1413191 (Refugee)

[2016] AATA 3875

1413191 (Refugee) [2016] AATA 3875 (13 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413191

COUNTRY OF REFERENCE:                  China

MEMBER:Paul Windsor

DATE:13 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 13 May 2016 at 5:14pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of the People’s Republic of China (China), applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] July 2014.

3. The applicants applied to the Tribunal for review of this decision on 30 July 2014.

4. The applicants appeared before the Tribunal on 13 October 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicants claim to be citizens of China.  According to the Protection visa application[1], the principal applicant (hereafter referred to as ‘the applicant’) was born on [date] in Fuqing City, Fujian province, China.  She states that she is of Han ethnicity and that her religion is Local family church (Christian), and that she speaks, reads and writes Chinese Mandarin.  She claims to be in a de facto relationship which commenced [in] February 2013.  Her partner is not included in the Protection visa application.  She departed China legally and arrived in Australia [in] February 2008, travelling on a Student visa.  The applicant’s daughter[2], born [on date] in Melbourne Australia, was included in the application on [that date] as a member of the family unit of the principal applicant, who does not have their own claims for protection.

    [1] See folios 14-29 of Departmental file [number].

    [2] See folios 70-73 of Departmental file [number].

    Summary of claims from the Protection visa application

11. The applicant’s claims from the Protection visa application[3] and from a Statutory Declaration of  [a date in] October 2013[4] can be summarised as follows:

    [3] See folios 19-23 of Departmental file [number].

    [4] See folios 48-51 of Departmental file [number].

    ·She came to Australia in 2008 to pursue her studies.  She was accompanied by her mother who was her Student guardian.  Her mother is currently unlawful in Australia and living in Sydney.  Her mother has lodged a separate Protection visa application. The applicant is living in Melbourne with her de facto partner.  Her father lives in China and she has [a sibling] living in [another country].

    ·Her whole family love Lord Jesus.  At their local family church they all believe in the concept of the second coming of Lord Jesus.  This puts them in conflict with the Communist party.  As a result, the local family church was defamed as a cult, anti-revolutionary organisation and its activities are banned in China.

    ·Both of her parents are dedicated Christians and both her mother and her father have been arrested and detained by Public Security Bureau officers for being involved with local family church activities in China.  She is concerned that this could also happen to her in the future if she had to return to China.

    ·Her mother was detained twice, first in [1998] when she was held for one day at the police station and released after the applicant’s father paid a fine of CNY [amount] to have her released. Her mother was arrested again, this time with her father, when they were gathering in the City of Fuqing [in] 2006.  Her father was released shortly after but her mother was sent to serve labour correction at [a Fujian location] because she confessed that she was the person in charge.  Due to a medical condition she was bailed out for medical treatment but was still requested to report to the police station each week.

    ·Her father remained in China and continued to practise at their local family church in Fuqing City.  In January 2013, while gathering at a church friend’s house in Fuqing City with seven other church members, PSB officials raided the gathering and her father was taken away and detained for [number] days.  He told the applicant he was abused, harassed, assaulted and threatened by the authorities.

    ·Her parents and other members of their local family church refuse to attend the Three-Self Patriotic Movement registered church gatherings in China as these fail to follow the truth of the Holy Bible and are governed by the Chinese Communist Party, whereas their church is governed by the Lord Jesus, consistent with the truth of the Bible.  The local family church is not recognised by the Chinese Government and members are not allowed to practise their religious beliefs at our local church.

    ·Ever since arriving in Australia, the applicant has regularly attended church gatherings in [three Melbourne suburbs].

    ·She is very concerned for her personal safety should she have to return to China.  As a devoted Christian who has practised at the local family church both in China and in Australia she could not live without gathering and without church life.  She wishes to be able to practise her religious beliefs without fear and concern.

    ·She did not lodge her Protection visa application earlier as she was told it had proved very difficult to for an application to be approved in the past.

12. The applicant provided a ‘Release Certificate’ from the [named] Public Security Bureau Detention Center dated [in] February 2013 which she claims indicates that her father was detained by the [named] Public Security Bureau from [a date in] January 2013 until [a date in] February 2013[5].

