1409752 (Refugee)

[2015] AATA 3691

1409752 (Refugee) [2015] AATA 3691 (20 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1409752

COUNTRY OF REFERENCE:                  China

MEMBER:Meena Sripathy

DATE:20 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 20 November 2015 at 2:25pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia [in] January 2008 on a passport of the People’s Republic of China (China) and holding a Student Guardian visa (TU 580).  She lodged a Protection visa application [in] April 2009, with her son, [name], listed as a member of the same family unit.  This application was refused by a delegate of the Minister for Immigration [in] July 2009 and the decision was affirmed by a differently constituted Refugee Review Tribunal (RRT) on 31 December 2009.  Judicial review of the RRT decision, sought by the applicant to the Federal Magistrates Court, was dismissed [in] September 2010.  After this the applicant requested Ministerial intervention under s417 of the Act, but this was declined [in] January 2011.

3. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicant was eligible to have her claims assessed against the Complementary Protection criterion, and on that basis, she lodged a further application for a Protection visa [in] December 2013. That application was refused by a delegate of the Minister for Immigration [in] May 2014 and is the subject of the present review.

   Validity of the application and the Tribunal’s jurisdiction

4. Section 48A 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 made an application for a Protection visa which has been refused.  However, in SZGIZ v MIAC, the Full Federal Court held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa 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 v MIAC, the Tribunal does not have power to consider the Refugee Convention criterion in s.36(2)(a), and, accordingly, has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

5. Therefore, the issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to China, there is a real risk that she will suffer significant harm.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

7. Information in the applicant’s protection visa application form indicates she is a [age] year old woman from Fujian Province in China.  She speaks and reads Mandarin.  She is married, and has [children].  Her husband and [one child] reside in China and her [son], [name] is in Australia and was included in the current Protection visa application as a member of her same family unit. Although the son’s application was also refused by the delegate, the Tribunal notes that he was not included in the review application to the Tribunal and therefore it has no jurisdiction in respect of the applicant’s son in the present review.

8. The applicant provided one residential address in Fuqing City Fujian province until January 2008 and states that she has had [number] years education to [a certain] level.  She states her occupation as [deleted] and provides no details of any previous employment.

9. In response to the questions about why she left China and her claims for protection, the applicant states that she came to Australia as a guardian for her son who was an overseas student. She states that she has been intimidated by neighbours who have strong political backgrounds and has been mistreated by the authorities.  The applicant claims she is in fear of practising her religious beliefs; in fear of claiming her right to access her property and in fear of mistreatment if she returns to China. She explained that they used their land and money collected by adherents to build a road to access the house church.  A cross was erected which allegedly offended their neighbours who have different faiths.  She claims that after the road to access the church was constructed, they demolished it and took their land without consideration.  They built a brick wall to prevent them making a crossing. Because they have the authorities’ support the applicant has been unable to claim their right of land use for constructing a road.  The applicant claims that if she continues to practice her faith, they regard the practice as offensive to them and will report them to the authorities who will accuse them of being an illegal gathering and dispersing the adherents. The applicant states that if removed to China she will continue to practice the Christian faith and will suffer harm and mistreatment.  She will claim her right to land taken by her neighbour and rebuild the road to access the church and will therefore be harmed by the villagers. She states she only has [a certain level of] school education and cannot obtain any job other than labouring and therefore won’t be able to survive because she cannot generate enough income for food and accommodation by moving elsewhere in China.  The applicant claims that she will not be protected by the authorities because they collude with the villagers.

10. The applicant indicated that she left China on her own passport, and had no difficulties obtaining her travel document in China.  She states she is in contact with her relatives in China by phone. 

    Previous Protection visa application

11. In her first Protection visa application made in April 2009 the applicant’s claims were based on her being a Christian in a house church since childhood.  She claimed that her father was a leader of the house church and had been imprisoned for over two years in the late 1970’s and fined.  These punishments caused great hardship for the applicant during her childhood. After her marriage in 1988, her husband and children also became Christians.  His family discriminated against them.  In 2007 their church meeting place was searched by police and she was taken away for questioning and threatened with serious punishment if they continued to gather.  The applicant left China soon after this and came to Australia.  In Australia she has been attending church regularly. 

12. At the review before the Refugee Review Tribunal (differently constituted) relating to the 2009 application, the applicant elaborated on her claims.  In its decision affirming the refusal of the application, the Tribunal accepted that the applicant was, and had been for many years, a Christian and accepted that her father may have been persecuted many years ago for religious reasons.  However, having regard to her evidence and independent country information about Christianity in China in the current period, the Tribunal did not accept the applicant’s claims relating to her church activities prior to coming to Australia and her claims of persecution on this basis.  The Tribunal rejected her claims of belonging to a house church was which banned or otherwise restricted by authorities.  It rejected her claim that her church was searched by police and she was arrested and threatened with harm if she continued to practice her religion. The Tribunal did not accept that the applicant was under surveillance and had no religious freedom in China, that she was discriminated by her husband’s family for reasons of religion, or that she had to modify her practice of religion because of police actions.  The Tribunal concluded that the applicant did not face a real chance of serious harm from authorities in the reasonably foreseeable future for reasons of her religion.  In reaching its conclusions, the Tribunal referred to inconsistencies in the evidence before it relating to the applicant’s claimed experience of persecution in the past, the delay in making her application for protection after coming to Australia and independent information about Christians in China and religious freedom in Fujian province in particular.

    Interview with delegate [in] May 2014

13. [The applicant] was interviewed by a delegate of the Department of Immigration in relation to the present application [in] May 2014. The Tribunal has listened to the audio recording of this interview and notes the following information that was provided.

14. She confirmed that she was born in, and lived in [name] town until her marriage in 1988, when she moved to [name] village. She has been a Christian all her life as are her parents and [siblings]. They have always practised in house church gatherings. Her mother is still alive and continues to practise her religion, as do all her siblings.

15. Her husband’s family forbade her to practice her religion and she ran away briefly to [location] for two months in 1996.  In 1998, her husband became a Christian also. He lives in [name] village now, but he does not engage in much religious activity because of the harassment. His mother lives nearby and visits him. 

16. The applicant attends church in Australia in [Suburb 1].  She referred to the church as ‘the meeting place,’ it is opposite to [supermarkets]. She reads the bible in the evenings, but not every evening.  She attends church on Sundays from 10 am until about 12pm. There are also meetings on Saturday evenings but the applicant does not attend these because she moved farther away and has [health condition].  

