearing, [Ms A] withdrew her claim in relation to being a pro-democracy supporter and providing accommodation to students who are considered to be political dissidents. She clarified she wished to proceed only with her claims regarding China’s one child policy and being forcible sterlized, her Christian religion and her inability to support herself if returned to China. [Ms A] told the Tribunal one of the reasons she thinks she would be unable to support herself is that she would want to proselytise her faith.
[Mr B] confirmed that he relies entirely on his wife’s claims and that he has no claims of his own. As noted in the Delegate’s Letter, lodged with [Ms A]’s second application for Ministerial Intervention is a certified and translated copy of the applicants’ Marriage Certificate as well as a Notarial Certificate of Marriage. Further, and as noted in the Delegate’s Letter, [Ms A] also provided the original of her Hukou at interview with the delegate which indicates that the applicants are husband and wife. It also lists their two[daughters]. Additional evidence was also provided in relation to the applicants’ joint Commonwealth Bank account referred to above and their joint Medicare card. In the circumstances, the Tribunal accepts that [Ms A] and [Mr B] are married and members of the same family unit. [Mr B] told the Tribunal that if returned to China he would not be involved in proselytising but would simply support the Chruch Minister.
Hearing – 7 March 2016
The Tribunal explored [Ms A]’s claims in relation to her Christian religion as well as arriving in Australia on false documentation. Also explored with [Mr B] and [Ms A] was their integration with the Australian community.
The applicants’ claims in their former Protection visa applications and the 2009 application for Ministerial Intervention
As set out in the Delegate’s Letter, in her first Protection visa application lodged [date] December 1996 [Ms A]’s only claim related to ‘false charges of giving a second birth’. However, as noted in the Delegate’s Letter, on 14 October 1997 when she lodged an application for review of the Department’s refusal of her first application for protection, [Ms A] advanced the claims set out in the Statement accompanying her current application, that is, China’s one-child policy as well as her being a pro-democracy activist and supporter. Notably, she made no reference whatsoever - either in her first application for protection lodged with the Department or before the RRT when it considered refusal of her first application for protection - to claims regarding her Christian faith or her inability to find employment and support herself. As noted in the Delegate’s Letter [Ms A] did not attend the RRT’s hearing scheduled for 21 September 1998. In her Statutory Declaration sworn at 28 March 2009 [Ms A] and again at this Tribunal’s hearing on 7 March 2016 she said her migration agent did not tell her about the RRT’s hearing and ‘sometime in 1998, I asked the former migration agent again about my application and he told me that it been refused by the Tribunal’. Despite this, [Ms A] said she used the same agent to help her with her first application for Ministerial Intervention in October 1998 when the RRT affirmed the Department’s refusal of her first application for protection.
The Delegate’s Letter notes [Ms A]’s second application for Ministerial Intervention more than a decade later in early 2009 includes a letter dated 16 March 2009 in which she advances her claims of falsely breaching the one-child policy and, for the first time, makes claims about her Christian religion but not about her pro-democracy activities. She states in her letter ‘my agent mixed up my materials when the application was initially lodged’ and clarified she ‘did not have claim (sic) related to pro-democracy’. Subsequently, in a Statutory Declaration dated 28 March 2009, [Ms A] stated in relation to claims made to the RRT in 1998 the ‘statement titled The Political & Human right Situations in China 1997 was submitted with my signature. Although the signature appears to be mine, I was never aware of the existence or content of this statement. I had never participated in any political or pro-democracy activities in China’.
Further, the Tribunal put to [Ms A] consistent with the provisions of s.424A of the Act that no reference was made by [Mr B] to his religion when he lodged his first application for protection in 1998: in his Form 866C lodged in connection with his first application for protection [Mr B] did not state his religion: he indicated ‘N/A’ in response to the relevant question on the form. [Mr B]’s claims in his application related to his wife (who he claimed remained in China) breaching China’s one-child policy. As noted above, [Mr B]’s wife’s application for Ministerial Intervention more than a decade later in early 2009 includes a Statutory Declaration dated 28 March 2009 in which she advances claims in relation to the one-child policy and, for the first time, their religion. She states ‘soon after arriving in Australia, my husband engaged a migration agent in [to] apply for protection visa. Due to our lack of English, he was not aware of the contents of the application. The application was refused. My husband then followed the instructions of his former agent to lodge a review application to the Refugee Review Tribunal. He was not notified by his former migration (sic) to attend a hearing and his review application was dismissed’.
By way of summary, although [Ms A] has consistently made claims in relation to the one-child policy, it was only 12 years after she arrived in Australia that she makes claims for the first time in relation to her religion and has also now added new claims in relation to her capacity to subsist.
Are [Ms A]’s claims credible?
