1506327 (Refugee) - [2016] AATA 4872

1506327 (Refugee) [2016] AATA 4872 (18 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1506327
COUNTRY OF REFERENCE:                  China
MEMBER:Amanda Paxton
DATE:18 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 April 2016 at 11:02am
CATCHWORDS
Refugee – Protection Visa – China – Religion – Local Church - Shouters – Previous adverse interaction with authorities – Witness credibility – Inconsistent evidence – Vagueness in claims – Limited knowledge of religion – Genuineness of faith – Applicant genuinely practiced since in Australia – Lack of evidence of persecution in home country
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZGYT v MIAC [2007] FMCA 883
SZMZA v MIAC (No. 2) [2008] FMCA 1418
SZQOJ v MIAC [2012] FMCA
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

The applicant is a citizen of the People’s Republic of China and is now [age]. He first came to Australia as a [visitor] in January 2011. He has not departed Australia since that date.
[In] November 2013 the applicant applied for a Protection visa. Together with the application provided a typewritten statement dated [in] November 2013 setting out his claims in writing and a copy of the biodata page of his Chinese passport.
The applicant attended an interview with the delegate of the Minister for Immigration [in] February 2015. The applicant provided the delegate’s decision record to the Tribunal.
The delegate refused to grant the visa [in] April 2015 on the basis that she did not accept the applicant’s claims concerning his religious practice, i.e. that he was a member and participant in a Local Church in China, and that his understanding of the Christian faith was limited and not commensurate with a person who claimed to have been a Christian almost his whole life. The delegate found that his attendance at Local Church in Australia was limited, and concluded that the applicant had fabricated his claims to support an application for protection. On this basis, the delegate was not satisfied that he will take any steps to become involved in Christianity when he returns to China. The delegate did not accept that the applicant had been detained by police, or that he will be in the future. The delegate was not satisfied that his mother had been arrested on account of her attendance at an unregistered church. The delegate did not accept that the applicant had experienced past harm in China for reasons of his religion or any other reason. The delegate found the applicant did not have a well-founded fear of persecution or that there was a real risk he will be subject to significant harm if he returned to China.
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) [in] April 2015.
The applicant appeared before the Tribunal on 24 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.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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.
Section 91R(3) of the Act provides that any conduct engaged in by a person in Australia must be disregarded in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. If the acquisition of a religious belief, in this case Roman Catholicism, occurred entirely in Australia then s.91R(3) of the Act is necessarily engaged and the applicant must satisfy the Tribunal that his conduct has been brought about otherwise than for the purpose of strengthening his claim. The onus is on the applicant to satisfy the Tribunal as to the motivation for their conduct.[1]
[1] SZMZA v MIAC (No. 2) [2008] FMCA 1418, Smith FM at [16] – [17]
When considering the application of s.91R(3) of the Act, the full extent of the conduct in Australia must be clearly identified. In this regard, the term ‘engaged in’ has been construed by the courts as meaning ‘carried on’ rather than ‘commenced’.[2] By way of example, a person may commence engaging in religious practice in Australia to support a protection claim but, over time, may become a genuine adherent such that they are carrying on the conduct for different reasons. The longer the gap between the commencement of the relevant conduct (in this case, Roman Catholicism) and the making of a claim for protection, the more difficult it would be to demonstrate that the conduct was engaged in solely for the purpose of strengthening the claim for protection.[3]
[2] SZGYT v MIAC [2007] FMCA 883, Drive FM at [12]
[3] SZQOJ v MIAC [ 2012] FMCA 298 Driver FM at [45]
Complementary protection criterion
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’).
‘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.
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
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.
SUMMARY OF CLAIMS
The applicant claims to fear returning to China by reason of his membership and attendance at Family Church gatherings in Shandong, China. He claims he, along with others at a gathering, was detained when he was attending a gathering in, and that he was held for one night without charge. He claims that his mother was detained in 2013 for involvement with this church. The applicant claims that in Australia, he commenced attending the Church in [City 1], a Local Church. He claims he will suffer harm if he returns to China as a result of his religious practice.
The applicant lodged a statement dated [in] November 2013 setting out his claims together with his application. At the Tribunal hearing he stated that a friend had helped him fill out the application and prepare the statement. He told his friend his account of events and his friend typed his statement and read it back to him. The applicant stated he agreed with the contents of his statement.
In his statement he claimed:
·     I am applying for a protection visa as I don't want to return to China where I face persecution by Chinese Communist regime on the grounds of my religious practice.