    [5] See folio 54 of Departmental file [number].

13. The applicant included a statement[6] with her review application indicating that the Chinese government recently reiterated that the local family church is a ‘sect’ and is among fourteen proclaimed ‘evil cults’ in China.

    [6] See folio 30 of Tribunal file 1413191.

    Evidence from the hearing of 13 October 2015

14. At the hearing of 13 October 2015 the applicant indicated that she ceased studying in July 2009 because her family no longer had the financial resources to support her studies.  She claimed this was because her father’s business failed.  She did not tell immigration because her father had a debt so she went to work.

15. The applicants stated that she left Sydney and came to Melbourne in March 2010 to be with her boyfriend.  She claims she met him at a family church gathering in Sydney.  He was not a member of the church but was visiting Sydney at the time and his friend took him to the gathering.  Her mother has remained in Sydney.  The applicant said that she does not know what her mother is doing and that they do not speak often.  She said she last spoke with her mother around six months ago.  When asked why they don’t speak often the applicant replied that her mother told her she has her own family and calls her less.  She said her mother has not visited Melbourne to see the applicant’s daughter.  The applicant said that her mother attends the local family church in [Suburb 1] in Sydney.  The Tribunal asked the applicant what the address is of the local family church in [Suburb 1].  She said that, while she had attended church gatherings there, she does not know the address as a ‘brother’ from the church always came to pick her up and drove her there.

16. The applicant said that for the last six years her father had been working as [an occupation] for government officials.  Before that he worked in a company that made [products].  The Tribunal queried the applicant regarding her earlier comment that her father’s business failed.  She said he never had his own company but he had a share in this company, she was not sure how big that share was, but the company failed due to the economic crisis.

17. When asked why she fears returning to China the applicant said that, as a sincere Christian, if she returns she will have to attend the church, but it is ‘severely banned’ in their area.  She is afraid she will be caught in a local family church gathering and will be harmed by the police and the government.

18. The applicant said she first went to local church gatherings when she was very little and that her mother took her almost every week.  She said these gatherings were held in the homes of church elders and involved 10-20 people.  She named three people at whose houses gatherings were mostly held.  She said that sometimes police would suddenly show up so they had to change location.  She was never arrested but police would check IDs (identity documents) and sometimes arrest sisters and brothers.  The Tribunal asked the applicant how many times the police came while she was at a gathering.  She replied that she didn’t see the police when she went to the church.  When queried regarding why this was the case if the church was ‘severely banned’ in her area and she was attending weekly for many years, she replied that because she was studying she went at a different time.  When asked to explain she replied that we have gatherings and prayer meetings and that it was ‘just a coincidence’.  She commented that because it was banned they could only meet at peoples’ homes and had to keep changing locations.  The Tribunal asked why the police sometimes just checked IDs if the church was severely banned.  She said that they didn’t bring bibles that could prove they were local church, they just communicated and prayed, so the authorities could not see that we were local church people.

19. The Tribunal asked the applicant to tell it about the local church: what they believe, how it differs from other churches, why they use a different Bible to other churches, what happens at services and gatherings, whether they have a pastor, whether they celebrate Christian festivals, whether they call to Jesus, whether they are encouraged to bring new members to the church, where gatherings and services are held in Melbourne, and how they support the church financially.  The Tribunal also asked the applicant about the terms ‘Lord’s Table’, Pray Reading’ and ‘Economy of God’.

20. The applicant indicated that her partner now attends church gatherings sometimes, once or twice a month.  He does not attend more frequently because he works as [an occupation].

21. The Tribunal asked the applicant to explain what had happened to her mother and father in China.   She said her mother was arrested at a church gathering in 1998.  Her father paid CNY [amount] to have her mother released.  The applicant said that as it was the first time she was arrested her mother was given a warning and released after paying a bond.  They borrowed the money from a relative.  While the police told her she must stop going to the local church she did not stop but continued to attend gatherings weekly.  When asked whether the authorities checked up on her mother, the applicant said that they didn’t find her.  The Tribunal asked the applicant if they had arrested a group of people and interrogated them, wouldn’t they know who was involved and what houses to check.  The applicant replied that is why we changed the locations and that sometimes the authorities went to locations but did not find anyone there.