The Tribunal notes that, after the hearing on 27 March 2015, the Tribunal received letters of support from members of [Church 3] attesting to both [Ms A] and [Mr B]’s significant contribution and commitment to the church, including regular attendance and playing active roles at weekly church services, Bible study groups and the church’s charitable activities. In addition, [Pastor G] from [Church 1] [wrote] to the Tribunal to confirm that even though [Mr B] is not a member of [Church 1] he nonetheless has assisted with property renovations by giving freely of his time and money to assist with construction of a deck, replacing an oven and a solar water heater as well as other property work. [Church 2] member [Mr H] comments on the applicants’ assistance provided to students who arrive from China by helping them with temporary accommodation and food if that is an issue as well as facilitating Bible readings in small groups for such students: they offer them a home away from home. Further, the Tribunal notes that the delegate has included in the Department’s file copies of 16 letters which date from 2009 and which were lodged by the applicants as part of [Ms A]’s second application for Ministerial Intervention. These letters are from members of [Church 2] as well as [Church 1] [and] attest to the applicants’ contribution and commitment to the church. All of the letters, without exception, warmly express their regard for the applicants. Further, the Tribunal took oral evidence from [Mr D], a founding member of [Church 2] and [Pastor E] from [Church 3] confirming the assistance that [Ms A] and [Mr B] give during services when they were members of these church’s respective congregations. The Tribunal accepts that [Ms A] and [Mr B] have been practising their Christian faith in Australia and have done so since at least mid-2008. The Tribunal also notes the number of references for [Mr B] from executive members of [Association 1] who have expressed their appreciation for his professional and entrepreneurial skills as well as the generous time he has voluntarily given on behalf of the [Association 1]’s efforts. Further comments in relation to these and other letters of support of the applicants are made below in the context of whether this is an appropriate case to refer to the Minister consistent with s.417 of Act.
Notwithstanding the numerous references from [Association 1] executive members and letters of support from church members the Tribunal has a number of concerns in relation to [Ms A]’s claims. By way of summary, the Tribunal is not satisfied that [Ms A] has told the truth in relation to fundamental aspects of her claims. Furthermore, the Tribunal found [Ms A] to be vague about key details in her past and generally out of touch with the situation in China, both now and in the recent past. While the Tribunal accepts that the applicants are now committed practising Christians and, if returned to China, would not only wish to continue to practice their Christian faith but also have some issues adjusting to life in China after nearly 20 years in Australia the Tribunal, overall, did not find [Ms A]’s evidence to be plausible, persuasive, consistent with claims made earlier or consistent with country information. The Tribunal accepts, after nearly 20 years living in [Australian city 1], the applicants see Australia as their home and wish to remain here permanently. However, the task before the Tribunal is to determine whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicants will suffer significant harm. The Tribunal’s concerns in relation to [Ms A]’s claims are discussed below.
First, the Tribunal finds that [Ms A] lacks credibility. She has been untruthful in her past dealings with the Department and has gone to considerable lengths to provide false information and documentation in support of her protection claims in the past. As noted in the Delegate’s Letter and as stated by her in her joint Statutory Declaration sworn at 28 March 2009, [Ms A] told the Tribunal that she approached an agent to help her prepare her first application for protection and she did not know what was contained in that application. When questioned about the applicants’ past applications to the Department and the RRT as well as the Minister, [Ms A] reached down to her bag, pulled out an envelope and told the Tribunal ‘our previous applications are in this envelope. I have no idea what’s in it. We just came here and didn’t know much. I had no idea’. [Ms A] claimed ‘it was all the fault of my agent’ and, the case of her husband, ‘it was all dealt with by his solicitor. We didn’t know what to say. The solicitor lodged the application with blank pages’. The Tribunal observed that it is not correct to say that their applications were lodged with blank pages because considerable personal details (family members, education) have been included and, with limited exceptions, remain correct. [Ms A] made no comment. In the Tribunal’s view, if [Ms A] had a genuine fear of persecution in China or had any desire to provide accurate information to or be truthful with the Department, she would have taken steps to familiarise herself with her application and ensure that it was correct. The Tribunal acknowledges that [Ms A] had no English when she arrived in Australia; further, she told the Tribunal that she is illiterate having gone to Grade 2 only in China. In the circumstances, [Ms A] could, before she paid the agent’s fees, have asked her agent to explain to her the content of her first application for protection in December 1996 instead of just signing ‘blank forms’, or the statement titled ‘The Political & Human right Situations in China’ lodged with her application for review to the RRT. She could have prepared her own statement in 1996 with the help of her friends [when] she lodged her first application for protection and instructed her agent to have it translated before submitting it with her application for protection.