·     My full name is [name removed] and I was born on [birth date] in [City 2] of Qingdao Shandong Province China. My current marital status is divorced and I arrived in Australia on a [visitor] visa [in January] 2010. Since arriving in Australia, I have been living in [City 1] all the time.
·     I was born into a Christian family and our whole family worship Lord Jesus, We have been practising our religious belief at our local family church in China. We don' t practise at government registered church as we believe such government registered church is governed by the Chinese Communist Party. In our family church, we regarded Lord Jesus as head of our church. Witness Lee is one of two founders of our local family church and Witness Lee was from Shandong Province, therefore family church in Shandong attracted a large number of population and we were able to enjoy of the glory of Lord Jesus in Shandong Province.
·     I was baptised when I was about [age] and has been attending our church gathering ever since I was a child. My parents are both devoted Christian members who had been worshipping our Lord Jesus at the local church in China. I followed my parents to practise at our local church. Apart from attending church gathering, we also spread the gospel with our elders from our church. We had been doing so in the hope that more and more people would be saved.
·     Our elders often visited people who were not Christians who were becoming sick or those medical conditions cannot be cured with medication. They would encourage them to join our church and believe in god, telling them one can have sins cleared away and would be able to live eternal life.
·     Our religious practice at the local family church is not permitted by the Chinese government. Members of our church group often suffer regular harassment, arrest and detention by the authority.
·     I have previously been detained by [Police] officers for one night [in October] 2009 while attending a local church gathering with other church members. I was released from the police office after connections were sought for and a fine of $500 was paid. I did not receive any formal discharge sheet from the police office.
·     I lost confidence on Chinese government and I chose to come to Australia [in January] 2010. I did not lodge the protection visa application with the department after I arrived in Australia as I did not have a release document to prove that I was arrested and detained by the police officers in [City 2].
·     My mother was arrested and detained by [police] officers [in May] 2013 while she and other church members were gathering at a church brother's house in [City 2]. She was arrested and detained with seven other members for seven days. They were taken away for questioning and then transferred to [a location] where she and the other members were locked up for [a period of time].
·     My mother told me that police officers at the detention centre assaulted her. Police officers said mum was a member of evil cult. They tried to make mum believe God does not exist. They slapped mum in the face, punched her in the body and kicked her in the leg.
·     Finally, a fine of $1000 was demanded for mum to be released. Mum was warned by the police officers not to participate in further local church gathering in the future; otherwise, the punishment is going to be more severe. They said local church in China has been banned by the government and is now illegal to practice and no one is allowed to attend such church gatherings.
·     Mum told me that since she was arrested and detained, she had nightmares all the time. She was fearful of being arrested and detained by the police officers in the future. Mum is very happy that I have been able to practice my religious belief without any fear and hesitation in Australia. Mum encouraged me to stay in Australia.
·     I am concerned that if I go back to China in the foreseeable future, I would come across the same issues mum had experienced in China in May 2013. In addition, I was myself detained in October 2009 in China. I did not lodge this protection visa application with the Department of Immigration & Border Protection in the past because I did not have a proper detention certificate that was issued tome by Police. Although mum has a release certificate that was issued to her from [the police], I was not quite sure if I can use it to support my visa application. I was also told that it is very difficult for a protection visa application in Australia to be approved.
·     Since I arrived in Australia, I have been able to attend local church gathering in [City 1] Australia on weekly basis. I sincerely hope that I can be granted a protection visa so that I can continue to enjoy the freedom of my religious practice in Australia.
The applicant also provided the following claims in a Statutory Declaration dated [in] November 2015 to the Tribunal at the hearing:
·     I was born in [City 2] Shandong Province China on [birth date] and I arrived in Australia [in January] 2011. Since arriving in Australia, I have never been back to China. I am currently divorced and I have a son who is still living in China.
·     Due to my active involvement at local family church in China, I had suffered personal harm and persecution by Chinese authority [in October] 2009 when I was arrested by [police] officers while I was attending a local family church gathering. I was set free on the next day and no formal charge was laid against me and I received verbal warning that no more family church gathering, otherwise, I would be detained for longer period of time or even be put into jails.
·     The church which attended in China is local family church which was established by Brother Watchman Nee and Witness Lee. Witness Lee was from Shandong Province, therefore we have many followers at our local family church and our population at the local family church is huge. In the last several decades, our local family church had been banned in China and was classified as "evil Cult" and "shouters". Many members of our local family church no matter if they hold leading role or not, have suffered harm, assaults, abuse and persecution by Chinese authority.