17. The applicant stated that prior to coming to Australia, her church was meeting in groups of about 10 people at [name] and [name]’s house.  In the first month of the lunar calendar when migrant workers returned, the numbers would increase to 20-30 people. In 2006 the church community decided to pool money to build a road to access the church. About 65,000 yuan was collected and construction commenced in the summer of 2006 and was completed by October. After it was constructed the neighbours blocked the road when they saw the gathering.  The delegate asked the applicant if the road was completed and blocked prior to her departure to Australia. She confirmed that it was. The delegate asked, why then did she not mention this incident in the first protection visa application or to the RRT. The applicant explained that there were so many things to say at that time and she was not given the opportunity to mention it, but she is now.

18. The applicant was asked if the church continues to gather on a weekly basis now.  She said it does not because the harassment starts every time there is a meeting.  The police are called and the gathering is declared illegal. The applicant stated that the land on which the road was built belonged to her and they also took her land.

19. The applicant stated that she came to Australia because her son was studying but also to avoid this incident. She wanted to have that road to be able to have the gatherings but if she continues to push for the road she will be harmed.  She stated that her husband is the leader in her church and she is second in charge.  She then said that he does readings and  prayers and visits people who are sick and has gatherings.  Since coming to Australia she has seen how people can have religious freedom and she wants that if she returns to China.

20. The delegate put to her that independent information suggests that many Christian practice freely in Fujian in registered churches and asked her if she has considered a registered Church. In response the applicant said the government does not report correctly in China.  A brother was arrested in the Church, at that time she could still walk and run but now she cannot.

21. When asked if her fear of harm is from villagers who prevented her from building a road to her gathering place, why can’t she gather elsewhere with better access. The applicant responded that she must have the land that they took. She believes if she moves to another place they will still harass her.  She can only gather in secret.

    Tribunal hearings

22. The applicant appeared before the Tribunal to give evidence and present arguments on 21 April 2015 and again on 4 September 2015, following reconstitution of the matter to the current Tribunal. The Tribunal hearings were conducted with the assistance of interpreters in the Mandarin and English languages. The applicant’s representative was not in attendance at either of the hearings. A summary of relevant evidence provided by the applicant to the Tribunal follows. 

    Hearing 21 April 2015

23. She confirmed that her son is now married and decided not to pursue his protection visa application. They had a marriage banquet last year, but the marriage certificate was obtained in January 2013. She said she sees her son often.  He lives in [suburb] and is still with his wife. She doesn’t know the status of his partner visa application.

24. She paid a friend RMB 2000 to get her passport because she was not able to get it herself as ‘all eyes’ were on her.  She said the passport was given to her just before she boarded the plane.  She does not know how her son got his passport. The Tribunal put to her that her son’s passport was issued the same day as hers so it seems strange for her not to know how he got his.  She repeated that she had no involvement in getting her son’s passport.

25. She started to look for a way to get out of China from the first month of 2007 and she came here [in] January 2008. When asked why it took her 15-16 months to lodge her protection visa application, she said she did not understand how things were done here.  She was just thankful to be able to stay here.  Jesus gave her a pass. She got a passport and was happy for that.  She did not know anyone here, but had a name of a brother from [location] and she called him to ask about a church here. She called him the second day after arriving. The Tribunal again asked why then it took 15 months to lodge a protection visa.  The brother told her that she was at home already.  He arranged for someone to take her to the church. She did not talk to him about her safety, when he told her she arrived home she was comforted.

26. The applicant confirmed that the address provided in the application from 1999 to 2008 was her property. Before that she was in her village but was kicked out in 1996.

27. She attended school only to [a certain] school level.  She started late because of her father’s arrest and detention when she was around [age] years old.  Because of this she started school at [age] years of age. 

28. When asked what she is afraid of if she returns to China, the applicant said that she would seek to get her land back because it was taken away and she would have disputes. She said she will not go back except to heaven. Jesus took her out of China so she would not have bloodshed. There is no religious freedom in China. She has no money and no power. She only has Jesus.  She has injuries all over her body. 

29. When asked who she fears harm from, the applicant stated that she fears all the people in her village and the people from the religious bureau. She also cannot work because she fell and suffered an injury at work in 2012. She hasn’t worked since the accident.

    Hearing 4 September 2015

30. The applicant told the Tribunal that last May her husband’s property, where they previously lived, was sold and she has nowhere to go if returned to China now.  She does not know where her husband and [child] are living now. 

31. When asked why he sold the property, the applicant said that the neighbours forced him to sell.  She said she explained it in her application. The land in front of her house, on which they built a road, was taken by the neighbours. Since the house was sold, her husband has had no fixed address. He has been staying with relatives around Fuqing City. The applicant does not know where her [child] is.  [The child] was studying in 2008 when she left China, doing vocational training in [a] Province and [the child] lived near the school.  Her last contact with [the child] was some time ago, after [the child] had returned to [name] Town. She then said she last spoke to her husband and [child] after the previous hearing. They were living with relatives in a rural area in Fuqing.

32. The applicant confirmed that her parents and [siblings] live in China.  [Some siblings] live with her parents in their home village. Her [other siblings] are married and live in Fuqing and Fuzhou. The whole family are Christian and practice their religion, but rarely go to church. She is in regular contact with her mother and siblings in China.  They are in a better situation than her.  When asked if they have reported any problems recently, she said she has not been in contact because her own physical health has not been good.

33. In China before she came to Australia she only worked occasionally, she mostly cared for the children. Her husband worked in [an] industry. He is still working in that area.

34. The Tribunal asked the applicant about how she departed China.  She confirmed her previous evidence that she paid money to get her visa and passport. She received the passport at the airport. She could not apply for it directly herself because she was under surveillance.  When put to her that independent information suggests that people have to apply in person for a passport in China from their local PSB, the applicant said that corruption is everywhere in China and she paid money to get hers.  She was given the passport at the airport.

35. When asked why she left China she said she was a Christian.  Her husband’s family and the other villagers were not Christian, but on her side of the family everyone is Christian and have been since the days of her grandparents. She practiced from a young age, praying at home or other people’s homes, in groups of 10-20 people. The sessions involved singing hymns, reading the Bible. One experienced person read 1-2 sentences from the Bible and shared with the others.  The elderly and children are illiterate.  They never prayed publicly, only inside.  After she married in 1988 she moved to her husband’s village.  She continued her church activity but encountered some disapproval. His family did not allow her to attend gatherings.  For a period she stopped for the sake of her children. Some 10 years after marriage, her husband started to believe also. Between 1988 and 1998 the applicant only attended gatherings occasionally and in secret.  She encountered no official interference in this period, but she felt community and family discouragement.