It appears to the Tribunal that [Ms A] took absolutely no steps at all to familiarise herself with her first application for protection and was entirely unconcerned about the fact. She decided to proceed with her application for protection, and paid her agent for lodging an application she now says she knew nothing about. The passport [Ms A] used to enter Australia and that she now acknowledges was false contains her correct name but an incorrect place and date of birth. [Ms A] showed no interest in ensuring that she was being truthful in her application and was entirely indifferent to the fact that inaccurate or false claims were being made on her behalf. She told the Tribunal, consistent with statements made in her Statutory Declaration sworn 28 March 2009, that her agent told her there was three steps (visa application, merits review to the RRT and, finally, Ministerial Intervention) and she ‘hoped the 3rd step would really take as much time as possible’.
In relation to her current application for protection, it took the Tribunal sometime at the hearing on 27 March 2015 to clarify which of her claims [Ms A] was proceeding with in light of the fact that she had replicated the claims in her first application for protection, including her claim about being a pro-democracy supporter, which she had later withdrawn in her application for Ministerial Intervention lodged in 2009. During the hearing, [Ms A] told the Tribunal that she wished to withdraw her claim regarding political or pro-democracy activities. It does not reflect well on the [Ms A]’s credibility that, despite having the benefit of a solicitor registered migration agent to help her prepare her current application, she included as part of her application statements which she subsequently withdrew in 2009.
[Mr B], too, has demonstrated a disregard for providing accurate information and documentation to the Department. By the time [Mr B] came to lodge his first application for protection not only had his wife been in Australia for nearly 2 years but her first application for protection had been refused a year earlier and, as noted in the joint Statutory Declaration sworn at 28 March 2009 lodged in support of [Ms A]’s application for Ministerial Intervention, she had paid her agent to apply to the RRT for review of that decision. In the circumstances, the Tribunal is of the opinion that it would have been appropriate for [Ms A] to engage with the friends that she says she met from her village [in] China (such as [Mr F]) and ensure that her husband’s application for protection was completely truthful and set out both comprehensively and accurately all of his claims. Instead, as noted in the Delegate’s Letter, in their joint Statutory Declaration lodged in support of [Ms A]’s second application for Ministerial Intervention, [Mr B] too made no reference to claims regarding religion in his first application for protection and, in his Form 866C lodged in connection with his first application for protection, in response to the question regarding religion he replied ‘N/A’.
In the Tribunal’s view [Ms A]‘s statement at the hearing that ‘we just came here and didn’t know much. I had no idea’ is not simply accurate or plausible by the time her husband came to make his application. She volunteered to the Tribunal ‘it is our fault’. At the hearing on 7 March 2016 and in response to the Tribunal’s question as to why she did not ask [Mr F] for assistance she replied ‘I didn’t know about these things. I forgot to ask him’. Further, in response to the same question [Mr B] replied ‘I had no idea we could apply for protection so I didn’t tell people around us’. If [Ms A] or [Mr B] had any concerns about being truthful in their dealings with the Department, the Tribunal is of the view that they had ample opportunity for [Ms A] to acquaint herself with the application process pending her husband’s arrival in Australia and to ensure that the correct information and documentation was provided to the Department. In the alternative, she could have informed the Department of any concerns that she had in relation to the correctness of information or documentation lodged, either by her agent in connection with her own application or in relation to her husband’s application.
Even if the Tribunal accepts that their agents fabricated claims in their respective first application for protection, it is of the view that [Ms A] and her husband did nothing to ensure their applications were truthful. The applicants’ failure to take any steps whatsoever to ensure the correctness of information provided to the Department, particularly in the case of [Mr B] in light of the fact that his wife had already been here for nearly 2 years when he applied, is a strong indication that they are willing to provide false information in their dealings with the Department. Both applicants admitted in 2009 to providing the Department with false Chinese passports. In the mind of the Tribunal the applicants’ past conduct, by act and omission, casts doubt in relation to [Ms A]’s claims in her current application.
The Tribunal found [Ms A] to be generally co-operative. Despite this, the Tribunal notes when asked to comment on inconsistencies or clarify any vague comments she would sometimes say one of the following: they do not know what is in documents, including those provided by herself as well as her husband, because their respective agents lodged them; they just arrived in Australia and didn’t know anything; her mind was a blank when she met with the delegate; she is illiterate having gone to Grade 2 only; or, things happened a long time ago. The Tribunal reminded [Ms A] on a number of occasions that the truth does not change and that the obligation rests with her to provide evidence to satisfy the Tribunal of her claims. It does not reflect well on [Ms A]’s credibility or that of her husband that the applicants have lodged earlier applications for protection that contained false, or incomplete, claims and that were supported by now acknowledged false documentation. The Tribunal finds that [Ms A] and [Mr B] have made deliberate efforts to fabricate some of their claims (by act or omission) in their first and current Protection visa applications.