22. The applicant said that in [2006] her mother was arrested again when a gathering of over ten people was raided.  The applicant was not there as she was at school.  Her mother said she was the organiser but she wasn’t.  The Tribunal asked the applicant why her mother would do this when she had already been detained and fined.  The applicant said it was so she could protect other brothers and sisters and that in 2006 their financial situation was pretty good and they could afford the bond.  The applicant does not know if other people were fined.  The applicant said that while the authorities planned to send her mother to the [location] in Fuzhou for a month for re-education, she was released after around one week because she was sick and needed medical treatment.

23. The applicant said her father was arrested in January 2013 when police came to a gathering at a brother’s home.  The applicant could not say whose home it was, how many people were there, whether uniformed police came to the home, or how many people were arrested as her father told her what happened long after he was released.  She said her father was held for [number] days at the [named] Police Station.  Over this time they asked him who else was in the church and who was the elder, and told him to stop attending gatherings.  He did not give them any information but promised not to go to further local church gatherings.  She said because he refused to answer they beat him up and he suffered bruises.  The applicant said 7-8 other people were held and while none said who the elders were they were released because they promised not to attend local church gatherings any more. 

24. The Tribunal asked the applicant why her father was not sent for re-education through Labour given he had been arrested previously in [2006]. She replied that she did not know. the applicant said that her father still attends local church gatherings regularly in brothers’ homes. She said he has not experienced further problems. The Tribunal asked the applicant if the authorities would be watching her father closely given he had been arrested twice, she commented that they were more cautious and chose somewhere more hidden to meet. When asked how they did this the applicant replied that they would choose someone off the main road and have fewer people, such as 7-8 people. The Tribunal commented that was how many people she said were arrested when her father was arrested in January 2013. The applicant replied that on that day it just happened to be 7-8 people but usually there were 10-20 people at a gathering. When the Tribunal queried that 20 people in a house is a lot, the applicant replied that while it would be over 10 it would not be as many as 20, as that is a big number and would be more dangerous.

25. The Tribunal asked the applicant when the local church was banned in China.  She replied that it was banned in the 1980s and that it banned because the PRC authorities think the local church is a cult because they believe in Jesus rather than communism, and also because when they call out to Jesus it is quite loud.  The applicant referred to the incident in May 2014 at a McDonald’s restaurant in Shandong where a person was beaten to death by members of the Church of Almighty God.  She commented that the government put out a list of banned cults and that the local church is first on that list, and therefore in the government’s eyes it is the most dangerous one.

26. The Tribunal discussed a range of country information with the applicant.  Firstly the Tribunal asked her to comment on information that suggests that it would be difficult for her mother to have got a passport and been able to leave China if she was on a watch-list as a consequence of having been detained twice and sent for re-education through labour.  The applicant responded that, while her mother was worried about her labour re-education history, they engaged an agent and got the visa.  The Tribunal again asked the applicant why they would have been allowed to exit China, given the family history of her mother being arrested twice and her father once, at that stage.  The applicant replied that she was studying and was not involved in the application procedure, so does not know exactly what they did.

27. The Tribunal also discussed with the applicant that, based on available country information that suggests that fraudulent documents are widely available in China, the Tribunal cannot be satisfied that the document she has provided regarding her father’s detention is genuine  The applicant commented that it was produced by the Public Security Bureau when her father was released and he posted it to her.

28. The Tribunal confirmed with the applicant that her father works for the government, and asked her if her father had been detained for [number] days might that have affected his employment.  She replied that he took leave.  The Tribunal asked if the authorities would have been concerned about having someone who was involved with a dangerous cult working for the government.  The applicant replied that her father had promised not to continue to attend local church gatherings and that his performance at work was pretty good so they were happy with him.  When they Tribunal asked the applicant if that meant they were not concerned about his activities the applicant responded that maybe they think it is easier to control him by keeping him employed.