·     Upon my arrival in Australia, I did not lodge my protection visa application straight away as I had sought advice from a legal practitioner if I was eligible to apply for the Protection visa in Australia, I was advised by the lawyer that unless I can provide substantial evidence that I had suffer persecution by the Chinese authority, chances are very slim for the application to be successful, therefore I gave up the thoughts to lodge the protection visa application soon after I arrived in Australia.
·     On [in May] 2013, my [mother] was arrested and detained by [police] officer for six days where she was interrogated, assaulted, abused and threatened. She had suffered both physically and psychologically. Until now my mother is still very fearful of being arrested and detained by the authority while she attends our local family church gathering in China.
·     Our local family church as nicknamed by Chinese authority as "shouters" remains on the top list of the 14 illegal religious bodies in China. Anyone who is discovered by the authority while practicing their religious activities at our local family church is subject to arrest and detention by the Chinese authority.
·     After my mother was detained in May 2013, I did not lodge the protection visa application immediately as I thought it was my mother who was arrested and it was not myself who was arrested thus I might not be entitled to apply for the protection visa.
·     In early November, while discussing with my church friends about what had happened to my mother in May 2013, my church friend was very sympathy on me and told me although it was my mother who was arrested, yet I can still apply for the protection visa as she knew someone at our church who had applied for this type of visa and had been successful. Thus, I lodged this Subclass 866 protection visa with the Department of Immigration & Border Protection [in November] 2013.
·     At the time I was interviewed at the Department of Immigration & Border Protection, due to the incompetency of the Mandarin interpreter, there was some misunderstanding between me and the case officer. For example, when I said at our gathering on Sunday, we eat bread and drink wine, the Interpreter translated as we had some food.
·     I can remember when I was asked the address where I attended my gathering on Sunday, I said at [a particular location], the interpreter was not able to interpret my answer correctly and this might have caused some negative impact on the outcome of my visa application.
·     I have located some country information about Chinese government's attitude towards "shouters" and Christianity and I have also been given a previous RRT decision which contains a lot of information about Christian and "shouters” suffering persecution by Chinese authority. I hope this information will be helpful for your decision on my review application.
·     I am a devoted Christian who had been practising at our local family church both in China and in Australia.
·     If I have to return to China in the foreseeable future, I will most definitely continue to practice at our local family church. As "shouters" is banned in China, there are strong chances that I can be arrested and detained by Chinese government when our gathering is discovered by the authority.
·     I really enjoy the freedom of the religious practice in Australia and I don't wish to return to China where I am fearful of my personal safety. So long as the restriction and ban of "shouters" remain in place, chances are always there for our local church members to suffer persecution by the authority in China.

The applicant also provided:
·     Letter of reference dated [in] January 2016,from [Mr A] and [another], co-ordinators at the Church in [City 1], attesting that the applicant attends the Church in [City 1] regularly;
·     Copies of photos of the applicant at [gatherings] of 2014 and 2015;
·     Article by Laura Bowers, Christian Cults in China, dated 28 January 2014, providing an historical essay on “Christian cults” including the Local Church;
·     Internet articles, dated June 2014, concerning the crackdown on “Evil cults” following the bludgeoning to death of a woman in Eastern Shandong by alleged cult members;
·     Internet article about Shouters describing them as an “unbiblical cult”;
·     Internet article, dated 28 November 2012, by Recue Christians, and South China Morning post article, concerning seven Shouter Christians taken into custody charged with engaging in ‘cult” activities in Ye County, Henan province.
At the Tribunal hearing the applicant made the following claims:
The [applicant] was born and grew up in [City 2], Shandong Province, was married in 1997. He divorced in 2009 when he and his wife, who worked in [occupation], could not get along. He had lost money because of business difficulties and they had different religions, because she attends the government church. The applicant has [a] son in China. The applicant’s parents are also in [City 2], along with his [sister].
The applicant had a [business] which he started in 1999, with [details of business]. In 2010, [an accident occurred] and the insurer did not cover the costs. The court impounded [the affected assets] and he had to pay [compensation]. Finally, the applicant borrowed from many people to pay the costs and the Court finalised the matter.
The applicant did not go to church often after he was married because he had his business he was busy every day and night and did not have time to attend church. After the [accident], he lost his business and had trouble with his relationship. He felt depressed and felt the need to pray to Jesus Christ. He prayed before this incident but not as often.
He started attending gatherings with his mother and sister at a home in [City 2] in 2010. He attended two or three times a week. Different elders would speak, they had Bible readings and they would share their feelings or understanding of the Bible. He got to know just a few of the people at the gatherings because he was not there for a long time.