Second, the Tribunal has concerns that [Ms A] did not thoroughly acquaint herself with the reasons for the delegate’s refusal of her current application for protection as set out in the Delegate’s Letter and come to the Tribunal’s hearings with evidence to address any shortcomings in her application as identified in that letter.
[Ms A] told the Tribunal that ‘our representative translated the letter’. Questioned as to whether she understood the basis on which her application for protection had been refused [Ms A] replied ‘I need to go back to China‘. When pressed as to whether her agent had explained the basis of the delegate’s refusal by discussing why she needed to go back to China [Ms A] told the Tribunal ‘I do not understand‘. Asked if she was serious about wanting to remain in Australia [Ms A] replied ‘yes, because it’s Christian here and there is freedom‘. She added ‘I can’t understand my representative because he speaks in English, uses an interpreter and I cannot always understand the interpreter’. The Tribunal then summarised the basis on which the delegate had refused [Ms A]’s application for protection as set out on page 16 of the Delegate’s Letter. [Ms A] said she ‘previously did not understand but now I understand’.
Failure by the applicants to familiarise themselves with the reasons as to why the delegate refused [Ms A]’s current application for protection raises doubts for the Tribunal about the genuineness of their claimed fear of returning to China. This is especially so having regard to the fact that: this is, for each of the applicants, their second application for protection and they are familiar with the processes involved (although they denied this at the Tribunal’s hearings); they have gone to the trouble of obtaining multiple letters in support from members of the [Association 1] and the three churches they have attended since arriving in Australia attesting to the applicants’ level of integration with the community and their strong desire to remain in Australia; and especially, [Ms A]’s acknowledgement that this was ‘very important application’ that represented her ‘one and only last chance’ to stay in Australia. Further, the Tribunal notes that just before the hearing of 27 March 2015 concluded [Mr B] observed that if the Tribunal affirms the decision of the Department ‘I feel I would have just wasted the last 20 years in Australia’. When asked to explain this comment at the Tribunal’s hearing on 7 March 2016 [Mr B] replied ‘we came here in the hope of getting protection because there is persecution in China’. However, moments before when the Tribunal observed that he could have discussed the process with his friend [Mr F] from [Village 1] who was already in Australia and other church friends [Mr B] told the Tribunal that he ‘had no idea he could apply for protection’ so he ‘didn’t tell anybody’. He then clarified that he ‘did tell [Mr F], but not the details’. [Mr B]’s evidence reflects poorly on his credibility. The fact that [Mr B] did not discuss his application with [Mr F] in detail and seek his assistance to Lodge a fully documented credible application raises very serious doubts in the mind of the Tribunal regarding the truthfulness of his claim to fear persecution because of his religion.
Overall, the Tribunal has concerns that the applicants’ failure to familiarise themselves with the issues discussed by the delegate with [Ms A] in her interview (as set out in the Delegate’s Letter) and then provide the Tribunal with some evidence to address those issues, raises serious doubts for the Tribunal about the genuineness of their claim to fear returning to China for the reasons claimed.
Third, [Ms A]’s claims in relation to her persecution for falsely breaching China’s one-child policy and consequences arising from this gives the Tribunal some cause for concern as it is inconsistent with country information. The Tribunal accepts that, as set out in the Delegate’s Letter, the word ‘falsely’ should not have been included in [Ms A]’s claim on the basis that she confirms that she gave birth to a second [daughter].
In the course of determining whether she wished to proceed with her claim regarding breaching the one-child policy [Ms A] told the Tribunal ‘yes, because I will have to pay a fine’. As set out in the Delegate’s Letter, [Ms A] provided the Department with her original Hukou which includes details to her two daughters. A copy of the document in Mandarin has been placed on the Department’s file. [Ms A] told the Tribunal that she needed to produce her Hukou to the Chinese Consulate-Generals’ office in [Australian city 1] to obtain her current Chinese passport that was issued on [date] 2013.
