1415259 (Refugee)

[2016] AATA 3978

1415259 (Refugee) [2016] AATA 3978 (31 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415259

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Westaway

DATE:31 May 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 31 May 2016 at 9:12pm

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 who claims to be a citizen of China, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 5 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘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.

18. 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

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant confirmed that she understood why her application was refused stating that the primary decision maker did not believe she was a Christian. The applicant confirmed that she completed her application by herself and that it was accurate.

21. The applicant came to Australia on a subclass 571 Schools Sector visa.

22. The applicant made the following claims in her application:

    ·     She became a devoted Christian when she was very young under the influence of her mother

    ·     She was excluded from high school for five days for attending family church activities in China

    ·     She fears harm from Chinese police officers

    ·     She believes she will be targeted based on her mother’s experience. She claims her mother was detained for [specified period] because she attended local family church gatherings in Fuqing City and the applicant also practices her religion in the same local family church.

    ·     The Chinese government does not approve of the local family church and cracks down on its activities

23. A statement attached to her application provided additional detail to her claims

    ·     Her mother is a devoted Christian who is a frequent worshiper at the Local Family Church and spreads the gospel to others.

    ·     At junior high school, she claims the principle called her in and brainwashed her and she was excluded from coming to school for five days.

    ·     During her time in Australia, she received a call [in] December 2012 from her father. He told her that her mother had been arrested by the Public Security Bureau whilst attending a church gathering that day.

    ·     The applicant’s father believed that his wife was reported by her [Relative A] to the local police claiming that the applicant’s mother was having a local family church gathering with other people on that day. The applicant’s mother was detained for [a specified period] and the applicant’s father was called to collect her.  She was carried out of the detention facility and had bruises all over her and was dishevelled.

    ·     She claims her mother asked her not to return at the moment and also said that she was told that the Public Security Bureau was informed that the applicant was attending the Local Family Church in Australia.

24. The applicant supplied a translated copy of a certificate stating that Detainee [name] (the applicant’s mother) was detained from [a date in] December 2012 to [a later date in] December 2012. This was supplied with the original protection visa application.

25. The applicant supplied a letter to the Tribunal from the [applicant’s church] confirming that the applicant has been attending church regularly from 2008.

26. The applicant supplied a copy of the decision record from the delegate.

27. The applicant’s representative provided a submission post hearing to the Tribunal which included a newspaper article detailing that the Shouters Church was abolished in 1995 because it is considered an illegal sect in China. Additional articles were also supplied from various sources also supplied with highlighted references explaining the Shouters and confirming that they are considered an evil cult and banned. Articles confirm that membership is growing yet the Chinese government persecute those found supporting this growth. Reference includes details of a businessman sentenced to death for supplying 33,000 bibles to Shouters. This occurred in 2000.

28. Also included in the submission were two RRT decisions which were remitted regarding Chinese applicants who claimed to be members of the Local Church.

29. The applicant is [an age] year old female born in the People’s Republic of China (PRC). She comes from Fujian province Fuqing City She arrived in Australia in 2008 and claims she was encouraged to come because an Australia agent was advertising educational opportunities. The applicant was the holder of a subclass 571 visa and came to [study].  She claims to have come by herself and attended [a specified college]. She confirmed she has returned to China to visit her family in November 2009. She stayed for two months.

30. She has maintained regular contact with her parents who live in China and calls twice per week. She stated she has no family in Australia. Her parents and her [brother] live in China.

31. Her brother was born in [year]. He is [occupation]. He lives with her parents.  He is employed. The applicant confirmed that her father is employed. Her mother is a housewife and her father does casual jobs he is [occupation].

32. The applicant works part time in a [business] as [occupation] and stated that she passed [her course] in Australia but has not enrolled in any further study. She stated that she is single. 

33. The applicant explained that she applied for a protection visa because her mother was arrested and placed in custody because she attended a Local Church gathering. She stated her mother is afraid.