[In] October 2009, the applicant was arrested. The applicant was at a gathering with over 10 other people. The police took them to the local police station in a van. The police interviewed them and if they were not satisfied with what they said they beat them and threatened us, and took notes. They separated the group. They asked the applicant how often did he go and how long had the church been there and who were there. They also asked the applicant who the elders were. They said that the applicant should go to the larger church; that they could not meet anymore; and stated that they were giving a warning on that day but if the same thing happened again, they would be punished.
The police ask them to pay a penalty of 500 and then released them. The applicant has no evidence of this occasion. He was given a receipt for payment but he thought it was not useful so he didn’t keep it.
The applicant continued to go to gatherings secretly because his mother wanted him to continue serving the Lord.
The applicant applied for his passport in [a month in] 2009 and he experienced no difficulties when applying. He experienced no difficulties in departing China.
After the arrest incident, the applicant tried to go overseas but it was very difficult to get visa. He had lost a lot of money in his business and he had a lot of living stress, but the key point was he was arrested for one night. He attended church but this was not allowed.
The applicant did not know what visa to apply for, and was concerned that if he was not approved it would be more difficult next time. He found an agent to do visa. The applicant could not make much money at that time. He worked [in a number of occupations].
The applicant’s mother told him that in May 2013 she was arrested by the police for 1 week attending church. They beat her and abused her and threatened her that if arrested again she probably go to jail. She wrote a statement and paid 1,000 penalty. He has provided evidence of his mother’s detention.
In Australia, the applicant commenced attending the Church in [City 1] around one year after arrival and he has been regularly attending various meetings of the church and attended [events] in 2014 and 2015.
The applicant will definitely attend the same church if he returns to China and he will definitely suffer unless the government removes the prohibition on attending his church. He wants to enjoy freedom of religion. The applicant is scared he will be arrested if he returns.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims to be a Chinese national. Based on the copy of the applicant’s passport, I find that China is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Credibility
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.
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.
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.
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).
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.)
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).
Assessment of claims and evidence
The applicant presented at the hearing in a sometimes confusing and vague manner. The applicant also provided inconsistent information about some key dates. When asked about these responses, the applicant stated that he had had an accident and his memory was poor. The Tribunal has considered the applicant’s evidence having regard to the published guidelines of the AAT in relation to credibility, and the applicant’s stated reason for his confusion. The Tribunal noted that the applicant was clear about many of the details in his life, but it was when he was questioned about central issues relevant to his claims, such as the year of his accident, and the date of his resumption of the practice of his faith in China, that his evidence became vague. The Tribunal considered that this lack of consistency in the applicant’s ability to respond suggested that his inability on some occasions was not the result of poor memory because of an accident. For this reason, the Tribunal does not accept the applicant’s claim to have a poor memory. The applicant’s vague and confused responses led the Tribunal to have serious doubts about the general credibility of the applicant as a witness.
In addition, the Tribunal has considered applicant’s evidence to the delegate of the Department in relation with his protection visa application, described in the delegate’s decision record, a copy of which was provided to the Tribunal. The Tribunal has identified a number of areas where the applicant’s account differed from that provided at his hearing with the Tribunal. In his Departmental interview, the applicant did not identify his claim, made at the Tribunal, that he had a break in the practice of his faith for most of his adult life until his business loss and his marital difficulties in 2009. The difference in the applicant’s account of the development of his faith at his interview and at his hearing led the Tribunal to have significant concerns about the credibility of this aspect of his account. For these reasons, the Tribunal was not convinced that the applicant was a generally credible witness.
On the basis of the documentary evidence before it, the Tribunal accepts that the applicant was born, and grew up, in [City 2], Shandong Province, China, and that he remained there until his departure in January 2011 at the age of [age]. On the evidence of the applicant, the Tribunal accepts that he is divorced and has [a] son in China.
In respect of the applicant’s religious experience in China before his departure in January 2011, the Tribunal considered the applicant’s claim that he grew up in a devout Christian family which worshiped at house gatherings of their local Family Church, the applicant’s term for the Local Church worshippers or “Shouters”. The Tribunal notes that in his statement to the Department [in] February 2015, the applicant stated that he attended house church gatherings since he was a child. The delegate’s decision record indicates that he maintained this claim at his interview with the Department, stating that he became a Christian when he was a young, following his mother, and that he attended meetings regularly but did not have a particular role in the gatherings. The Tribunal noted that his knowledge and understanding of key aspects of the Christian faith, such as the meaning of Easter, as documented in the delegate’s decision record, was very limited and superficial. The Tribunal noted the applicant’s concern that he had been misinterpreted in his interview in relation to his activities at gatherings, i.e. that he stated he was translated as saying they “eat rice”, rather than that they “eat Jesus body and drink his wine”. The Tribunal took this concern into account but overall formed the view that the applicant’s understanding of Family church practice and belief was not commensurate with that which the Tribunal would expect of a person who had been participating in church worship for many years since he was young. The Tribunal considered that the disparity in his claimed house church gathering attendance and his vague understanding of the faith articulated by the applicant and recorded in the delegate’s decision record, raised serious concerns about the credibility of his claims.