Country information indicates that, until the 29 October 2015 changes to the ‘one-child policy’ not relevant for the purposes of this case, the Chinese government promoted one child per couple but that there have always been exceptions to the policy in situations where, for example, a rural couple’s first-born child is a girl.[14] Country information also confirms China has a ‘comprehensive system for birth registration’ which requires parents to register new children with the appropriate ‘household registration [hukou] organ ’within a month of their birth.[15] DFAT has indicated that out-of-plan children can obtain hukou registration once their parents pay the appropriate social compensation fee.[16] The Tribunal put to [Ms A] country information that the fact that she had a Hukou which includes details of both her daughters confirms that any social compensation fee payable in respect of her giving birth to a second child has already been paid.[17] [Ms A] mused that the Tribunal is ‘just listening to what the (Chinese) government says. I was sterilised’. When pressed in relation to country information that, having her Hukou which includes both her daughters’ names, indicates to the Tribunal that any social compensation fee that was payable has been paid [Ms A] responded ‘How can I answer? I wanted to have a son. In rural areas, you have no respect if you do not have a son. I will be arrested because they will say you must have gone overseas to have a son. People will look down on me’. [Ms A]’s evidence in this regard largely echoes the comments of [a Psychologist] in her letter of [March] 2015. The Tribunal acknowledged that, consistent with country information, many women in China are sterilised after having given birth to more than one child.[18] [Ms A] replied: ‘It’s a boy’s role to look after their parents’ and because she has ‘no son, it becomes a (livelihood) issue that has been caused by this’ (that is, her failure to be one and her sterilization). She quickly added if she goes back she ‘will be a Christian‘. The Tribunal observed that it accepts [Ms A] would practice as a Christian if returned to China and reiterated country information that to get her Hukou she must have paid any necessary fine for breaching the one-child policy. [Ms A] then replied ‘I didn’t pay the fine. I have been sterilised. Our Hukou has been cancelled and only the girls have their Hukou. In rural areas, it is different’.
[14] DFAT Country Report People's Republic of China, 3 March 2015, pp.14 - 15
[15] Huawen, L. 2004, The Child’s Right to Birth Registration – International and Chinese Perspectives, Norwegian Centre for Human Rights, pp.15-16 US State Department 2010, 2009 Human Rights Report: China, Section 6, 11 March 2010
[16] DFATCHN32173 RRT Information Request, 31 August 2010; DFAT CHN37505 RRT Information Request, 12 November 2010; DFAT CHN17471 RRT Information Request, September 2005
[17] China: CI150327164208633 Family planning – Sterilisation, 15 April 2015; China: CHN43501 Family planning - Children born out of wedlock in Australia – Family compensation fees – One Child Policy – Rural areas – Forced sterilisation, 13 October 2014
[18] Ibid; see also UK Border Agency Country of Origin Information Report – China, 6 December 2008, pp.119 -121
The Tribunal then put to [Ms A] country information that in order for her daughters to register for their own Hukou as claimed, applicants are required to provide the following documents to the local Hukou authority:
· the child’s Birth Certificate;
· the parents’ Hukou booklets, identity cards and, if relevant, passports;
· a Certificate of Marriage;
· a receipt issued by the local Family Planning Committee to show that the social compensation fee has been paid if the child is born contrary to family planning laws.[19]
[Ms A] response that ‘it’s different in rural areas’ is inconsistent with country information. In light of [Ms A]’s admission that her daughters have their own Hukou as well as the fact that she was able to produce her own Hukou for the purposes of obtaining a passport in July 2013 from the Chinese Consulate-General’s office in [Australian city 1] it is evident to the Tribunal that any social compensation fee payable in respect of having a second child has been paid, or, in the alternative and consistent with country information [Ms A] was permitted to have a second child because she lived in a rural area. In the circumstances, the Tribunal rejects [Ms A]’s claim that, as a result of breaching the one-child policy, she will have to pay a substantial penalty or fine. Based on evidence provided, it is clear that either the relevant social compensation fee payable in respect of the birth of her second daughter has been paid despite [Ms A]’s assertion to the contrary or, having lived in the rural area of [Village 1], she was permitted to have a second child as her eldest is a girl.
[19] DFAT Background Paper – China: The Hukou, February 2013, p.26
In passing, the Tribunal notes that based on country information it concurs with the [Ms A]’s claim that her Hukou has been cancelled. However, although it is cancelled, a Hukou does not expire and people returning to China are merely required to re-register for their Hukou at the Public Security Bureau in their place of residence and a provincial level PSB organ will then check and re-issue their Hukou.[20] Further, Elaine Ho from the Centre of Excellence for Research on Immigration and Diversity in British Columbia states in a 2010 report that citizens returning to China generally appear to have no difficulty in restoring their previous Hukou, provided they have not obtained foreign citizenship. There is no evidence before the Tribunal’s that [Ms A] and [Mr B] have obtained foreign citizenship.
[20] Ibid p.2
DFAT reports that the situation may be different for a citizen who departed China illegally, since not having a valid identity card or passport may delay registration or lead to the denial of a Hukou.[21] However, although [Ms A] and [Mr B] each told the Tribunal on 7 March 2016 that they left China on false passports respectively in 1996 and 1998 they have nonetheless provided the Tribunal with passports issued by the Chinese Consulate-General in [Australian city 1] on [date] 2013 valid to [date] 2023. In the circumstances, country information indicates that they should have no difficulty re-registering for their Hukou. The Tribunal finds the applicants’ conduct in departing China on false passports would not give rise to a real risk of significant harm.