29. The Tribunal discussed with the applicant country information that suggests that there is a thriving and rapidly growing Christian community in Fujian and that the authorities in Fujian take a relatively liberal approach to both regulated and unregulated churches, including the local church, in Fujian, and that some county level authorities have formally authorised local church congregations.  The applicant responded that legal churches are controlled by the communist party through the Three-Self Patriotic Movement and when they have a gathering they have to notify the government and report their activities.  She commented that her father tells her that when the local church members have a gathering they have to be cautious or the government will raid them.  She commented that if the local church is formally accepted, why is it still top of the list of banned cults.

1. The Tribunal asked the applicant why she delayed applying for protection until October 2013, a period of over year five and a half years after arriving in Australia in February 2008.  The applicant said that she first came to study and hoped to get a good education and qualification and then get a good job.  When her father’s business failed he had debt and she needed to work to pay that off, then she met her boyfriend and came to Melbourne.  Initially at local church gatherings she did not mention her situation but eventually a brother from the church in Melbourne told her about Protection visas and he got it and another brother was also successful.  She did not apply earlier because an agent in Sydney told her if you have not been harmed personally it is very hard to have an application approved. The applicant advised that she had received assistance from a brother at the church in preparing the statement she included with her application.

2. The applicant commented at the conclusion of the hearing that they go to local church gatherings all the time and if she returns to China she will need to go to gatherings.  The Chinese government has not accepted the local church as legal since the 1980s and while it is rarely in the news, a lot of brothers and sisters still get arrested.  She commented that the communist government is like a dictator and suppresses the news of persecution, but people who attend gatherings are still subjected to harm.

3. At the hearing the applicant also provided a letter dated [in] October 2015[7] from the [local church], signed by two persons and indicating that she ‘comes to our church Chinese speaking district meeting regularly since March 2010’.

   [7] See folios 43-44 of Tribunal file 1413191.

   Findings and reasons

4. The issues in this review are whether there is a real chance that, if the applicant returns to China, she will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of Migration Act.

   Delegate’s decision

5. According to the decision record of the delegate of the Minister for Immigration and Border Protection, provided to the tribunal by the applicant, the delegate accepted that the applicant is a citizen of China.  She accepted that the applicant is a practising Christian and was a practising Christian prior to coming to Australia.  However, the delegate did not accept that the applicant’s father and mother had ever been mistreated or come to the adverse attention of Chinese authorities for any reason related to religion.  The delegate was not satisfied that the applicant faces a real chance of serious harm for reason of religion on return to Fujian China.   The delegate also did not accept that the applicant faces a real risk of being subject to significant harm should she be removed from Australia to China.

   Applicants’ identities

6. On the basis of the copy of the applicant’s Chinese passport[8], and the birth certificate[9] for her daughter, provided by the applicant to the department, the Tribunal finds that the applicants are citizens of China and that their identities are as they claim them to be.  The Tribunal accepts that China is the applicants’ country of nationality for convention purposes and is the applicants’ ‘receiving country’ for complementary protection purposes.

   Credibility

   [8] See folios 52-53 of Departmental file [number].

   [9] See folio 69 of Departmental file [number].

7. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

8. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

9. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

10. The Tribunal must bear in mind 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 (1999) 93 FCR 220).

11. 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 Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

12. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

    Claim to be a Local Church member

13. Based on her responses to the Tribunal’s questions at the hearing, and noting the advice provided from Local Church elders in Melbourne indicating that applicant has come to the church Chinese speaking district meeting regularly since March 2010, the Tribunal is satisfied that the applicant attends Local Church gatherings in Melbourne.  At the hearing she demonstrated a reasonable knowledge and understanding of Local Church activities, practices and beliefs.

14. The Tribunal found the applicant’s comments regarding having attended the Local Church in Sydney to be less convincing, noting that while she was readily able to name the precise address of various Local Church meeting points in Melbourne, she could not provide the address of the Local Church meeting point in [Suburb 1 in] Sydney, which she claims to have attended regularly from the time she arrived in Australia in 2008 until she moved to Melbourne in March 2010.  In her statement of claims she commented that ever since arriving in Australia she had regularly attended church gatherings in [three Melbourne suburbs], but did not mention [Suburb 1] in Sydney.  The applicant indicated, however, that she had been baptised in China when she was twelve years old, at a ‘brothers’ house, and had not been baptised in Australia.  On balance the Tribunal, like the delegate, accepts that the applicant was a practising Christian prior to coming to Australia.