34. She claims the arrest occurred on [a date in] December 2012 and she was held until [later in] December for [number] days. She claimed it was because someone had reported hers and other people’s involvement in a Local Church gathering. Others were arrested at the same time but she was unable to confirm how many. The arrests occurred at the host’s home.

35. They were at the gathering and reading from the bible. It was not a daily gathering. She stated that they didn’t know at the time who reported them but they do know now. It was [Relative A].

36. The applicant explained that she reported them because they had a dispute over money and they are not Christians. The applicant confirmed her grandparents are no longer living.

37. When asked how she knows it was her [Relative A], she said that because she is a relative, she knew where members of the Local Church met. She also stated that her immediate family no longer have any contact with them. She also confirmed that in spite of believing it was them, she did not confront them after the incident.

38. The applicant confirmed there were approximately [number]-[number] people at the gathering but new people who are rescued can come too and this increases attendees. She stated that everyone except for the elderly and children were arrested. They are all members of the Local Church.

39. The Tribunal asked the applicant if she believed in the Pope or the Virgin Mary and the applicant said no. She confirmed that her mother, father and brother still practices Christianity and have always been Christians as long as she recalls. She claims her mother joined the church in the belief that if one person is rescued then everyone is rescued. Then the rest of her immediate family joined. This was when the applicant was very young and she stated that she would attend gatherings when she didn’t have classes.

40. The applicant stated that they meet at the same place which is owned by a female member of the congregation (a sister) unless it is a very large gathering. It is located [close to] the applicant’s home in China. It is someone’s house. The applicant confirmed it was the same house her mother was arrested in.

41. She claims that the police warned and investigated those they found including her mother and tortured them by hitting them. They were released after a [specified period]. She stated that she believes this happened to her mother. The applicant’s father and brother did not go to the gathering because they had arranged something else.

42. The police have returned to the place of worship and are searching for people and trying to find out if they were still attending gatherings. She confirmed that they did come and arrest people again. When asked why her mother wasn’t arrested again she stated her mum was still recovering from injuries and didn’t attend the gathering at that time so they arrested others. Since then her parents have been very strict and careful about their attendance at church gatherings.

43. The Tribunal questioned the applicant about how her family have managed to avoid further arrests and how they are being more careful. She stated they have changed locations for the gatherings. The Tribunal stated this is different to what was originally said. The Tribunal put to the applicant that she had previously advised the Tribunal that her members of the Local Church worship at the same place as long as she can remember. The applicant was asked to respond but did not give an explanation nor was she able to explain why she changed her opinion. She simply stated that it was on the second time that people were arrested at the same place that they decided to change venues and now they meet further away in a brothers house. She stated that they are careful and low key and the saviour will protect them.  

44. The Tribunal asked the applicant if she had returned to China. She confirmed she had returned in 2009.

45. DEFAT country information put to the applicant regarding people practicing their faith in private. Applicant asked to respond. The applicant stated this is not the case.

46. She stated that her local church is considered anti-revolutionary and the government is still watching them closely.

47. The applicant was asked why her particular church is targeted. She claimed it is unregistered however she was resolute in her view that she will continue to attend and practice Christianity.

48. The applicant also referred to members of unregistered churches who have sought asylum in other countries. She stated that brothers and sisters have been arrested and ran to [two other countries] and obtained protection there.

49. The applicant explained to the Tribunal that last year (in 2014) there was an incident at McDonalds in China and now the shouters church is listed as the first religious outlawed church. The Tribunal asked if this was the church that the applicant belonged to, namely the Shouter’s Church. The applicant confirmed that it was a different denomination.

50. The applicant submitted photos. It was a government advertisement stating the 14 outlawed religions. The applicant stated that shouters was listed and that when her mother was arrested that the authorities claim that she was a shouter because they say “Oh Lord’ often and loudly.

51. The applicant attends her Church in [Australia] every week. It is called [church name]. The applicant goes there by public transport but if it is further away she claims that her brothers and sisters (male and female members of the congregation) take her there. She has been attending since 2008 when she first came to Australia and found out about it and her mother’s ‘sisters’ contacted her and showed her it.