[21] CI150619090919476 PRC Exit-Entry Administration Law - Overseas Chinese-Hukou 14 July 2015; see also DFAT Report of the Second Australian Human Rights Delegation to China 8-20 November 1992
Fourth, [Ms A]’s evidence to the Department and the Tribunal in relation to her Christian faith in China is vague and contains multiple inconsistencies. Overall, the Tribunal did not find [Ms A]’s evidence in relation to her practice of Christianity in China to be persuasive.
As noted above, in her first application for protection in 1996 and her subsequent application to the RRT, [Ms A] made no reference to having a religion nor did she make any claims regarding her religion. It was only 12½ years after arriving in Australia and having attended Christian services for a number of years in at least 3 different churches in [Australian city 1]that, for the first time, in her second application for Ministerial Intervention lodged in 2009 that [Ms A] claims she was a Christian in China and that this was one of the reasons why she left China. She told the Tribunal that she blames her former agent for ‘mixing up’ her claims and not including claims about her Christian religion in her first application for protection. As noted above at paragraphs [32] - [33], it is the Tribunal’s view that if [Ms A] had a genuine fear of persecution in China or had any desire to provide accurate information or be truthful with Department, she would have taken steps to familiarise herself with her first protection application put together by her agent and ensure that it was correct. It appears to the Tribunal that [Ms A] took absolutely no steps at all to acquaint herself with her first application for protection, her subsequent application to the RRT as well as her first application for Ministerial Intervention in 1998 and was entirely unconcerned about the fact. Alternatively, she could have sought guidance and assistance from [Mr F] who not only comes from the same village of [Village 1] and who introduced her to [Church 1] but who, she says, picked her up from the airport when she arrived in Australia on [date] October 1996. She decided to proceed with these applications and, as confirmed by her statements in her Statutory Declaration of 28 March 2009 lodged with her second application for Ministerial Intervention, paid her agent for his services in lodging applications that contain claims she now says she knew nothing about. [Ms A] also claimed her agent did not tell her about the RRT’s invitation for a hearing and yet, implausibly in the mind of the Tribunal, she used the same agent - and paid him - to assist her with her subsequent application for Ministerial Intervention in 1998.
The Tribunal indicated to [Ms A] that it would ask questions in relation to some of inconsistencies identified in the Delegate’s Letter including those regarding her claimed Christian faith in China. She immediately responded that ‘last time my mind was a blank. I kept saying I wanted a break’. The Tribunal observed that there were 3 breaks in the course of the interview, only one of which was initiated by her. Having listened to the interview again, the Tribunal confirms there were, in fact, 4 breaks of which only one was initiated by [Ms A]. It appeared to the Tribunal that [Ms A] seemed to have no difficulty answering the delegate’s questions or understanding the interpreter. The delegate specifically asked her to raise issues for clarification if there were any concerns in relation to the interpretation of questions. The Tribunal is not persuaded that [Ms A]’s mind was a blank. She appears to have been actively engaged in the interview process and elaborated on her responses on a number of occasions without being specifically asked to do so.
The Delegate’s Letter notes that in [Ms A]’s letter to the Minister dated [March] 2009 in connection with her second application for Ministerial Intervention (the first time reference is made to her Christian beliefs) [Ms A] states she became a Christian because her husband and all her husband’s family were Christian. In that letter she states: ‘I followed my husband and went to the family church meetings and fellowship meetings with our children’. However, inconsistent with this evidence, and as noted in the Delegate’s Letter, at her interview in April 2014 [Ms A] told the delegate her husband’s family were not Christian and that she found out about Christianity from a friend who took her along to an underground church attended by 10 - 20 people to listen to a preacher. The Tribunal asked [Ms A] about becoming a Christian. She said she became a Christian when she married her husband and that ‘his grandparents, as well as his uncle, were Christians’. She added that ‘in China, if you marry a Christian, it means you must be Christian as well’. Asked about inconsistent evidence information provided to the delegate and noted in the Delegate’s Letter, [Ms A] justified her statement to the delegate that her ‘husband’s family were not Christian’ on the basis that she had been ‘talking about his father, who was a member of the Chinese Communist Party’. [Ms A] told the Tribunal his membership of the CCP would be ‘cancelled’ if he became a member of the house church: however, she added her husband’s parents ‘were considering joining the church’.