36. After her husband became a Christian, they started to attend a gathering in the home of one of the villagers.  In around 2006, he had placed a cross on his house to represent it as a church.  His next door neighbour objected to the cross. He would report to the police that there was an illegal gathering. In 2007 the police came to their gathering place at the home of [name] and [name], who were two brothers.  At that time they lived in one house, and the applicant and her husband had been meeting there for some 5 years.   When the police came they took the applicant away, as she was standing in front of the group teaching hymns. There were about 50-60 people present that day.  It was a bigger than usual group because it was the second day after lunar new year. There were larger groups like this once or twice a year only. The usual size of the group was 30- 40 or sometimes less, around 10. The usual group met once a week, on Sunday and would read the Bible, sing hymns and pray.  On Wednesdays and Fridays they may also gather and have prayer meetings.

1. When the police came that day they only took her away. The others ran away.  She was taken to the police station and questioned about why she was there.  They told her it was an illegal gathering and warned her not to do it again. It was around 10pm at night when the police came and took her to the station.  She was kept there that night, and released in the morning.

2. The applicant said her role in the church was to lead the group in singing hymns. Other people who have roles in the gatherings are her husband and another sister. They were not taken away that day because only she was standing when the police came.

3. After this they only gathered secretly, in other brothers and sisters homes. The cross on the house was never taken down. The Tribunal asked the applicant if the police did anything else when they came.  She said they did not, they only warned them and did not take anything, because there was nothing but desks and chairs to take.

4. The next problem she had was when the road was closed. The community had contributed funds and built this road to provide more convenient access to other places and public transport.  Both believers and non believers in the community had contributed to building the road.  Then they started to block access to this road between her house and the Church, initially using a fence and later using bricks.  Only her access to the church was affected by the road block. She complained about the road block to the leaders in the village but they didn’t do anything. She went into the town but got no assistance. She tried to get reporters to write about it but someone controlled the newspapers and so the story was never published.

5. The Tribunal asked if she had any other incidents.  She said the police came again one day but she was not home. Her family told her they came looking for her. Her sister in law was home next door. There were no other incidents or experiences relating to her religious practice.  But she was aware of the warning the police had given her after the incident in 2007 and she had a shadow in her heart from this time.  The applicant referred to the shadow in her heart being caused by the arrest and detention of her father for 3 years when she was a young child. This and her own detention in 2007 are the only specific incidents she has experienced. 

6. The Tribunal asked the applicant about her claim regarding the taking of her land.  She said that she did not want them to occupy her land.  But since then they have forced her husband to sell the house and they do not own it anymore. If she returns to China she will fight to get her house and land back. The Tribunal asked for more detail about what happened to her house. She said she is only in contact with her family once every few months because she gets too bothered by these things. Her husband told her he sold the house.  She did not agree to it.  When she rang her [sibling] about it, [the sibling] told her the sale had already occurred. The applicant felt so upset by this and the next day she had her work accident here.

7. The Tribunal put to her that it did not understand how her house being sold caused her to fear return to China.  The applicant was unable to explain this further.  She said many things have happened to her since she has been in Australia. She is very upset and does not know how much longer she will be in this world. If she goes back she will spread the gospel because she is not attached to anything else in the world. She has got used to church life here in Australia and would want to bring the gospels to them in China.

8. The Tribunal asked the applicant about her Church practice in Australia.  She said she started to attend church here since she arrived. She attends in [Suburb 2], it is a rented place. The place does not have a name, it is known as a ‘gathering place’. She attended in [Suburb 2] until they moved to [Suburb 1]. They bought a place in [Suburb 1], and it is only used for that purpose. She attends regularly until now.  The leader of the church is [name] but she has not seen him for a while.  Brother [name] is now giving the sermons.  The Tribunal noted that she had not brought anyone from the Church to given evidence in support of her continued attendance and practice at Church and asked her why not.  She said she did not want to bother them because everyone is so busy.  The Tribunal asked her to describe what happens during the Church services here. She said first there are hymns from 9-9.30, then from 9.30-10.30 they have sermons and at 2 pm they have Holy Communion. The sermons involve the pastor reading some sentences from the Bible and they analyse it and share it. 

9. The applicant said she does not participate in other activities of the Church these days.  She used to attend family gatherings but the meetings are held at night and her mobility is not good.  She used to help at the Church with cleaning, distributing leaflets but she does not do this anymore because of her injuries.  The Tribunal asked if she has gone out to ‘spread the word’. She said she has in the past. When she worked [three] years ago she did that. Now she also does it sometimes.  When asked to elaborate on this, she said when she is on a train if she meets someone who speaks the same language she will share with them her belief in God. 

10. The Tribunal asked the applicant if her husband is still practising Christianity. She said he is not because he suffered all these years and he has no place to live. She said in China it is very bad to lose your own house. The warning given to her also applied to him. If he is caught attending a gathering he may be arrested.

11. When asked what will happen to her if she returns to China, she said she will continue to spread the Gospel and attend activities as usual and she will be arrested because of this. She will persuade others to believe in God.  When the Tribunal put to her why she would do this if she was not doing it previously in China, she responded by saying how do I know that she was not.  How were there so many people attending their Church there?

12. The Tribunal put to the applicant country information that suggests there is relatively more religious freedom in Fujian Province than elsewhere in China and that there were a large number of Christians there and many are able to practice in unregistered churches without interference from the Government or authorities. In response the applicant referred to the duty to spread the Gospel everywhere. She said of those who spread words/Gospels in the Bible there is no one who does not suffer.  In China she is just dust in this world.  In China her husband tried to get reporters to report on their case, but the news is suppressed and controlled. China is a Communist, Marxist country.  All the leaders, officials and policeman are non-believers, they would not get their position if they were so the country is led and run by non-believers and they will not help Christians.

13. The Tribunal put to the applicant that there have been a number of inconsistencies in her evidence about past events, which it would put to her for comment in writing after the hearing. It explained that such inconsistencies may lead the Tribunal to doubt her credibility and it may not accept her claims on this basis. It also put to her that her claim regarding the forced sale of her house was lacking in detail and it is for her to make her case.  She said a powerful family in the village forced her husband to sell the house.  His life would be in danger if he resisted. The house was demolished and a new one is being constructed.  But the title of the land has not yet changed. She does not know who owns the new construction.  It was arranged by a villager in a neighbouring village.  They were given RMB 100,000 in compensation.  Her husband has not done anything about it.  Because of her current health she cannot do anything to support her family.