At his hearing with the Tribunal, the applicant was asked to give an account of his experience in the Family Church faith. When questioned about his attendance of Family Church gatherings, the applicant stated that he did not attend church much after he married, i.e. when he was [age] years old, because he was so busy with his business. He stated that he resumed his faith and started attending in 2009 - 2010 when his business collapsed and he was experiencing problems at home in his marriage. He claimed that, at that time, he sought support in prayer from God. As the delegate’s decision records, the applicant stated at his interview with the delegate that he had a break in his attendance and resumed attendance in 1997 after he married. He did not make reference to the significant events which precipitated a lapse in his participation, or the resumption of his participation in faith life, which the Tribunal would have expected in an account about his religious faith and practice. This shift in the applicant’s account of the development of his faith in China leads the Tribunal to have significant concerns about its veracity.
The Tribunal heard that the applicant was arrested along with ten others when he was attending a gathering. Initially, the applicant claimed that this arrest occurred 2010, the time he identified as when he resumed his church practice. As this period conflicted with information provided to the Tribunal in his statement, the Tribunal sought clarification. The applicant was confused and hesitant and the interpreter found his response difficult to understand. The applicant stated that at that time he had [an] accident and he does not have a good memory, and that it has been a long time since this period. On reflection, the applicant stated that the [business difficulties] and his marriage difficulties occurred in 2009 and the Tribunal accepts that his was the period he was discussing.
The applicant described his arrest, stating that he is not sure how the police knew about the gathering; maybe someone reported it. They had lots of cars, and a number of people went by van to the local police station. The police interviewed them and if they were not satisfied with what they said they beat and threatened them, and took notes. They asked the applicant how often he went to the gatherings, who went and how long the church had been there. They also asked the applicant who the elders were and said that that the applicant should go to the larger church. He was detained overnight and released after he paid a fine of 500.The applicant stated he has no evidence of this occasion; he was given a receipt for payment but he thought it was not useful so he didn’t keep it. The Tribunal asked if he knew the others at the gathering and he responded that he did not attend the church for long, less than 12 months, and this was why he did not get to know many people. The Tribunal enquired what the applicant did from the time of his arrest in 2009 to his departure in January 2011. In a very hesitant and vague response, he stated that he practised in secret. In considering the applicant’s claim to have been arrested while participating in a church gathering, the Tribunal has had regard to it concerns about the applicant’s general credibility, and also found his account general. The Tribunal did not find the applicant’s claim in relation to obtaining a receipt from the police on his release convincing, and noting that he had not previously mentioned that he had at one time had evidence of his detention considered that his aspect of his account had no actual basis in fact. The Tribunal does not accept that the applicant was arrested and detained by the police as claimed.
The Tribunal enquired whether the applicant experienced difficulties of any kind in the considerable period between the occasion of his claimed arrest, which the applicant fixed as in 2009, and his departure from China in January 2011. The Tribunal noted during this time, the applicant applied for and was granted a passport in his own identity. In response, the applicant stated that he did not experience any difficulties obtaining his passport but that at this time it was very difficult for him to survive because his business had finished and he had to work and support myself. The applicant’s response to questions as to whether he continued religious practice after his arrest was hesitant, vague and limited. He stated that he practised in secret, went to gatherings and passed on the gospel. On the evidence before it, the Tribunal does not accept that the applicant practised his faith in secret, went to gatherings and passed on the gospel as claimed.
In assessing the credibility of the applicant’s claimed experiences in China in respect of his faith, the Tribunal notes, as discussed with the applicant, that the applicant applied for his passport, which was issued after his claimed arrest, and was able to depart China legally on a passport in his own identity. As put to the applicant, the PSB have comprehensive facilities to monitor exit procedures at Chinese airports[4] and the Tribunal considers that the ease of his departure indicates that the applicant was not of any adverse interest to the authorities for any reason.
[4] Department of Foreign Affairs and Trade, People’s Republic of China Country Report, 3 March 2015.