15. The Tribunal found the applicant’s evidence in relation to her mother to be vague and evasive. The applicant’s mother travelled to Australia with the applicant in February 2008 as her Student guardian.  At the hearing the applicant claimed that she first started going to Local Church gatherings when she was very little and that her mother took her almost every week.  She commented in her statement of claims that both of her parents are dedicated Christians and that her whole family love Lord Jesus.  However, when asked what her mother is doing now, the applicant indicated that her mother has remained in Sydney where she attends the Local Church in [Suburb 1], but said that she does not know what her mother is doing now, other than that her mother’s visa expired, she is seeking to stay in Australia, her visa was refused and she is now seeking review.  The applicant said that she and her mother do not speak often.  She indicated that her mother had never come to Melbourne to see the applicant’s child, who was born in [year], nearly [time] before the date of the hearing.  When the Tribunal asked why she communicates so infrequently with her mother, the applicant responded that her mother told her that she has her own family now and calls her less.  The Tribunal finds this behaviour to be inconsistent with the applicant’s claims that her parents are dedicated Christians and that she attended church regularly with her mother when she was a child.  The Tribunal considers that the applicant was not being entirely truthful about her mother’s circumstances and her relationship with her mother.

    Claim to be at risk of persecution as a consequence of Local Church activities

16. The applicant claims to fear persecution in China as a consequence of her Local Church activities which she states are ‘severely banned’ in her area.  She claims that both her parents were detained on two occasions in China due to their Local Church activities.  As discussed below, the Tribunal has significant doubts regarding the credibility of the applicant’s claims that her parents have been detained in China due to Local Church activities.

17. The applicant claims that her mother was first detained in 1998, but released after one day on payment of a bond on CNY [amount]. The applicant then claims that both her parents were detained in [2006] and while her father was released shortly after being detained, her mother was sent for labour correction because she confessed to being the person in charge of organising the Local Church gathering which was raided.  The applicant commented that while her mother was released early due to a medical condition, she still had to report regularly to police.

18. The Tribunal finds these claims to be implausible for a number of reasons.  Firstly, the Tribunal does not accept that the applicant’s mother would have said she was the organiser when she wasn’t, particularly if she had already been detained and fined for Local Church activities.  When this was discussed with the applicant, she commented that her mother did this to protect the other brothers and sisters and that in 2006 her family’s financial situation was pretty good and they could afford to pay the bond.  The applicant was not able to say if the other people detained were fined.  The Tribunal considers that this response does not address the point that the applicant’s mother could have expected (and allegedly did receive) a harsher punishment for being detained a second time and being an organiser.  It is also implausible that the applicant would not know if the others persons detained were fined when her father was one of the other people detained at the gathering.

19. The applicant said that after the first time her mother was detained the police told her mother she must stop attending Local Church gatherings but her mother continued to attend gatherings.  When asked if the authorities checked up on her mother the applicant commented that they didn’t find her.  The Tribunal questioned the applicant regarding whether, if the authorities detained and interrogated people, they might know who was involved with the Local Church and what houses to check.  The applicant replied that the Local Church members changed locations and sometimes the authorities went to locations but did not find anyone.  However, when asked previously where gatherings were held, the applicant said that they were held in the homes of particular elders, and named three people at whose houses gatherings were mostly held.  The applicant also indicated that while she went to Local Church gatherings regularly, she was never at a gathering where police attended, even though sometimes police attended gatherings and arrested people, or on other occasions came but just inspected the IDs of the people present (because the people had not brought their bibles so the police could not prove they were Local Church worshippers).   Given country advice regarding the surveillance capacity of the Chinese state (that security personnel and surveillance technology are ubiquitous throughout China)[10], and the applicant’s comments about the activities of the Local Church members in her area (that they mainly gathered in the houses of three specific people), the Tribunal does not accept as plausible the applicant’s account of how practitioners avoided detection and detention.  This is particularly the case given the applicant’s claim that the Local Church was ‘severely banned’ in her area, which implies that the authorities would be actively engaged in stamping it out.