14. Following the hearing the Tribunal wrote to the applicant and invited her to comment on certain information which if relied on may lead it to affirm the decision. The Tribunal provided particulars of information she gave in her previous protection visa application about the claimed incident in 2007 at which the police attended her church gathering.  It also mentioned her failure to mention in her previous application the issues about the erection of crosses on her church meeting house and the blocking of the road, and its concern that these are significant matters for her to not mention in her first protection application and her failure to do so may indicate that she fabricated these claims in this application.

15. The applicant responded to the Tribunal’s letter on 21 September 2015 with a statement.  She explained that she does not understand the difference between the word “detain” and “taken” due to her low level of education.  She is certain that she was ‘taken’ to the police station in 2007. She attributes any other differences in her evidence to misinterpretations or misunderstanding by the interpreter. Regarding her failure to mention the matters relating to the crosses and the road block in her first application, the applicant stated that she answered questions asked of her at the previous Tribunal hearing, and she did not mention these matters because she was not asked about it. She stated that in her view the offence caused to her neighbour by the cross and the road blocking access were neighbourly disputes and not persecutory behaviour by the government and that is why she did not regard it as subject matter in her 2009 application.   She confirmed that the cross has never been taken down from the house church in China.    

    Independent information Christianity in China

16. Estimates as to the number of Christians there are in China vary widely.[1] The 2011 Blue Book of Religions produced by the Chinese Academy of Social Sciences, a research body directly under the State Council, reports the number of Protestants as between 23 and 40 million.[2]  The State Administration on Religious Affairs (SARA) reported in June 2010 that there were 16 million Protestants affiliated with the Three-Self Patriotic Movement (TSPM).[3]  In 2012 the Pew Research Center estimated that there were 68 million Protestant Christians, including 23 million affiliated with the TSPM.[4]

    [1] ‘Tiananmen Square leader and other experts describe growth of Christianity in China 2014,’ Brookings Institution, 3 June < CISA447F082968; Immigration and Refugee Board of Canada 2012, CHN104189.E China: Estimates of the number of Christians, particularly in the provinces of Fujian, Guangdong and Liaoning, CHN104189.E, < CISNET 3882 ; Department of Foreign Affairs and Trade (DFAT) 2015, Unregistered religious organizations and other groups in the People’s Republic of China, March, p. 5, CISEC96CF1260

    [2] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section 1, p.2  < OG54B544637

    [3] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section 1, p.3  < OG54B544637

    [4] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section 1, p.3  < OG54B544637

17. An overview of religious freedom in China contained in the US State Department International Religious Freedom Report for 2013 states that only religious groups belonging to one of the five state-sanctioned ‘patriotic religious associations’ (Buddhist, Taoist, Muslim, Catholic and Protestant) are permitted to register with the government and to hold worship services legally.  Other religious groups, such as Protestant groups unaffiliated with the Three-Self Patriotic Movement (TSPM), the patriotic religious association for all officially recognised Protestant churches, and Catholics professing loyalty to the Vatican, are not permitted to register as legal entities.  Proselytizing in public or meeting in unregistered places of worship is not permitted.  Tibetan Buddhists in China are not free to venerate the Dalai Lama and encounter severe government interference in religious practice.  Religious groups independent of the five patriotic religious associations are vulnerable to coercive and punitive action by the State Administration for Religious Affairs (SARA), the Ministry of Public Security and other party and government security organs.[5]

    [5] US State Department, International Religious Freedom Report for 2013 in relation to China, Executive Summary and Section II, ‘Legal/Policy Framework’; see also DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015, paragraphs 2.8-2.11.

18. While unregistered churches are formally illegal,[6] registered churches are legal, and organisations which the government has declared ‘evil cults’ are banned, most Protestant churches exist in a ‘grey’ area where they are not legal, but neither are they interfered with by the government.[7] Unlike groups designated as ‘evil cults’ are subject to suppression, unregistered Protestant churches are generally left alone.[8] 

    [6] Schak, David 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2, p.76 < CIS26836

    [7] Yang, F. 2006, ‘The Red, Black and Gray Markets of Religion in China’, The Sociological Quarterly, Vol. 47, 2007, pp. 92-122, CISBE8E6BE682; Fulton, Brent 2010, ‘Policy, Implementation, and Shifting Official Perceptions of the Church in China’, ChinaSource, 6 January < CISDCDCAAB1717

    [8] Schak, David 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2, pp.84-85 < CIS26836

19. The US Department of State has reported that the SARA has posted a policy on its website acknowledging ‘family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government’.[9]  Some house church members have been reported as saying that ‘they have more freedom than in the past to conduct religious services, as long as they gather only in private’.[10]  The authorities do however ‘still regularly harass and detain small groups […] that meet for religious purposes in homes and other locations’.[11]

    [9] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 5, paragraph  2 < OG54B544637

    [10] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 5, paragraph  2 < OG54B544637

    [11] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 5, paragraph  2 < OG54B544637

20. Congregations became very adept at working within the regulations, such as by ensuring gatherings were of fewer than 25 people, and holding events that involved the whole congregation at karaoke halls or hotels.[12]  Wielander found that it is no longer the case that churches which are unregistered are assumed to be illegal and notes that ‘all sources agree that the situation is greatly improved’ and that ‘most congregations are no longer bothered by the authorities as far as their worship activities are concerned’.[13] 

    [12] 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

    [13] Wielander, G 2013, Chapter 1 An introduction to Chinese Christianity today: key questions and issues’ in Christian Values in Communist China, p.18, ebook, CISNET CIS28659

21. A ‘small group’ (xiaozu), usually no more than a dozen people who meet to study the Bible or discuss particular social or psychological matters, is often where Chinese people gain their introduction to Christianity.[14]  Small groups are different to a congregation (juhui) or a church (jiaohui) however small groups also often meet in people’s homes, and often do so in accordance with the regulation which applies to all social groups, that gatherings be restricted to fewer than 25 people.[15] 

    [14] Wielander, G 2013, Christian Values in Communist China, Contemporary China Series, Routledge, Chapter 8 ‘Christian Values in Communist China: A conclusion’, p. 161, paragraph 1  < CIS28659    

    [15] Wielander, G 2013, Christian Values in Communist China, Contemporary China Series, Routledge, Chapter 8 ‘Christian Values in Communist China: A conclusion’, p. 161, paragraph 3  < CIS28659  

22. The Tribunal has considered information contained in the Department of Foreign Affairs and Trade (DFAT) Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China,[16] which, at paragraph 2.11 provides the following general assessment:

    Broadly speaking, DFAT assesses religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government. Religious adherents are therefore subject to a range of restrictions that vary in extent and intensity according to local conditions. Given this, it is difficult to generalise about religious practice in China but basic assumptions can be made according to whether people exercise their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not religious expression is perceived by the government to be closely tied to broader ethnic, political or security policies.