52. The applicant is baptised. She explained that baptism to her means that she was born with Jesus and dies with Jesus.

53. Asked if the applicant celebrates Christian festivals she said no.  At church, they gather, sing and pray and eat wafers and drink wine. They also share information from the bible. Asked what the symbolism of the wine and wafers are, the applicant responded that the wafers are the body of the Lord and the wine is his blood.

54. The Tribunal asked if the applicant has a personal fear of returning to China and she stated that she cannot live without the Lord and the church and she will still return. It is also the Lords guidance that he picked her up. She was asked why she believes she will be targeted given her brother and father was never targeted and her mother has been safe for several years.

1. The applicant stated that her church has not been approved by the local government and there is no guarantee that her mother or her family will not be targeted again. She claims authorities will not stop reviewing unregistered church attendance and she is proud to suffer for the Lord. She stated that they are watching us closely and sooner or later they will do something. The applicant stated the denomination of her Church is called [name].

2. The Tribunal asked the applicant if her mother has a specific role in the church. The applicant stated that her family have hosted gatherings however she did not confirm that her mother was a church leader.  

3. The Tribunal put to the applicant country information which suggests her province is relaxed and that if she is not an organiser and leader and has no profile and is practicing in private in a small gathering she would be unlikely to be targeted. The applicant responded to the country information and said that Local Church attendance is  still not approved. She stated that China does not value human rights. She said that as a child she practiced her Christianity at the Local Church and she remains a faithful Christian and will definitely return to the church if she returns to China. The applicant stated that it is not just Local Church leaders who are targeted. She stated that Chinese do not have freedom of religion. The government is in control of everything. The applicant stated that western media does not provide relevant information.

4. The Tribunal put to the applicant that she could practice her faith in a registered Christian church and asked why she would not choose to do this. The applicant stated that there are registered churches but she refused to go because they are controlled by the Chinese government. The bible states the Lord should be the head of the Church.

5. She claims that registered churches have the Communist party as the head and voice of the church and this is why she doesn’t support registered churches.

6. The Tribunal asked the applicant how her family have remained safe since 2012 when as she claims her mother was arrested. She stated that they have changed the gathering spot and communicate over mobile about date and time. They are more careful than before and they have the protection of the Lord.

7. She wanted to emphasise that the Chinese government doesn’t approve of the church and she is a Christian and enjoys Church and believes one cannot live without their religion.

8. The applicant stated that she must follow her heart and spirit. She said she fears physical harm but she believes that the Lord has a message that she must stay with the Church in Australia and they need young people in Australia to serve the church.

9. The applicant spoke of passages from the Bible about evangelising.  She claims that freedom to practice your own religion and respect for human rights are non-existent in China. She claims she can continue to serve the church and believes it is the Lords arrangement to be here and speak to the Tribunal. Unless the Chinese government withdraws the illegal status of the unregistered churches she does not want to return to China. She claims it is a long and difficult wait.

   COUNTRY INFORMATION

10. The following information provides a background on the ‘local church’, also known as the Shouters.

11. Local Church membership is officially banned in China and considered an “evil cult”.[1] DFAT’s March 2015 report[2] states that believers in unregistered Protestant Christian organisations, number approximate 70 to 100 million and that home churches can be found across China.  Gatherings of 30 to 40 people are generally tolerated, although DFAT are aware of cases where gathering of fewer peoples have attracted negative attention by the authorities.  Whilst DFAT assess that members of unregistered church movements could be mistreated by authorities, they do not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.

    [1] 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.

    [2] 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.

12. There are a significant percentage of Christians in Fujian province, estimated between 10 and 15% of the overall population.[3]

    [3]

13. The authorities in Fujian were considered to be one of the more liberal minded groups within China, and that unofficial church groups were permitted to practice as long as they did not cause significant issues for the authorities[4].