At the hearing on 7 March 2016 [Ms A] told the Tribunal for the first time that her father-in-law was taken into questioning and detained for one night in relation to her husband’s activities in Xinjiang Province helping his uncle, because his uncle had leg problems. [Ms A] told the Tribunal that just before the police came to her home to arrest her husband he managed to escape and he went into hiding: he went back to Xinjiang Province. The Tribunal raised with [Ms A] its doubts that her husband would escape to the very place where the applicants claim he had helped his uncle spread the word. She responded: ‘in China there is a saying that the most dangerous place is the safest’. The Tribunal is not satisfied with this explanation. It appears implausible to the Tribunal that [Mr B] would return to Xinjiang Province in these circumstances. Later in the hearing, the Tribunal put to [Ms A] consistent with s.424A of the Act that [Ms A]’s husband had failed to mention his religion when he applied for protection by which time she had been in Australia for nearly 2 years and during which time she claims she had been attending [Church 1]. Once again, [Ms A] blamed the agent involved. She told the Tribunal: ‘My husband’s lawyer said say it the same way … just apply the same way (based on one child policy)’. [Ms A]’s changing evidence to the Department and the Tribunal about how and when she became a Christian and, in particular, her raising a new claim of her father-in-law being detained overnight, raises doubts regarding her credibility.
As noted in the Delegate’s Letter, [Ms A] told the delegate that she was not aware of her husband experiencing any harm, or being wanted by the authorities in relation to his activities, religious or otherwise, before he left China. However, inconsistent with this evidence she told the Tribunal that ‘On Chinese New Year’s Day in 1996 … I was visiting my [sister] in Guangxi. I received a call from my husband. He said he was chased by the Government and he told me not to return home because I would be arrested if I returned‘. Further, as noted in the Delegate’s Letter, in her application to the RRT in relation to her first Protection visa application [Ms A] states that it was when she was in Australia in late 1996 that she received a phone call from family in China warning her that she was in danger because her name had been added to a Black Name List owing to her breaching the one child policy and that she should not return. [Ms A]’s changing evidence to the Department, the RRT and the Tribunal about what prompted her to leave China and apply for protection does not reflect well on her credibility.
[Ms A] also gave inconsistent information to the Tribunal in relation to her children’s attendance at the family church. Asked whether her daughters were baptised, [Ms A] replied ‘in China, children are not allowed to go to church’. When the Tribunal noted it has seen country information with books that contained many photographs of children attending registered church in China[22] [Ms A] replied that ‘the official church is different from family churches’. However, she again told the Tribunal that the government says that children not able to go to church. As noted above, this comment is inconsistent with country information. Shortly afterwards, [Ms A] said that she took her youngest daughter to the house church with her and then, later in the course of the hearing, she said she took her eldest daughter, and yet later in the hearing, she said she took them both. [Ms A] also told the Tribunal that her daughters were not baptised because she ‘needed to wait until they were grown up before they can be baptised. They can choose themselves. It’s not right to make a decision for them’. [Ms A]’s ignorance of the Chinese government’s policy and practices in relation to attendance by children at church parents raises doubts in the mind of the Tribunal as to whether she is aware of practices in churches in China, either government approved Christian churches or house churches.
[22] US Department of State 2014 Report on International Religious Freedom – China 14 October 2015, p.5, OGD95BE925982
[Mr B] was also asked about his becoming a Christian. He told the Tribunal ‘in my family it was my grandfather and a maternal uncle who were Christian’. Inconsistent with [Ms A]’s evidence to the Tribunal, [Mr B] made no reference to his grandmother. [Mr B] told the Tribunal that he had taken his uncle to Xinjiang Province for two months ‘to spread the word’ but that his uncle was arrested a week after he got home for Chinese New Year in January 1996. He said he managed to get away just 15 minutes before the police arrived at his home in [Village 1] to arrest him for helping his uncle. [Mr B] said he phoned his wife in Guangxi and told her not to come home. He said he went to live with in Urumqui in Xinjiang (the same province where he said he had gone with his uncle before Chinese New Year 1996) for 2 years where he helped his sister with her business. When questioned in relation to the absence of any reference to Christianity in his first Protection visa application he said it was ‘the agent’s problem’.