In considering the credibility of the applicant’s account of his experiences in relation to his faith and arrest in China, the Tribunal has also considered the long delay between the applicant’s arrival in Australia and his claimed commencement of his involvement with the Church in [City 1] (a Family/Local Church). The applicant was vague in his response to enquiries about his commencement, stating that he could not remember when he started attending church, perhaps about one year after his arrival in Australia, i. e. in 2012. He stated that he found lots of churches but he didn’t like the way the pastor talked in front, but then he met [Mr A] from the Church in [City 1] at [location] and [Mr A] invited the applicant to come to their church. The Tribunal has considered that the applicant arrived in Australia in January 2011 and that he started going to church about one year later. While commencement details are not provided, on the basis of the supporting documentation from the co-ordinators of the Church in [City 1], the Tribunal accepts that the applicant has attended the Church in [City 1]. The Tribunal finds it difficult to accept that, given the level of personal commitment to the Family Church that the applicant claims he had, he would not have quickly sought to establish connections with the Local Church in [City 1], information about which is readily available. The Tribunal finds the applicant’s behaviour in this respect is inconsistent with his claim he was an active member of his local Family Church in China.
In considering the applicant’s claim to fear harm from the authorities in China due to his religious beliefs and because he was arrested and detained in connection with those beliefs, the Tribunal has considered that the applicant did not raise any claim to need protection until [November] 2013, almost three years after his arrival in Australia, through all but ten days of which time he remained in Australia illegally. At the hearing, the applicant repeated the previously stated claim that he did not lodge a protection visa because when he sought advice from a lawyer, he was advised that he would not be successful because he did not have any evidence of his claims. When asked about what he thought he would do in relation to his status in Australia, the applicant responded in a hesitant, confused and evasive manner, stating that he didn’t think that much; he just wanted to make some money and have freedom of religion. The Tribunal has considered this response, but as discussed with the applicant at the hearing, the Tribunal is not satisfied that it accounts for the absence of the applicant’s actions to seeking protection. The Tribunal would expect that had the applicant feared harm from the authorities on return to China, he would have applied for protection at the earliest possible time. These considerations cause the Tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection because of his religion and because he was arrested and detained in connection with his religion.

The Tribunal considered the applicant’s claim that in November 2013, when discussing his situation with a friend, who knew of someone in a similar situation to the applicant whose visa was approved, wanted him to have a try to get a visa. In his statement, the applicant stated that he did not apply for protection immediately after his mother was arrested because he thought that as this did not relate to him, he would not be entitled to a protection visa on this basis. The Tribunal has considered the applicant’s reason for delay in seeking protection, but as discussed with the applicant at the hearing, the Tribunal would expect that had the applicant had concerns about his safety because his mother had been arrested, he would have applied for protection at the earliest possible time, rather than await the prompting of a friend. These considerations cause the Tribunal to have further doubt as to the credibility of the applicant’s claims to be in need of protection because of his religion, and because he, and his mother, were arrested for the practice of their faith.
Taking all the evidence above into account, the Tribunal finds that the applicant and his family were not involved in the local family church in China.
The Tribunal has considered the applicant’s claim that his mother told him that she was arrested by the police and held for one week, during which time, the beat, abused and threatened her, until she wrote a statement, paid a penalty. In considering this claim, the Tribunal has taken into account its concerns about the applicant’s general credibility and its finding that the applicant and his family were not involved in the Family church in china. These concerns have led the Tribunal to question the veracity of this claim. The Tribunal has considered the evidence provided in relation to his mother’s claimed arrest, a document titled [title removed]” which states that [the applicant’s mother] was arrested and detained between [in May] 2013 for “suspected involvement in illegal religion activities”, and that she was released having served the full term. This document, which the applicant claimed was original, does not bear any indications that this is an official document, no formal letterhead or signature. In view of the Tribunal concerns about the applicant’s general credibility, the Tribunal gives this document little weight. The Tribunal does not accept that the applicant’s mother was detained in 2013 for her participation in house church activities.
Given all the Tribunal’s concerns about the applicant’s general credibility as set out above, the Tribunal does not accept that the applicant was a member of a local Family Church in [City 2], Shandong, before his departure to Australia. On the same basis, the Tribunal does not accept that the applicant’s family were involved in the local church. The Tribunal does not accept that he entered this faith because his family were devout members of the Family church or that he had any involvement in spreading the gospel with his family and elders. The Tribunal does not accept he was arrested and held overnight because he had participated in a church gathering in 2009 and that subsequently he attended gatherings in secret. The Tribunal does not accept that his mother was arrested and held for one week in 2013.
