1508639 (Refugee)

[2017] AATA 465

1508639 (Refugee) [2017] AATA 465 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508639

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:1 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2017 at 3:41pm.

CATCHWORDS
Refugee – Protection visa – China – Particular social group – Compensation for land resumption – Religion – Christian – Protests – Proselytising – Coercive and punitive action

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who are citizens of China, applied for the visas [in] July 2014 and the delegate refused to grant the visas [in] June 2015.

3. [Name] (the applicant) appeared before the Tribunal on 5 January 2017 and 15 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Pastor A] and four members of [Church 1].

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

   THE RELEVANT LAW

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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.

    BACKGROUND

11. The applicant is [an age] year old married woman from [her home] Village, [in Town 1], Pingtan County in Fujian Province in China. She married a Chinese national on [in] 2012. Her husband also resides in Australia. He applied unsuccessfully for protection in 2014. He is not included in the application. They have [an age] year old daughter.

12. The applicant parents and [sibling] (born [in year]) remain in China.

13. The applicant completed [number] years schooling at [her school] in July 20007. From August 2007 until June 2014 she studied English, high school and vocational courses in Australia.

14. The applicant arrived in Australia [in] August 2007. She held student visas until [July] 2014. On travelled to China [in] January 2011and returned to Australia [in] March 2011 and applied for protection [in] July 2014.

    CLAIMS AND EVIDENCE

15. In essence the applicant claims that she cannot return to China because her father was imprisoned in December 2013 as a result of his involvement in protests against confiscation of land which he and other villagers owned which was required to provide accommodation for military personal from a local base. She claimed that her mother and [sibling] had faced harassment and other problems as a result of this and claimed that she would also be at risk of serious harm because of her father’s detention if she returned to China.

16. I found the applicant’s evidence regarding her father’s detention and the problems faced by her family in China confused and unconvincing. However, as set out below, I accept that she had a well-founded fear of persecution as a result of her conversion to Christianity and it is therefore not necessary to consider these claims any further.

17. The applicant claims that she was introduced to [Church 1] by a friend in 2012 and has attended the church regularly since that time. She claims that she was baptised in [January] 2013 and that she has been deeply involved in church activities including leading prayer meetings, serving as assistant to the Pastor of the Church and proselytizing to members of the Chinese community outside the congregation, for example by visiting people in hospital and going regularly to sites where people gather such as the community bus to [a landmark] and online through platforms such as [app name]. She claims that she now has a deep commitment to her faith and that she would seek to follow her religion outside the state sanctioned system in China and that she would continue to proselytize as she believes this to be her religious duty.

18. In support of these claims the applicant has provided a copy of her baptism certificate, photographs of her participation in religious gatherings and letters from the Pastor and other members of the congregation of [Church 1]. [Pastor A] and four members of the applicant’s church attended the hearing on 15 January 2017. [Pastor A] spoke convincingly about his conviction that the applicant had a deep commitment to her faith. He explained that she had attended church regularly since about 2012 and said that she now plays the central role in church activities extends well beyond attending church services. The other members of the applicant’s church confirmed that she was a committed member to the church and played an important role in many church activities.

19. In light of the evidence from [Pastor A] and other members I accept that the applicant has attended [Church 1] since 2012, that she has been baptised as a Christian, that she plays an important role in Church activities and that she had been involved in proselytizing. I also accept that she would continue to practice her faith and proselytize outside the state sanction system if she returned to China.

20. In reaching this conclusion I have noted that the applicant appears to have concocted claims regarding problems faced by her family in China and considered the possibility that she converted to Christianity in order to enhance her chances of obtaining protection in Australia. However, she did not seek protection until some 18 months after she was baptised at [Church 1]. In these circumstances I am satisfied that she is a genuine convert and did not take this step to enhance her chances of seeking protection in Australia.

21. The question which remains to be determined is whether the applicant faces a real chance of suffering serious harm on return to China because of her Christian faith.