    [10] DFAT Country Report, People’s Republic of China, 3 March 2015.

20. The Tribunal also asked the applicant to comment on country advice that suggests that people of interest to the PRC authorities would find it difficult to obtain passports to depart China[11], noting that she claimed that her mother had been detained twice and sent to labour re-education for being a member of a ‘severely banned’ sect, and that her father had been detained once for the same reason, before the time she and her mother departed for Australia in February 2008.  The applicant responded that, while her mother was worried about the possible consequences of her labour re-education history, they engaged an agent and got the visa.  This comment related to arranging an Australian Student visa and when the Tribunal again asked the applicant about being able to exit China, the applicant commented that she was studying at the time and did not get involved in the application process and did not know exactly what they did. 

    [11] CX189035:”RRT Information Request CHN32528 – Passport issue, Australia: Department of Foreign Affairs and Trade (DFAT), 29 November 2007.

21. The Tribunal also discussed with the applicant that country information which suggests that there is a liberal approach to Christian activities, both registered and unregistered, in Fujian province.  In this regard, in the 2006 edition of China’s Christian Millions, Lambert describes religious policy in Fujian as, in general, having been applied relatively liberally, while noting the occurrence of ‘occasional crackdowns on house churches’.[12]  Lambert’s characterisation of Fujian as a relatively liberal province in relation to religious policy was supported by a Canadian government fact-finding mission to the province in 2000[13] and the executive secretary of the Hong Kong Christian Council in 2005.[14]  A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries[15]  newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that ‘in 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’.  In 2004, Kindopp commented that some county level authorities had formally authorised Local Church congregations which now operated legally in some areas, including Fuzhou and several rural counties in Fujian Province[16].  The applicant responded that legal churches are controlled by the communist party through the Three-Self Patriotic Movement and when they have a gathering they have to notify the government and report their activities.  She commented that her father tells her that when the local church members have a gathering they have to be cautious or the government will raid them.  She also commented that that if the local church is formally accepted it would not be top of the list of banned cults.

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

    [13] Immigration and Refugee Board of Canada 2000, CHN34099.E ‘China: Report of a fact finding mission to Fuzhou by political counsellor, Canadian Embassy, Beijing’, 23 March < OGA7924783

    [14] In comments to the Immigration and Refugee Board of Canada (Immigration and Refugee Board of Canada 2005, CHN100387.E – China: Situation of Protestants and treatment by authorities, particularly in Fujian and Guangdong (2001-2005), 1 September < > OG8866BA47)

    [15] 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:

    [16] Kindopp, J. 2004, The Politics of Protestantism in Contemporary China: State Control, Civil Society, and Social Movements in a Single Party State, 16 May, p 463.

22. Consistent with the advice regarding a more liberal approach in Fujian, and contrary to the applicant’s claim that her mother was arrested, detained and sent to re-education in 2006, China Aid’s Annual Report of Chinese Government Persecution of Chinese House Churches by Province for 2006[17], which contains tables setting out incidents of claimed persecution of Christians in China, indicates that 651 persons were arrested across China over 2006. These incidents are tabulated by region and municipality.  While the report indicates that there was one incident in Fujian in 2006 where a ‘house church’ was demolished, it does not indicate any arrests, detentions or imprisonments in Fujian over the 2006 reporting period.  It is noteworthy that this report comments on a ‘new development’ in 2006 being the ‘banning of house churches as cults’ and that the ‘repression of unregistered Protestants for involvement in cults became more prominent in mid-2006’, but does not include any examples from Fujian province among the cases cited.

    [17] China Aid, Annual Report of Persecution by the Government on Christian House Churches within Mainland China, January 2006 to December 2006, China Aid Association, January 2007.