    [16] Department of Foreign Affairs and Trade (DFAT) Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015

23. With regard to proselytising, the DFAT report states that it is permitted in registered places of worship and in private settings but not in public or by foreigners.[17] 

    [17] Department of Foreign Affairs and Trade (DFAT) Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 paragraph 2.9

24. On Protestants Christians, the DFAT Report states:

    3.6 The Three-Self Patriotic Movement (TSPM) was established in 1949 to oversee China’s “post-denominational” (i.e. non-denominational) Protestant church. The “Three-Self” is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation. There are approximately 60,000 registered Protestant churches under the supervision of the China Christian Council (CCC) and the Three Self Patriotic Movement, as well as several hundred thousand affiliated meeting points. Approximately 200 pastors graduate every year from China’s one seminary and 20 Bible schools run by the CCC. Qualifications from foreign seminaries are not officially recognised in China.

    3.7 Unregistered Protestant churches tend to have more theological freedom than state-sanctioned churches but risk adverse treatment by authorities due to their unregistered status. As members of “illegal” organisations, unregistered Protestant church members can experience harassment, raids and destruction of church property, pressure to join or report to the government-sanctioned religious organisations, and occasional violence and criminal sanction, particularly in response to land disputes with local authorities. For example, authorities have been known to apply indirect pressure on house churches by cutting off electricity or forcing landlords to evict house church members.

    3.8 In 2013, the Zhejiang provincial government launched a “three rectifications and one demolition” campaign. According to the provincial government’s website, the campaign was launched to improve cities’ landscapes and urban planning, as well as “push economic development”. The three-year campaign requires old residential areas, old factories and “urban villages” to be renovated and for illegal structures to be demolished. As of September 2014, more than 300 church crosses had been removed under the policy, many of them state-sanctioned churches. Some media reports have speculated that the policy is an attempt to limit the influence of the Christian church. In response to criticisms about the campaign, the government has stated that the campaign had been implemented “with fairness and justice. … No matter what background [the building has], we tear down what should be torn down, with no exceptions and no sparing of feelings”. The Zhejiang chapters of the Three-Self movement and the Christian Council have also urged believers to “obey the government …in order to establish a good image for Protestantism”.

    3.9 Some members of house churches are able to move freely between registered and unregistered churches, for example, they may be permitted to use registered facilities as a place to hold weddings or to purchase bibles. However, this arrangement does not apply to all unregistered church goers, some of whom report difficulties in hiring hotel or restaurant venues for weddings because of their association with illegal (unregistered) church organisations. Registered churches are able to organise their own activities as long as they accord with government regulations.

    3.10 DFAT is aware of a number of police raids imposed on at least eight unregistered Protestant churches in Guangzhou in September 2014. In 2013 unregistered churches in Shandong, Inner Mongolia and Xinjiang were forcibly closed after they refused to register with the state-sanctioned Three-Self Patriotic Movement (TSPM).

    3.11 One of the largest house churches in Beijing, the Shouwang Church, has repeatedly resisted attempts by the government to register with the TSPM (the congregation numbers in the thousands). Members collected US$6 million in donations to purchase a place of worship but the sale was cancelled following pressure by the authorities. An attempt to rent a large conference room was also cancelled some months after the initial proposal had been agreed. Members eventually started to hold outdoor worship services.

1. The 2015 report by the United States Commission on International Religious Freedom (USCIRF) noted that conditions for both registered and unregistered churches across China ‘vary widely and are often subject to the inconsistent discretion of local and/or provincial officials’:

   Leaders and members of both registered and unregistered churches have faced increased harassment and arbitrary arrests. Typically leaders of house churches are more vulnerable to these types of charges, but in 2014 pastors of sanctioned churches also faced detention or arrest. The Chinese government generally claimed these actions were to maintain social order, but there were multiple reports that Christians and religious activists were unfairly targeted. In July 2014, Pastor Zhang Shaojie of the Nanle County Christian Church, a registered church in Henan Province, was convicted on trumped-up charges and sentenced to 12 years in prison. The government also began classifying house church leaders as alleged “cult” leaders.[18]

   [18] United States Commission on International Religious Freedom (USCIRF) 2015, USCIRF 2015 Annual Report – China, 30 April, p.35, paragraph 2 <​ CISEC96CF1685

2. 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’.[19]  The CECC report went on to state:

   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.[20]

   [19] Congressional-Executive Commission on China (CECC) 2014, Congressional-Executive Commission on China Annual Report 2014, 9 October, ‘Protestantism’, pp. 95-6 < CIS2F827D92282

   [20] Congressional-Executive Commission on China (CECC) 2014, Congressional-Executive Commission on China Annual Report 2014, 9 October, ‘Protestantism’, p. 96 6 < CIS2F827D92282

3. 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’.[21]   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.[22]

   [21] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.9, paragraph 2  <​ > CISEC96CF1731

   [22] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.2, paragraph 3  <​ > CISEC96CF1731

4. 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).[23]

   [23] 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

5. According to Brent Fulton, the editor of the ChinaSource website[24], 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. [25]  Schak concluded that perceived threat, size, visibility and local government attitudes as factors which could lead to interference in a church’s activities.

   [24] 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

   [25] Schak, D 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2, p.92 < CIS26836

6. A recent report addressing the situation in China has been released by Christian Science Monitor.[26]  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.[27]

   [26]

7. 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. [28]

   [28] CXBD6A0DE2876: "China ‘ends’ anti-church demolition  campaign’ 21 January 2015; see also of Christians in Fujian Province

8. Fujian is a province on the south-eastern coast of China, and the county of Fuqing City[29], which is part of the prefectural city of Fuzhou is in the north of the province. Although both the province and the county contain relatively large numbers of Protestants, there are few reports of repression of house-church Christians in the province and the county. In the 2006 edition of China’s Christians Millions Lambert also describes religious policy in Fujian as ‘relatively liberal’ however, he also notes the occurrence of ‘occasional crackdowns on house churches’.  According to Lambert,

   Fujian has a thriving and rapidly growing Christian community…. Fuzhou, the capital, with its six surrounding rural counties and two smaller municipalities had at least 350,000 Protestants in 2002, meeting in 300 registered churches and 2,000 meeting points. In 2004 Fuqing City had 350,000 believers meeting in 520 churches, according to a Hong Kong Pastor…..