    [4] Background Paper DIBP, China: Protestants in China, August 2015

14. DFAT’s March 2015 report[5] states that the State Administration for Religious Affairs (SARA) permits friends and family to hold small, informal prayer meetings without official registration. It confirms however that there are some house churches which do attract the negative attention of authorities and others that may have members in the thousands which do not.

    [5] 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.

15. More specific country research is detailed below and relates specifically to the findings.

    FINDINGS AND REASONS

16. The Tribunal finds that the applicant is a national of China. The Tribunal has had regard to the applicant’s passport as sighted at hearing. The applicant made no claims to be a national of any other country. The Tribunal accepts that her claims should be assessed against China for the purposes of the Convention in s.36(2)(AA) of the Act for the purposes of the complementary protection obligations.

17. The Tribunal finds that the Convention ground of religion is the essential and significant reason for the harm claimed to be feared.

18. The Tribunal accepts that the applicant is a Christian and a member of the Local Church both in [Australia] and in China. The applicant provided detailed knowledge of her beliefs and she was able to convey her commitment and faith in her responses to the Tribunal. Furthermore the Tribunal notes that the applicant provided a reference from the Local Church in [Australia] confirming the applicant’s longstanding membership and attendance at this church.

19. The applicant was able to talk knowledgably about the difference in registered and unregistered churches with conviction and clarity as to why she and her family support the unregistered Local Church rather than worshiping at registered Christian churches in China.

20. The primary issue in this review is 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.

21. Considering all of the applicant’s evidence, the Tribunal accepts that the applicant is a committed and active member of the Local Church. It accepts that she has practised this religion since childhood and that since coming to Australia she has continued to engage in church activities in Australia.

22. The Tribunal had the opportunity to hear extended oral evidence from the applicant about her mother and the claimed detention and beatings. The Tribunal is cognisant of the fact that the applicant was not in China when the claimed event occurred and is relaying information which was relayed to her by her father. The Tribunal also acknowledges that reference is made in the primary decision (a copy which was supplied to the Tribunal by the applicant) to a certificate of release which was supplied to the Department pertaining to her mother’s imprisonment. This certificate was found not to be in keeping with standard discharge certificates normally issued in China and the delegate did not place weight on this evidence. The applicant did not provide the Tribunal with further information about the document or further evidence other than her oral account. The applicant’s oral account was presented in a plausible manner. However the Tribunal is of the view that the provision of certificate which did not meet standard forms issued in China detracts for the applicant’s credible oral evidence. The Tribunal believes this supporting evidence may have been provided to enhance the claims. The Tribunal places no weight on the certificate presented to the Department but places some weight on the credible and consistent oral evidence provided by the applicant regarding her mother’s attendance at the local church, the relationship with her [Relative A] who they believe dobbed her in and warnings by the Public Security Bureau.  These scenarios are supported by country research.

23. Despite the Tribunal’s findings above regarding the applicant’s mother’s experience the Tribunal’s task is to consider whether the applicant faces a real chance of persecution, now or in the reasonably foreseeable future. As discussed above, the Tribunal accepts that the applicant is a practising member of the Local Church. The Tribunal is also mindful that the applicant was a minor prior to coming to Australia in 2008 ([age] years old) and therefore her position on return to China now is considerably different.

24. The most recent sources available indicate that the Local Church (‘Shouters’) is on the list of ‘evil cults’ which are illegal in China.

25. The US Department of State 2014 Report on International Religious Freedom – China states that the Shouters are defined by the government as an ‘evil cult’ and are banned by law:

    “Certain religious or spiritual groups are banned by law. The criminal law defines banned groups as “evil cults,” and those belonging to them can be sentenced to prison. A judicial explanation states this term refers to: “those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by molding and spreading superstitious ideas, and endangering society.” There are no published criteria for determining, or procedures for challenging, such a designation. The government maintains a ban on the Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Zhong Gong (a qigong exercise discipline), and Falun Gong. The government also considers several Christian groups to be “evil cults,” including the Shouters, Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church”.

26. The Department of Foreign Affairs and Trade in their thematic report on unregistered religious organisations in China 2015 also asserts that ‘the government also considers several Christian groups to be “evil cults,” including the Shouters’. 