23. Taking these considerations into account cumulatively, the Tribunal does not accept that the applicant’s mother was detained due to local church activities in 2006.  For this reason and considering the further analysis below regarding the claimed detention of her father, the Tribunal finds that the applicant is not a credible witness and therefore also does not accept her claim that her mother was detained for one day in 1998 for attending a local church gathering.

24. The Tribunal finds the applicant’s claim that her father was detained for [number] days in January 2013 is inconsistent with the country information cited above regarding the government’s more liberal and tolerant approach to unregistered churches in Fujian Province.  Furthermore, China Aid’s 2013 Annual Report on Chinese Government Persecution of Christians and Churches in Mainland China for the period January-December 2013[18] indicates that, while there were 7,424 cases of religious persecution reported and 1,470 persons were reported as being arrested across China in 2013, there were no reported cases in Fujian province over the 2013 reporting period.

    [18] China Aid Association, USA, February 2014, 2013 Annual Report, Chinese Government Persecution of Christians and Churches in Mainland China, January-December 2013.

1. As discussed with the applicant, the Tribunal also had concerns with the applicant’s claims that while her father was detained and held for [number] days, and was interrogated and beaten, sustaining bruises, he was released even though he refused to tell the authorities who else in that area was involved with the local church and who the elders were.  The Tribunal also asked the applicant whether she thought her father would have been allowed to continue in his employment with the government, as [an occupation] for government officials, in these circumstances (and in circumstances where, as claimed by the applicant, he has continued to regularly attend local church gatherings), and in circumstances where the local church was severely banned in her area and considered a dangerous cult as she claims.  The Tribunal does not accept as plausible the applicant’s response that the authorities might have thought it was easier to control her father by keeping an eye on him.  Considering the surveillance capabilities of the Chinese authorities, as noted above, and country information indicating that the Chinese Communist Party does not tolerate any form of dissent and that dissenters can face difficulties finding employment and places of residence, travelling freely and accessing social services[19], the Tribunal finds it most unlikely that the applicant’s father, having refused to cooperate with security authorities, and having continued to engage in the activities he promised not to engage in, would have been allowed to maintain his employment with the government.

   [19] DFAT Country Report, People’s Republic of China, 3 March 2015.

2. The Tribunal has considered the ‘Release Certificate’ from the [named] Public Security Bureau Detention Center, dated [in] February 2013, provided by the applicant in relation to the claimed detention of her father.  As discussed with the applicant, country information indicates that document fraud is common in China and that it is relatively easy to produce false documents, a range of which are commonly used in visa applications[20]. For this reason the Tribunal gives no weight to this document. Considering the analysis above, taken cumulatively, the Tribunal does not accept that the applicant’s father was detained for [number] days in 2013 as a consequence of attending a Local Church gathering in Fuqing City in Fujian province. The Tribunal does not consider that the applicant is a credible witness in relation to her claims that her parents have been detained in China as a consequence of having attended Local Church gatherings and therefore also does not accept that the applicant’s father was detained briefly in [2006].

   [20] Ibid.

3. The Tribunal also finds that the delay in the applicant applying for protection in Australia is inconsistent with her claims that her parents were detained and that she fears persecution because of her involvement with the Local Church on return to China.  The applicant arrived in Australia in February 2008.  The delegate’s decision record indicates that the applicant became unlawful [in] March 2011.  She did not apply for a Protection visa until [in] October 2013, more than two and a half years after she became unlawful and more than five and a half years after she arrived in Australia, and nine months after she claims her father was detained in January 2013.  The applicant indicated in her statement of claims that she came to Australia to pursue her studies.  She indicated that she did not apply for protection sooner because she was told it had proved to be very difficult to have an application approved in the past.  At the hearing she commented that initially she hoped to get a good education and qualifications and get a good job.  Later she went to see an agent in Sydney but was told if you have not been harmed personally it is very hard to get an application approved.  The Applicant told the Tribunal that she stopped studying in July 2009.  The Tribunal considers that from that point, if she feared persecution on return to China, she would have actively explored options to remain in Australia legally, and would have applied for a Protection visa much sooner than she did.  While the Tribunal has doubts that the applicant would have been advised by a migration lawyer or registered migration agent that a protection application would not succeed because she had not been harmed personally in the past, the Tribunal considers that, even if given this advice, if the applicant really considered that she was at risk of harm she would have applied earlier, and particularly after she claims her father was detained and mistreated in January 2013.