   In general, the official religious policy has been applied relatively liberally in Fujian, although there have been occasional crackdowns on house churches and ‘underground’ Catholics. [30]

   [29] Fuqing is a ‘county-level’ city and is largely agricultural with over 90% of its one million population living in rural areas. It has a long history of legal and illegal emigration abroad.

   [30] Lambert, T. 2006, China’s Christian Millions, Monarch Books, Oxford, pp.240-1, CISBE8E6BE680

9. A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries[31]  newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that ‘[i]n general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house-church Christians in this province’. It should be noted that one of the sources for this report is the TSPM/CCC.[32]

   [31] Global Chinese Ministries is described on the website of the Overseas Fellowship Mission (OMF) as: “Written by China expert Tony Lambert, this monthly newsletter shares current events, milestones and testimonies from around China to help you pray for Chinese people all over the world.” Source:

   [32] Global Chinese Ministries 2009, ‘The Protestant Church in Fujian Province’, OMF (Overseas Missionary Fellowship) International website, April  < CISE1310071628.  The information is said to be taken from information has been taken from November 2008 Tianfeng and History of Christian Missions in China by K.S. Latourette. Tianfeng is a Protestant magazine published by the TSPM/CCC and can therefore not be taken to be unbiased in relation to house churches.

10. Fujian is rarely mentioned in reports on breaches of religious freedom by the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch or the various Christian NGOs that report on China.

11. In its Annual Report published in April 2015, China Aid includes a diagram of the total number of people detained by province, however Fujian province is not included in the diagram.[33]

    [33] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.13, Table 4 <​ > CISEC96CF1731

    FINDINGS AND REASONS

12. A summary of the relevant law is set out at Attachment 1. 

    Nationality

13. On the basis of her evidence to the Tribunal, and her Chinese passport, and the absence of any other information to cast doubt about the validity of her documentation, the Tribunal accepts the applicant is a national of China and considers China is the receiving country for the purpose of assessing her claims against the complementary protection criteria.

    Consideration of applicant’s claims

14. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 

15. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

16. The applicant claims to fear significant harm in China for practising her religious beliefs as a Christian.  She claims that she is from a Christian family and practised her faith in informal church gatherings in China prior to her departure in 2008. She claims her father was detained for 3 years for reasons of his religious beliefs when she was a young child and in 2007 she was taken by police from her church gathering and held overnight and warned not to continue to attend such gatherings.  She claims she continues to practice her Christian faith in Australia and has been attending a church here in [Suburb 2 and Suburb 1] since her arrival.  She claims her neighbours and villagers in China blocked her access to her church from her house and illegally occupied her land.  She claims since coming to Australia her husband has been forced to sell the house and she has nowhere to live if returned.  She claims she was intimidated by neighbours in the past and had access to her property and church blocked by them and they have subsequently forced the sale of her house.  She fears harm upon return on the basis that she will pursue her rights in respect of their illegal appropriation of her land. She fears harm if she returns to China and practices her religion and spreads the Gospel which she considers is her duty.  She claims she won’t be able to survive if she returns to China because she has limited education and cannot generate enough income for food and accommodation by moving elsewhere in China.

    Claims relating to practice of Christianity in China

17. The Tribunal notes that the applicant did not mention in the present application her past experiences in China and claims of past harm suffered on the basis of her religious beliefs.  Notwithstanding this, the Tribunal has before it her previous application for protection and has considered the information contained in that application and explored with her at the hearing her background in China. 

18. The applicant recounted that she came from a Christian family in China and had been attending house church gatherings from a young age.  She described the nature of these gatherings as follows: they were held in their house, or other people’s homes; in groups of 10-20 people; involved singing of hymns followed by Bible readings; and they only ever prayed inside, never publicly.  She referred to her father having been taken away and detained when she was a very young child.   After she married, she continued to attend house church gatherings, but encountered some disapproval from her husband’s family as they were Christians and for the sake of her children she ceased her religious practice for a period.  Around 1998, her husband became Christian and they began gathering in the home of villagers.  She referred to a cross being erected on the home of this villager, which caused offence to the neighbour and he reported them to the police for gathering illegally. The applicant described an incident that took place in 2007 when the police came to the home where they were gathering and took the applicant away for questioning.  She said only she was taken that day as she was standing out the front leading hymns. She said they told her it was an illegal gathering, kept her overnight and warned her not to do it again.

19. The applicant told the Tribunal that apart from the 2007 incident and her father’s arrest and detention for 3 years when she was young, she experienced no other incidents on the basis of her religious practice in China. 

20. In considering the applicant’s present claim to fear harm on the basis of her religious practice if returned to China, the Tribunal has considered the claims and evidence before it regarding the applicant’s Christianity in China and past harm, including the claims and evidence provided in her previous application and makes the following findings.

21. Having regard to all the evidence, including information and evidence provided in her previous application the Tribunal accepts the applicant is from a Christian family and practised her faith in China in an informal house gathering setting.  It makes this finding on the basis of the consistent evidence relating to her past history and practice of her religion in China, the knowledge of Christianity displayed in the present and previous protection application process, and the witness evidence provided to the (differently constituted) Tribunal in the review of that application, together with the present Tribunal’s own consideration of independent information (referred to above) about the size and history of Christian population in China, and Fujian province in particular.

22. It is prepared to accept as possible and plausible that her father was detained for his religious beliefs many years ago, though she did not provide any additional evidence about this incident in the present application other than to make a reference to it in her explanation for her fear of future harm.  The Tribunal observes that this incident took place many decades ago, and it acknowledges independent information that suggests the government’s attitude to Christianity and religious practice generally has altered significantly over the years.

23. However, the Tribunal does not accept the applicant herself experienced past harm because of her religious practice in China.  Specifically it does not accept that she was taken away by police in 2007 as she claimed.  Her evidence about this incident has not been consistent in this and her previous application.  In her written statement of claims lodged with her first protection visa application she said that her bibles were confiscated when the police searched the meeting venue and her psalm book which had her name was found and that was why she was questioned by police. She specifically stated that they were not detained, though they were warned not to carry out any more religious meetings. In her oral evidence to the (differently constituted) Tribunal in relation to that application, she said when the police came they handcuffed her and took her to [a] police station at around 7.30pm and released her the next morning. She also said that another person was taken with her as a witness and that there were about 30 people present at the meeting that night.  Before the present Tribunal the applicant said she was taken away from the gathering when police came because she was the only one standing as she was leading hymns.  She said she was the only one taken that day.  She said they took her around 10pm at night and kept her there until the next morning. When asked if the police did, or took, anything else during this incident, she specifically stated they did not as there were only desks and chairs to take.   