In consideration of the applicant’s claim to fear harm on return to China due to his religious beliefs, the Tribunal made enquiry about the applicant’s current circumstances. The Tribunal sought to test the applicant’s understanding of his faith. In so doing the Tribunal took into account guidance from various sources that a decision-maker must exercise caution when making a finding on the genuineness of a person’s faith on the basis that the applicant cannot articulate knowledge about the religion he professes. The applicant was able to identify some key teachings of Jesus in general and vague terms, i.e. that people who believe and who are baptised will be saved. The Tribunal asked the applicant whether there were any stories from the Bible that had particular meaning to him. The applicant stated that he knew many stories but that he could not describe them. The applicant described two stories which, while unclear, appeared to reference the parable of the ‘growing seed’, and the parable of the two sons. The applicant explained they symbolise that God provides for people and that the applicant believed God gave him many things. The applicant also described a story about a wedding, which the applicant explained reminded us to be alert and keep God in our mind and pray, referencing, the Tribunal thought, the parable of the groom. The Tribunal formed the view that the applicant has a superficial understanding of a range of stories from the Bible, and with some with prompting he could identify some key themes of the Local Church. The Tribunal considered that the applicant’s understanding of the faith was commensurate with those of a person who had attended services and meetings of the Local Church over recent years.
The applicant stated that he has his own Holy Bible Recovery Version, the Bible of the Witness Li and the Local Church, and he was able to describe the cross references and annotations. The applicant stated in very general terms that he applied his faith in daily life by not valuing the benefits of reputation in the way others do, and he always follows the Bible. His discussion was not clear. However the Tribunal formed the view that the applicant is currently attending the Local Church. This view was supported by the letter from the Church in [City 1], and photographs of his participation in the Church’s [events] in 2014 and 2015, where he undertook some rostered support duties of a [particular] kind. On the basis of this evidence, the Tribunal accepts that the applicant has attended Church in [City 1] activities as a low level participant, attending services and meetings and participating and assisting in various [duties] at [events]. On the evidence before it, the Tribunal finds that the applicant has not engaged in preaching the Bible or proselytising. On the basis of the applicant’s discussion of his faith and the documentary evidence, the Tribunal was satisfied that the applicant has become an adherent in the Local Church in Australia and that he will attend gatherings in China in a similar capacity as he has does in Australia, i.e. as a low level participant..
The Tribunal has found above that the applicant’s claims in respect of his faith in China are not credible. Section 91R(3) of the Act provides that any conduct engaged in by a person in Australia must be disregarded in determining whether he has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. If the acquisition of a religious belief, in this case a faith in the Family/Local Church occurred entirely in Australia then s.91R(3) of the Act is necessarily engaged and the applicant must satisfy the Tribunal that his conduct has been brought about otherwise than for the purpose of strengthening his claim. The onus is on the applicant to satisfy the Tribunal as to the motivation for their conduct.[5]
[5] SZMZA v MIAC (No. 2) [2008] FMCA 1418, Smith FM at [16] – [17]
When considering the application of s.91R(3) of the Act, the full extent of the conduct in Australia must be clearly identified. In this regard, the term ‘engaged in’ has been construed by the courts as meaning ‘carried on’ rather than ‘commenced’.[6] By way of example, a person may commence engaging in religious practice in Australia to support a protection claim but, over time, may become a genuine adherent such that they are carrying on the conduct for different reasons. The longer the gap between the commencement of the relevant conduct (in this case, adherence to the Family/Local Church) and the making of a claim for protection, the more difficult it would be to demonstrate that the conduct was engaged in solely for the purpose of strengthening the claim for protection.[7]
[6] SZGYT v MIAC [2007] FMCA 883, Drive FM at [12]
[7] SZQOJ v MIAC [ 2012] FMCA 298 Driver FM at [45]
In accordance with s.91R(3) of the Act the Tribunal would have disregarded the applicant’s conduct since arriving in Australia for the purpose of assessing his claims to be a refugee but for the fact that, given that two years or more passed since the commencement of his conduct of being involved in the Church in [City 1] activities and his applying for protection, the Tribunal is satisfied that he has now become a genuine adherent to the Family Church. In this case, the passage of time and the applicant’s more recent conduct as an adherent of the Family Church faith which is supported by th evidence of his regular attendance means that s.91R(3) of the Act has no application as the Tribunal is satisfied that the applicant has engaged in the conduct of being a Family Church member for a purpose otherwise than to solely strengthen his refugee claim.