27. According to the Congressional-Executive Commission on China 2015 Annual Report, several Chinese news outlets republished a list of 14 cults (which include the ‘Shouters’) that have previously been identified by the state as evil cults and are illegal:

    ‘China Clearly Identified 14 Cult Organizations (List) Including the Shouters Sect’ [Zhongguo yi mingque rending huhan pai deng 14 ge xiejiao zuzhi (mingdan)], Youth Times, reprinted in People’s Daily, 3 June 14; China Anti-Cult Association, ‘China Anti- Cult Association: Be Highly Vigilant About Various Cults That Harm the Public’ [Zhongguo fan xiejiao xiehui: yao gaodu jingti weihai gongzhong de gezhong xiejiao], reprinted in Kai Wind, 3 June 14; Sha County News Net, ‘Anti-Cult Knowledge—I Know’ [Fan xiejiao zhishi—wo zhidao], 28 May 15. 

28. The Tribunal notes the independent information it put to the applicant in the hearing which provides that the province of Fujian has a thriving and rapidly-growing Christian community and that official religious policy had been applied relatively liberally in Fujian, although there had been occasional crackdowns on house churches. It has been reported that the Local Church in Fujian’s rural Longtian district, from which the applicant is from,  built a massive church complex with a 4,000 person seating capacity and adjoining classrooms for Sunday school  (which was disputed by Local Church sources who stated that the Local Church has a 1000 seat property in Longtian district in Fujian province and explained that the 4000 set complex referred to by Kidnopp belonged to a different group whose name translates to “the  Callers”.. ).  However, the Tribunal finds that this needs to be balanced against the independent information before it regarding  the government’s more recent campaign against illegal religious sects following the May 2014 McDonald’s incident involving members of the Church of Almighty God, which some sources say is affiliated with the ‘Shouters’ or the Local Church. 

29. According to the United States Commission on International Religious Freedom (USCIRF), on 3 June 2014 the Chinese government published a list of 20 ‘cults’ and began ‘a sweeping crackdown’ against them.   As part of the ‘anti-cult’ campaign, the government ‘issued a directive to “eradicate” unregistered churches over the course of the next decade’. 

30. A Foreign Policy 6 June 2014 report on the May 2014 killing of a woman in a McDonald’s restaurant in Shandong province by six members of The Church of the Almighty God, indicates that the State utilised State media to announce a campaign against illegal religious sects:

31. Chinese state media has responded to the violent murder and subsequent outcry with a steady drumbeat of articles calling for a crackdown on religious sects. On June 3, state news agency Xinhua ran a front-page piece providing the names, descriptions, and “social harms” of 14 officially identified “evil religions,” or cults. In addition to the Shouter’s Cult, affiliated with the Church of Almighty God, other cults include the Apprentice Society, founded in the central province of Shaanxi in 1989 and which the article claims now boasts around 300,000 followers.

32. In June 2015 the China Aid Association reported that two house church Christians from Shandong province were found guilty of ‘using a cult to undermine law enforcement’ and sentenced to three and four years.  Zhao Weiliang was sentenced to four years’ imprisonment as an organiser in the Total Scope Church, and Cheng Hongpeng was sentenced to three years as an active participant.  The two were accused by the Chinese government of being members of the Total Scope Church, also known as the Born Again Movement, which the Chinese government has labelled a cult.  

33. The China Aid Association also reported that more than 20,000 religious practitioners were accused of being heretics and were taken into police custody during the Chinese Communist Party’s ‘anti-cult’ campaign in 2014, with around 1,100 people convicted on criminal charges and sentenced.   China Aid described the 2014 campaign against ‘cults’ as ‘similar to the crackdown on Falun Gong in 1998’.   Many ‘anti-cult’ trials have been conducted in secret, with the accused forced to accept government-appointed lawyers and not allowed to hire their own legal counsel.   In addition, the Chinese government ‘intimidated and pressured family members of those accused of so-called “cult activities” to not raise their legal cases and incidents of persecution publicly, thus many remain unknown’.