4. In considering whether the applicant would face a real chance of persecution amounting to serious harm as a consequence of her religious beliefs and practices should she return to China, the Tribunal has considered the applicant’s personal circumstances as well as her family circumstances.  As outlined above, the Tribunal does not accept that the applicant’s parents have ever been detained in China in relation to Local Church activities.  The Tribunal accepts that the applicant is a practising Local Church member in Australia and will likely attend Local Church gatherings in China should she return there. The Tribunal considers that the applicant has had a low profile role in the Local Church in Australia and that she has not undertaken a leadership role or engaged in any significant or public proselytising role.  The Tribunal considers that the applicant will undertake a similar level of activity within the church should she return to China.

5. The Tribunal accepts that the Local Church has been included on a Chinese Government list of ‘evil cults’.  The 2015 DFAT Thematic Report on Unregistered religious organisations and other groups in the People’s Republic of China[21] indicates that the government has launched a crackdown on Christian ‘cult’ organisations following an incident in May 2014, when a woman was reportedly beaten to death by six members of the Church of Almighty God at a McDonalds Restaurant in Shandong province for refusing to divulge her phone number, and that ‘the Shouters (Local Church) is among the several Christian groups the Chinese government considers to be ‘evil cults’.

   [21] DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015, sections 3.33-3.39.

6. The DFAT thematic report indicates, however, that credible sources have told DFAT that the government’s efforts to crackdown on Christian ‘cult’ organisations are primarily aimed at identifying and punishing the leaders.  Disciples are generally seen as vulnerable victims who have been taken advantage of by ‘opportunistic people who are trying to make money”.  DFAT comments that believers in unregistered Protestant Christian organisations number approximately 70 to 100 million and that ‘house churches’ can be found across China.  Gatherings of 30 to 40 people are generally tolerated, although DFAT is aware of cases where gathering of fewer peoples have attracted negative attention by the authorities.  Whilst DFAT assesses that members of unregistered church movements could be mistreated by authorities, DFAT does not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.

7. In line with the advice put to the applicant at the hearing that there appears to be a more liberal approach in Fujian province, in its Annual Report published in April 2015, China Aid includes a diagram of the total number of people detained for religious reasons by Province.  Significantly, Fujian province is not included in the diagram.[22]  China Aid reported that since the inception of Chairman Xi Jinping’s Administration, the scope, depth, and intensity of persecution against religious practitioners increased.[23]  However, while DFAT assesses that members of unregistered church movements could be mistreated by authorities, DFAT does not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.[24] 

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

   [23] ‘Guangdong house church persecuted in authorities’ attempt to suppress Eastern Lightning following Shandong attack’ 2014, China Aid Association, 19 June  < <CXBD6A0DE15057>

   [24] China Aid Association, China Aid, 2014 Annual Report, Religious and Human Rights Persecution in China

8. Noting the DFAT advice cited above indicating that the PRC government’s efforts to crackdown on Christian ‘cult’ organisations are primarily aimed at identifying and punishing the leaders, and considering the independent country information as a whole and the Tribunal’s conclusion that the applicant has not undertaken a leadership role or engaged in any significant or public proselytising role within the Local Church, the Tribunal does not accept that the applicant will be arrested or harmed in China because of her Local Church activities. The Tribunal does not accept that there is a real chance that the applicant would be seriously harmed or a real risk that she would face significant harm from the Chinese authorities because of her participation in Local Church activities if she returns to China, now or in the foreseeable future.

   Do the applicants have a well-founded fear of persecution if they returned to China?

9. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicants will be targeted for serious harm, if they were to return to China, now or in the foreseeable future.

10. Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).

    Complementary protection

11. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

12. Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that the applicants will suffer significant harm, now or in the foreseeable future.  The Tribunal therefore is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

13. There is no suggestion that any of the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Paul Windsor
    Member