Having found that the applicant is practising in the Church in [City 1], a Local Church, and having accepted that he will practice in his current manner, attending gatherings and meetings and supporting activities on a low level but not preaching or proselytising, on return to China, the Tribunal has considered the applicant’s claim to fear that he will be arrested by the authorities because the Family/Local church worship is illegal in China. During the course of the hearing, the Tribunal observed that in 2015, DFAT advised that the government of China considers several unregistered Christian groups to be “evil cults,” including the Shouters, or Local Church [8], and as such it is banned. In this respect, the Tribunal noted that the applicant had provided some information about oppression of the Local church, the ‘Shouters’. However, as put to the applicant at the hearing, the line between the registered and unregistered churches has grown increasingly blurred in recent years[9] and that Chinese authorities have shown increased tolerance for unofficial religious activity that does not challenge the authority of the state.[10] As put to the applicant at the hearing, the US committee on religious freedom in 2012, stated that the majority of Protestants in China, estimated to be at least 70 million, are affiliated with the house church movement such as the Local Church. While there have been government efforts to suppress activities, some house churches meet openly with membership of several hundred thousand. As discussed with the applicant, the State Administration for Religious Affairs (SARA) has acknowledged that family and friends have the right to meet at home for worship, including prayer and Bible study, without registering with the government.[11] While the Tribunal observed that in ChinaAid’s Annual Report of on Religious and Human Rights Persecution in China [12], it is mentioned that in Shandong there have been a small number of members of the Local Church who have been detained, for such activities as disseminating religious materials, these have been high profile members.
[8] Department of Foreign Affairs and Trade 2015, DFAT Thematic Report: Unregistered religious organisation and other groups in the People’s Republic of China, 3 March, p.10 <CISEC96CF1260>
[9] Madsen, R. ‘Catholic Revival During the Reform Era’, The China Quarterly, vol. 174, 2003 p. 474
[10] US Department of State, ‘Legal/Policy Framework’, International Religious Freedom Report 2010 (July - December) – China, 13 September 2011
[11] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 5, paragraph 2 < OG54B544637
[12] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.13, Table 4 < > CISEC96CF1731
In response the applicant commented there is a large number of followers of the Local Church in Shandong because this was where one of the founders, Witness Lee, was from. He stated that since May 2014, when a woman was killed in a McDonald’s restaurant in Shandong province, there has been a campaign against the Local Church in Shandong. As discussed with the applicant, media reports document that various members of the “Church of the Almighty God”, also known as ‘Eastern Lightening’ sect, whose members were responsible for the beating of a woman to death in a McDonalds restaurant in Shandong province[13], have been detained across China. However, while the Church of the Almighty God and the Local Church evolved from the religious doctrine of Witness Lee[14], they are separate religious denominations and they are not regarded as the same. In response, the applicant stated that, in his home town, police are very strict. The applicant stated that in Shandong province, only the high profile, active members have been arrested but the Family Church is strictly prohibited in China because it is anti-revolutionary and heresy and the authorities do not say that they will arrest only elders not followers. In 2014, when the Macdonald’s incident occurred in Shandong Province, the government re-emphasised the 14 heresies and the “Shouters” (the Local Church) are listed as the first one.
[13] Lyu, Q & Lie, G 2014, ‘China Focus: China outraged by cult violence’ Xinhua, 3 June < <CX321812>; Bai, T 2014, ‘Killing sparks debate over cult influence’, Global Times, 3 June < <CX1B9ECAB11579 >
[14] Williams, B 2014, ‘Where did Eastern Lightning’s Ideas Come From?’, China Source, 3 April < <CX1B9ECAB11595>
The Tribunal has had regard to the applicant’s comments and has also taken into account information in internet articles provided by the applicant about the MacDonald’s incident, the arrest of seven house church Christians in Henan and Christian cults in China. In its consideration, the Tribunal has given greater weight to the independent information cited above in relation to the treatment of people who gather in houses to worship, particularly the ChinaAid information that shows that those at risk of harm in Shandong and high profile house church members. The Tribunal has also had regard to its finding that neither the applicant nor his mother were involved in the Family Church and arrested, but that the applicant has subsequently developed an adherence in the Local Church faith and participated as a low level member, attending gatherings and meetings and participated as a member in the church’s annual conference, but not that he has not engaged in preaching or proselytising. On the evidence before it, the Tribunal is satisfied that the chance the applicant faces any harm by reason of his Family Church religion is remote. Consequently, the Tribunal finds there is not a real chance that if he returns to China, the applicant will face serious harm. The Tribunal finds the applicant does not have a well-founded fear of persecution for a Convention reason.
Furthermore, based on the reasons and findings above, the Tribunal finds find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Amanda Paxton
Member