22. According to advice from DFAT[1], unregistered house churches can be vulnerable to coercive and punitive action by authorities and are denied legal protection under Chinese law. Nevertheless they are found across China and gatherings of 30 to 40 people are generally tolerated, although smaller groups can attracted also negative attention, for example if they are perceived to have links with foreign influences or they are critical of the government or advocate for issues considered political or sensitive or they are operating in provinces or local settings where corruption is prevalent, and the potential for extortion and running afoul of local authorities is potentially higher.

    [1] DFAT Thematic Report  Unregistered religious organisations & other groups in the People’s Republic of China  3 March 2015

23. Also according to DFAT, proselytising is permitted in registered places of worship and in private settings but not in public or by foreigners. Distributing unapproved literature and associating with unregistered religious groups is also not permitted. 

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

25. In a report which focussed on the situation in Fujian Province[2],  DFAT advised while members of unregistered churches can often practice in small groups in the province it is their understanding that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction, although those affected are more likely to be leaders than individual worshippers.

    [2]  DFAT THEMATIC REPORT FUJIAN PROVINCE, PEOPLE’S REPUBLIC OF CHINA  16 December 2016

26. Reports on the situation in Fujian from other sources vary. A 2015 weblog entry by the BBC News Hong Kong correspondent states that restrictions on house churches in Fujian were more relaxed compared to other provinces.[3] While the 2015 annual report by US Christian activist organisation, China Aid, concludes that ‘persecution of China’s rural house churches’ escalated in 2015 compared to 2014 and specifically cites Fujian as one of the most affected provinces.[4]

    [3] 'China cracks down on Hong Kong evangelists', Liu, J, BBC News, 22 July 2015, CXBD6A0DE10585 

    [4] China Aid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, China Aid Association, 1 March 2016, CIS38A80122270, p.14

27. Recent reports on the situation in China indicate that there has been a tightening of control in a range of areas including religion as President Xi Jinping seeks to consolidate his power. New regulations introduced in late 2016 have tightened control over religious practice and strengthen the government’s longstanding requirement that all religious groups register with the government. Reports indicate that the government has been increasingly cracking down on groups deemed to be cults (although there is no evidence that [Church 1] is affiliated with any of the groups). Activist group China Aid describe the new regulations as ‘punishing house church meetings by imprisoning or heavily fining Christians involved. Others note that it is too early to assess the impact of these regulations in areas which have traditionally been tolerant of house churches which operate outside the strict letter of the law. [5]

    [5] CXC904066397: "China tightens party loyalty requirements in sensitive year", Reuters, 17 January 2017; "China Seeks Tighter Grip in Wake of a Religious Revival" 2016, New York Times, 7 October; CXC904066784: "China to crack down further on 'cult' activities", Reuters, 25 January 2017,

28. In the circumstances described above, I believe that while it may be possible for the applicant to practice her religion in Fujian outside the state sanctioned system if she returns to China, the possibility that she will be imprisoned or face other serious harm within the reasonably foreseeable future cannot be dismissed as remote or insubstantial. In reaching this conclusion I have given particular weigh to the fact that according to her evidence and the evidence of other members of her church, she plays what appears to be a leading role in church activities and the fact that she proselytises and is adamant that she would continue to do so if she returned to China. I am also mindful of the evidence regarding what appears to be a tightening of control in regard to religion and more generally in China.

29. After considering all of the relevant evidence I find that the applicant faces a real chance of experiencing serious harm amounting to persecution for reasons of religion if she returns to China.

30. No specific claims have been made in relation to the applicant’s daughter. While she appears to have been baptised she is only [age] years old and I am unaware of any evidence which suggests that there is a real chance that she would suffer serious or significant harm because of this if she returned to China.

    CONCLUDING PARAGRAPHS

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

32. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that she is the first applicant’s daughter and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

33. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Roslyn Smidt
    Member