The Congressional-Executive Commission on China (CECC) states in its 2014 Annual Report that ‘Protestants who choose not to affiliate with the TSPM worship with unregistered ‘‘house churches,’’ which are often subject to interference, harassment, and abuse during peaceful religious activities’.[45] The CECC report went on to state:
[45] Congressional-Executive Commission on China (CECC) 2014, Congressional-Executive Commission on China Annual Report 2014, 9 October, ‘Protestantism’, pp. 95-6 < CIS2F827D92282
Chinese authorities continued to harass, detain, imprison, and interfere with the religious activities of members of both registered and unregistered Protestant communities who ran afoul of government or Party policy. Authorities throughout China interrupted house church gatherings and proselytizing activities, took participants into custody, and blocked access to sites of worship. This past year, the Commission also observed a trend of increasing government harassment against officially sanctioned TSPM churches.[46]
[46] Ibid
China Aid also reported a significant change in 2014 as the CCP had adopted ‘perhaps the most severe suppressive measures since the Cultural Revolution by targeting TSPM churches in addition to house churches’.[47] A ‘government-sponsored campaign to suppress and eradicate the house church movement’ had been reported across China, with numerous house churches being forcibly closed, approximately 100 church buildings demolished, and thousands of religious practitioners subjected to criminal or administrative penalties by the public security bureau.[48]
[47] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.9 < > CISEC96CF1731
[48] Ibid p.2
Gerda Wielander notes in the 2013 publication Christian Values in Communist China that while use of the terms ‘official churches’ and ‘house churches’ implies clear distinctions between the two, the reality is that the sector is diverse and varied. Wielander also describes a range of reasons, some more practical than spiritual, as to why people choose to attend either an underground or official church:
There are many reasons why people worship in one or the other type of church; often the reasons are practical rather than theological let alone political, although the emergence of the phenomenon of ‘house churches’ is usually linked to political developments. Some stress theological differences which became more apparent in the early 1950s as an important factor in the development of ‘house churches’, others see the radical politics of the late 1950s and 1960s in which Chinese Christians – like all other Chinese people – got caught up, as key to the emergence of ‘house churches’ (see Gao S. 2005 and Bays 2012).
Today, there are mostly new and different reasons why people do not attend the ‘three-self’ churches, some mundane, others more spiritual. Following the growth of the city, the distance to the (few) TSPM churches can be too far; others cannot make the Sunday service for work related reasons, so are attending mid-week services at unregistered churches. For many of the increasingly educated urban Christians, the quality of the TSPM pastors is simply not high enough. Some believers, who are educated and were baptized abroad, may have theological differences with TSPM churches, and ‘house churches’ can offer a more communal and more intimate experience than their TSPM counterparts (Gao and He 2011).[49]
[49] Wielander, G 2013, Chapter 1 An introduction to Chinese Christianity today: key questions and issues’ in Christian Values in Communist China, p.16, ebook, CISNET CIS28659
According to Brent Fulton, the editor of the ChinaSource website[50], there are a handful of triggers which greatly increase the likelihood of official action against a particular Protestant church group, including (real or perceived) foreign involvement in religious activities or political motives; size and scope of the unofficial group (it is generally considered safe to have unofficial “house” meetings of 30-40 people; degree of corruption and greed among local officials. Similar kinds of factors were identified also by David Schak who studied a number of cases of government actions against churches, asking why the authorities cracked down on these particular churches when there are tens of thousands of others against which no actions were taken, and why, even in the cities in which crackdowns occurred, one or a few house churches were harassed but far more were left alone. [51] Schak concluded that perceived threat, size, visibility and local government attitudes as factors which could lead to interference in a church’s activities.
[50] The website describes itself as ‘ChinaSource – a trusted resource for the Christian community providing critical knowledge on serving the Chinese church and society. .. ChinaSource was founded in 1997 as a cooperative effort of the Evangelical Fellowship of Mission Agencies, Interdenominational Foreign Missions Association, World Evangelical Fellowship and the Billy Graham Center, who foresaw the need for a non-profit organization devoted to being a catalyst and connector among China-serving leaders.’ < Accessed 18 March 2013
[51] Schak, D 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2, p.92 < CIS26836
A recent report addressing the situation in China has been released by Christian Science Monitor.[52] The report looks at the attacks and destruction of official Protestant churches as well as unofficial ones in the province of Zhejiang in 2014. It also notes that the Director of the Centre on Religion and Chinese society at POD University in Indiana, Professor of Sociology, Fenggang Yang, estimates that based on current growth rates China will have 245 million Christians by the year 2030 – making it the world’s most populous Protestant nation. Details of the destruction of up to 10 churches (both registered and unregistered) and over 400 crosses in Wenzhou are also detailed in other press articles.[53]
[52]
In a response to the anti-church demolition campaign that has ‘infuriated China’s fast growing Chinese population’ and drew international condemnation, Bishop Paul Meng Qinglu, the Deputy Chairman of the Communist Party controlled Chinese Catholic Patriotic Association Beijing advised in mid- March 2015 that the Beijing government has ordered authorities in Zhejiang province to ‘stop demolishing’ churches and crosses. Bishop Qinglu advised that Beijing has issued an ‘internal order’ to end the demolition of churches and crosses. [54]
[54] CXBD6A0DE2876: "China ‘ends’ anti-church demolition campaign’ 21 January 2015; see also align="center">oOOo
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