34. China Aid Association statistics indicate an increase in ‘religious persecution’ during 2014:

    “In 2014, China Aid collected information on 572 cases of religious persecution across the country, which increased 300 percent from 2013. Of the 17,884 people who were persecuted for their religion, more than 1,592 were church leaders, which represent a 140.89 percent increase over the previous year. The 2,994 people who were detained constituted an increase of 103.67 percent over the previous year. The CPC sentenced 1,274 people, a 10,516.67 percent jump over 2013. There were 71 severe abuse cases, including verbal, mental, and physical abuse and torture, an increase of 343.75 percent over the previous year. In those severe abuse cases, 242 people were abused, which demonstrates a 384 percent increase compared to 2013.14”.

35. Reports indicate other religious sects also deemed illegal by Chinese authorities have had some members detained in recent times. China Aid Association reported on 9 July 2015 that eight persons of the Daguan Church, which has a membership base or ‘more than 300’, were detained in Guizhou province. According to the report, eight ‘members … have been put under criminal detention for holding “illegal” worship services’.

36. Persecution of the Daguan Church began with a May 24 raid on the church’s Sunday worship service. Authorities ordered the church to stop meeting and took about 30 people into custody. Most were released, but 12 were administratively detained following that raid.

37. Xu Guoyan was released on June 24 at the end of her sentence and she returned to Hangzhou, Zhejiang province. Xu Guoying, Xu Guoqiong, and Xu Guoyan have also been released from administrative detention. Xu Guoying and Xu Guoqiong were both detained twice for a total of 25 days. Xu Guoyan, Wang Yanggui, Fu Hanguo, Shi Taiqun, Wei Qing were each held for periods ranging from seven to 15 days.18

38. On 19 June 2015, China Aid Association reported that ‘authorities in multiple provinces have increased their persecution of heretical groups, including the release of a list of 14 cult organisation’.

39. The Tribunal accepts that the applicant is committed to her beliefs and if she returns to China will continue to practise her Christian faith as a member of the Local Church. The Tribunal accepts on the information cited above that since mid-2014 those religious groups considered by the Chinese authorities as evil cults have been targeted in an effort to eliminate these groups and as a result there has been an increase in cases of religious persecution. While the Tribunal accepts that the applicant would be returning to Fujian where there has been some tolerance of unregistered churches and groups such as the Local Church, as compared to other provinces in China, the Tribunal notes that there is limited information available regarding the instances whereby individuals were detained and/or mistreated by authorities in Fujian. In light of the nationwide campaign against groups considered evil cults and the fact that the relationship between authorities and unregistered churches across China may be fluid and can depend on the local implementation of official polices, and also taking into consideration the matters the Tribunal has accepted in relation to the applicant’s particular circumstances, the Tribunal finds that there is more than a remote chance that if the applicant returns to China and practices his religion, which includes him engaging in evangelical activities, that he may be arrested, detained and physically mistreated as detailed in the country information cited above.

40. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

41. The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

42. I find that the applicant has a well-founded fear of persecution for a Convention reason. Further, the Tribunal finds that the applicant's religion is the essential and significant reason for the persecution.

43. The Tribunal does not consider on the evidence before it that the applicant would escape problems from authorities by moving to other parts of China. The crackdown and focus on Christian worshippers in unregistered churches is not restricted to any one location and the Tribunal finds that the applicant would face the same difficulties wherever she was living.

1. The harm feared in this case is a product of the policy of the State and therefore the Tribunal finds that the applicant is unable to avail herself of the protection of the Chinese government.

2. The Tribunal finds that given the applicant is a genuine member of the Local Church in Australia and her mother is also a member of the local church in China she faces a real chance of being monitored closely, prosecuted, detained or imprisoned in forced labour camps, brainwashing centres or mental health centres.

100. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

CONCLUDING PARAGRAPHS

101. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

102. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Rachel Westaway
Member