1. When this inconsistent evidence was put to the applicant in writing for comment, she responded by explaining that she may not have understood the difference between the word ‘detained’ and ‘taken’  on account of her low level of education, and that she is certain she was taken to the police station for questioning that day.  She confirmed that the gathering commenced at 7.30pm that night and she was taken for questioning by police at 10pm that night.  She attributed any other differences in her accounts to misinterpretations or misunderstandings by the interpreter.  The applicant provided no other explanation for the differences in her oral and written evidence about this incident in her two protection applications.

2. The Tribunal has considered the evidence before it and the applicant’s explanation for the inconsistencies identified. It is not satisfied that the applicant has adequately explained the substantial differences in her accounts of this incident.  Given that it is the only personal experience of being questioned by police for her participation in a religious gathering, the Tribunal would reasonably expect it to be significant to her if it did in fact take place and that she would be able to recall important details. Even if it were to accept the semantic misunderstanding between the use of the term ‘detain’ and ‘taken’, she has not explained why the accounts of how and why she was singled out for questioning are different, what was taken by the police, how many people were at the gathering, and why she previously said a witness was taken with her, whereas she told the Tribunal she was taken alone.  On the basis of these inconsistencies, and the inadequate explanation by the applicant for the differences, the Tribunal does not accept the applicant is telling the truth about this incident. The Tribunal does not accept the applicant was taken for questioning by police in 2007 from her place of religious gathering, held overnight as claimed and warned not to attend church gatherings. The Tribunal also does not accept that her neighbours reported them to the police on this or any other occasion.

3. Having rejected the applicant’s claim that she was questioned by police in 2007, the Tribunal also does not accept the police came again for her after that.  She told the Tribunal that they came one day when she was not home.  She did not say why they came.  She did not indicate that they had any further interest in her.  Given its rejection of her claim about the 2007 incident, the Tribunal also does not accept the police had any interest in the applicant and came for her at this or at any time.

4. The Tribunal also rejects the applicant’s claim that she paid money to obtain her passport and was not able to get it herself because ‘all eyes were on her’. She told the Tribunal her passport was given to her at the airport just before she boarded the plane. She maintained that she did not know how her son obtained his passport, even though it was issued the same day. However, in her application form she indicated that she had no difficulties obtaining her travel document in China.  In her previous application, she told the Tribunal and the Department that she went to Fuzhou and obtained the passport herself. The Tribunal finds her evidence about how she obtained her passport is internally inconsistent and contradictory, as well as inconsistent with evidence she gave about this in her previous application. It also considers her claim that she had no knowledge of how her, then [age] year old, son obtained his passport which was issued the same day as hers, to be implausible.  The Tribunal does not accept that the applicant paid money to obtain her passport because she was being watched by authorities.  It does not accept she had any difficulty obtaining her passport. 

5. In her interview with the delegate the applicant claimed the church is not gathering now because the harassment starts every time there is a meeting, the police are called and the gathering is declared illegal.  She provided no other evidence on which this assertion is based.  Given its rejection of the claim relating to the 2007 incident, and finding above that the police did not have any interest in her at any time, the Tribunal also does not accept the applicant’s claim that police have been called to her church every time there is a meeting.

   Claims relating to display of cross on her house church and blocking access to the road

6. The applicant claimed a cross was erected on the house that her church group gathered at which caused offence to her neighbours and led them to report them to police. She claimed that the neighbours also harassed and obstructed her access to church by blocking the road that was constructed by the community.  She claimed to fear that neighbours and villagers would report her to the authorities for participating in illegal gatherings if she continued to practice her faith. Her evidence to the Tribunal was that the cross remains on the house to this day and has not been taken down.

7. The Tribunal has already rejected the applicant’s claim that the police were called to their gathering place in 2007 and she was taken away for questioning.  It put to the applicant that she had not mentioned the erection of the cross or the blocking of the road and obstruction of her access to church in her first application and this may suggest to it that she fabricated these claims in this application. In her written response the applicant stated that the cross erection and road blocking and access issues were neighbour disputes that she did not consider persecutory actions by the government and that is why she did not mention them in her first application. She also maintained that she was not asked about these matters by the delegate or Tribunal and so information about them did not come out in that application.  She confirmed that the cross has never been taken down.  

8. The Tribunal has considered the applicant’s explanation for why she did not mention the cross on the church or the road access issue in her earlier application.  It considers her explanation that she didn’t mention these matters because she was not asked about them by the Tribunal or delegate to be unconvincing.  Given that her claims were based on religious persecution in the original application, the Tribunal considers the issues of the cross on her church and conflict with her neighbours over this and the road block, if they were true, would be significant matters that she would have mentioned.  In the present application she indicated that the cross was erected in 2006 and it was what triggered her neighbours to report their church gathering to the police.  While the Tribunal has already rejected her claim about the 2007 incident, the Tribunal observes that she also made this claim about the 2007 police incident in her earlier application.  If there was a cross on the church and this is what triggered the neighbours to report them to police, the Tribunal would have expected her to mention it in the earlier application.  Her failure to do so leads the Tribunal to find that she has fabricated this claim in the present application. The Tribunal would also expect her to have mentioned the actions of the neighbours to intimidate her and block the road for her to access the church in the earlier application and it doesn’t accept her explanation that she didn’t mention this because she considered it a neighbourly dispute rather than persecutory action by the government.  For these reasons, the Tribunal does not accept the applicant’s claims that a cross was erected on the house church or that her neighbours blocked access to the road.   

   Claim that her land was appropriated

9. In her written claims the applicant claimed the land on which the road was built from which she accessed her house church was hers and the demolition of the road amounted to an unlawful appropriation of her land. In her oral evidence to the Tribunal she said the neighbours have now forced her husband to sell the house and it has been demolished now and they do not own it anymore.  When asked to elaborate on this claim, the applicant said she has no other detail about it.  She only knows from her husband that he sold the house and was paid RMB 100,000 in compensation.  A new building has been constructed in its place.  Her [sibling] confirmed this to her.

10. During the hearing the Tribunal put to the applicant that it did not understand how her house being sold caused her fear of returning to China and asked her to explain this further.  She was unable to provide any further explanation or information. She has not claimed that her house was appropriated by actions of the government.  She reiterated her claim that she would be at risk of harm upon return because she would spread the gospel.

11. On the limited evidence before it, the Tribunal is prepared to accept that the applicant’s husband sold the family home and it has now been demolished and that her husband received RMB 100,000 in return for it.  She claimed that if she went back to China she would fight to get her house and land back.  When the Tribunal tried to explore this claim with her more at the hearing, she was unable to provide any more detail about how and to whom the house was sold and whether or how she would be able to fight to get it back. She told the Tribunal her current poor health means she cannot do anything to support her family.  The Tribunal finds her claim that she will fight to get her house and land back is vague and lacking in detail. If she was genuinely intending to pursue this matter it would expect her to have more information about how the house was sold and what recourse she may have.  She indicated in her evidence to the Tribunal that her husband has done nothing about it to date.  Given this and the lack of any other detail, the Tribunal does not accept that the applicant will take any action to get her house or land back or that she has any recourse to do so. 

    Claims of practice of Christianity in Australia

12. The applicant claimed that she has been attending church in Australia since soon after her arrival in 2008.  She described the place she attends, previously in [Suburb 2] and now in [Suburb 1], the order of the service and provided the names of the persons who given sermons.  In her previous application, the (differently constituted) Tribunal heard from a witness who was a Pastor in the [name] Church and confirmed the applicant’s regular weekly church attendance from around the middle of January 2008 to the time of the hearing (November 2009) and attested to her genuine commitment and knowledge of Christianity.  In the present application, the Tribunal the applicant has not provided any supporting evidence of her continued and committed practice of Christianity in the 4 years since previous evidence was given about this matter.  When asked why she did not bring anyone from her church to give evidence in support of her application this time, the applicant said they are all busy and she did not wish to trouble them.  When asked about other church activities she is involved in, the applicant said she used to attend other meetings during the week but due to her limited mobility and health issues she no longer does.  She also used to help the church with cleaning and distributing leaflets but does not now because of her injuries.  When asked if she goes out to ‘spread the word’ she said she has done so in the past.  She described talking to people when working [three] years ago, and talking to people on trains about her belief in God.

13. The Tribunal has considered the applicant’s evidence of her current religious practice, limited in this application to her assertions and oral evidence. It has also taken into consideration the evidence provided in her previous application. Having considered all of this evidence, and taking into account its finding about her history and background as a Christian in China, the Tribunal is prepared to accept that the applicant continues to be a Christian in Australia and has been attending church services here.  However, on her own evidence, it finds her religious practice these days involves only attending weekly services because of limitations due to her health and mobility. 

    Fear of future harm on the basis of religious activities, or for any other reason

14. The applicant claims having seen in Australia what religious freedom is, she wants that if she returned to China.  She claims she will spread the gospels if she returns to China because she is not attached to anything else in this world.  She is fearful of being arrested by police and detained as happened to her father in the past.  Having accepted that the applicant comes from a Christian family in China and that she has continued to practise Christianity in Australia, the Tribunal accepts that she will seek to practice her faith as a Christian in China. 

15. As to whether she would participate in activities, such as evangelising, in the practice of her religion, the Tribunal notes that, although the applicant has asserted that she would, her evidence to the Tribunal indicates she has hardly engaged in such activities in Australia despite having the freedom to do so over the last 7 years. It has considered her evidence that she ‘spread the word’ while at work [three] years ago, and that if on a train she may, if she met someone who spoke her language, share with them her belief in God.  However, on this limited evidence, the Tribunal does not accept that evangelising has been an essential part of the applicant’s religious practice in Australia.  On her own evidence, she never practised her religion publicly in China, only indoors.  Therefore, on the evidence before it, the Tribunal does not accept that the applicant will evangelise as part of the practice of her Christian faith in China.

16. The issue for consideration is whether there are substantial grounds for believing there is a real risk the applicant will face significant harm in the foreseeable future in China because of her religious commitment and practice or for any other reason.

100.   Tribunal has accepted above that the applicant is from a Christian family in China and practised her faith there in an informal house gathering setting.  It has given careful consideration to the independent information above about Christians in China and treatment of Christians in Fujian province in particular.  DFAT’s broad assessment is that religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government.  Other independent information also refers to the State Administration on Religious Affairs (SARA) being increasingly open to family and friends meeting at home for worship ( for example, US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July).  

101.   While the Tribunal acknowledges reports, such as the 2015 United States Commission on International Religious Freedom (USCIRF) that refer to increased harassment and arbitrary arrests in recent years of leaders and members of both registered and unregistered churches it considers this information within the overall context of the numbers of churches and practising Christians in China.  The Tribunal has also considered analysis provided by commentators who have identified 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; the size and scope of the unofficial group (it is generally considered safe to have unofficial “house” meetings of 30-40 people; and the degree of corruption and greed among local officials. 

102.   In the applicant’s case, the Tribunal has rejected the applicant’s claim regarding the existence of a cross on the house church she previously attended.  There is no other information before the Tribunal to indicate her religious practice upon return would be subject to adverse attention on the basis of any of the above mentioned factors.  The Tribunal has rejected the applicant’s claim regarding the incident in 2007, and therefore, it finds she was able to participate in a house church gathering without official interference for a number of years prior to coming to Australia.  She has not indicated any other incidents of harm or threats experienced by her husband or other family since she has been in Australia. 

103.   Having carefully considered all of the above, the Tribunal considers the weight of available independent country information does not support that there are substantial grounds for believing there is a real risk the applicant, taking into account her religious commitment and practice, will face significant harm in China for reasons of practising her religion. 

104.   The Tribunal has also considered whether the applicant will face future trouble or harm from her neighbours or villagers if she returned to her previous area. The Tribunal has rejected the applicant’s claims that her neighbours blocked her access to her house church and that they unlawfully appropriated her land or house.  It does not accept that she will take any action if she returns to China to get back her house and land. The Tribunal also does not accept that the neighbours will report her to police for her religious practice or that the neighbours will pursue or harass her if she lives elsewhere. The Tribunal is not satisfied  there are substantial grounds for believing there is a real risk the applicant will face significant harm in China  from her neighbours or local villagers for reasons of her religion or any other reason.

105.   The Tribunal has also considered the applicant’s claims that she will be unable to survive if returned to China because she cannot generate enough income to live on and has nowhere to live.  In respect of this claim the Tribunal observes that she has a husband and [child] in China and has referred to other relatives with whom they have been staying. Therefore it does not accept that she would be without any family support upon her return.   In any event,  the Tribunal finds that unemployment, financial hardship and inability to obtain adequate housing do not come within the meaning of significant harm as contemplated by that term in s36(2A).

106.   Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm because of her Christian beliefs, or for any other reason.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

107.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

108.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Meena Sripathy
Member

RELEVANT LAW

109. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

Complementary protection criterion

110.   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 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: s.36(2)(aa) (‘the complementary protection criterion’).

111.   ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

112.   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.

Section 499 Ministerial Direction

113.   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 of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.