1509902 (Refugee)

[2017] AATA 3064

1509902 (Refugee) [2017] AATA 3064 (15 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509902

COUNTRY OF REFERENCE:                  China

MEMBER:Louise Nicholls

DATE:15 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2017 at 11:16am

CATCHWORDS

Refugee – Protection Visa – China – Religion – Yi Guan Dao – Fear of harm by state – Non-compliance with visa conditions – Actively avoided detection by department – Significant delay in lodging application – Witness credibility – Limited knowledge of Yi Guan Do – Genuine practitioner or adherent

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 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. The [applicant] is [age] years of age and claims to be a citizen of the People’s Republic of China (China). She arrived in Australia on a student visa [in] March 2008. Her student visa ceased [in] January 2011.

2. The applicant is seeking review of a decision of 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).

3. The applicant applied for a protection visa [in] June 2014. She claims that she fears serious harm in China as a result of her belief in YI Guan Dao (also known as I-Kuan Tao), a cult which has been banned in China since the 1950’s. She claims her parents suffered mistreatment for their Yi Guan Do practice.

4. She provided a copy of the biodata page of her Chinese passport with her application and a typewritten statement setting out her claims in Chinese and English script.

5. The applicant attended an interview with the delegate [in] April 2015 and provided 4 photographs and a copy of a card with Chinese script and an English translation. The translation reads “[a particular temple], [named temple attendants], Follower [the applicant] [April] 2014”.

6. [In] June 2015 the delegate refused to grant the visa as the delegate was not satisfied that the applicant was a genuine Yi Guan Do follower and did not accept her family had been mistreated in China for this reason.

7. There are no certificates restricting disclosure of any material on the Department’s file.

8. This is an application for review of the refusal decision and it was lodged on 22 July 2015. The applicant provided a copy of the delegate’s decision record [June] 2015, a medical report from [an Australian hospital] relating to her pregnancy and copies of Chinese script documents (untranslated).

9. The applicant appeared before the Tribunal on 23 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The applicant gave evidence about her background, her migration status in Australia following her arrival in 2008, her circumstances and her claims for protection. The Tribunal did not find the applicant to be a generally credible witness. Her evidence was vague and generalised; there were also some inconsistencies which she was not able to satisfactorily explain.

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

    CONSIDERATION

12. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection.

13. The relevant law is set out in Attachment A.

    What is the country of reference?

14. The applicant claims she was born in Fujian Province, China and is a citizen of China. She has provided a copy of her Chinese passport which was issued in [2007]. She has consistently claimed she is of Chinese nationality and at the hearing she spoke Mandarin fluently and was familiar with the geography and culture of Fujian Province, China.

15. Taking into account the available evidence the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purposes of s.36(2)(aa).

    Assessment of Claims

16. The applicant’s claims are set out in the statement accompanying her protection visa, further discussed and expanded upon in the delegate’s interview of [April] 2015 and claims made in her oral evidence at the Tribunal hearing held on 23 November 2016.

17. The applicant claims that she and her parents were Yi Guan Do believers in China, that her parents were mistreated by government authorities as a result of their Yi Guan Do practice and that she was interrogated when she was at school. She came to Australia in 2008 and later took up the practice of Yi Guan Do in [Australian City 1] and [Australian City 2] and claims she faces a real chance of serious harm for reasons of religion, and a real risk she will suffer significant harm, if she returns to China.

    Background

18. The applicant is [age] years of age and was born in a village in Fuqing City district, Fujian province.

19. Her parents continue to live in their hometown in Fuqing City district.  Her father is operating a [business] and her mother is not working.  Her father used to operate [a different business].  She has [various siblings] living in her hometown. 

20. She attended primary and junior high school (middle school) in the village and [part] of senior high school. When she was [a particular] age she applied for an Australian student visa which was granted [in] February 2008.

21. The applicant formed a relationship with a [national of Country 1] in Australia in 2014 and they are currently living together in a de facto relationship. She gave birth to the child of the relationship [in a particular year]. Her boyfriend is of ethnic Chinese background from [Country 1]. He applied for a protection visa on the basis that he was being bullied by [people of a certain religion] in [Country 1].

22. After the applicant first arrived in Australia she lived in [a particular suburb in Australian City 1] and found work in a [business]. Then after 6 months she moved to work [at Business 1] near [Australian City 3] for 3 months. She moved back to [Australian City 1] for a month, and then returned to [Australian City 3] for another 3 months. She then moved to work in a [business] in [Australian City 2] before returning to live in [Australian City 1] in 2014. She claims that she is not currently working and is looking after her [child]. Her boyfriend is working as a [occupation]. The applicant has opened a [bank account], has a mobile telephone and has a Learner’s Permit to drive.

    Were the applicant and her parents Yi Guan Do practitioners in China?

23. In her statement the applicant claimed that she grew up in the countryside and all her family members were Yi Guan Do (I Kuan Tao) disciples. She claimed she began to pursue Yi Guan Do when she was [young]. The family had an altar in the house, her parents were pious followers and they invited masters to the home to help people establish altars.

24. At the Tribunal hearing the applicant told the Tribunal that her father had been in [Country 2] and got into trouble and people from Yi Guan Do saved his life so the whole family started believing in this religion.

25. When asked how the family practised their beliefs she stated that they chanted the name of Buddha, prayed in front of Buddha and burned things out of respect for Buddha. They also helped others come and join the religion.

26. The Tribunal put it to the applicant that Buddhism was commonly practised in China and that practising Buddhism would not cause a problem in China as it was a recognised religion. She stated that their beliefs were different than Buddhism. She stated that the God in Yi Guan Do is different and the ceremony for entering the religion was different. The applicant agreed that Buddhist home altars were common in China but that their altar was a prayer room for Yi Guan Do.

27. When asked to explain how the family practised Yi Guan Do when she was a child she stated the praying ceremony is confidential and cannot be disclosed to others.

28. She stated that her parents converted many people in their hometown when she was small. The Tribunal put it to her that the country information indicates that practice of Yi Guan Do was banned in China in the 1950’s and subject to heavy suppression from that time on. It almost appeared as if the practice had ceased to exist in mainland China from that time on. The Tribunal put it to her that her evidence that her parents were actively converting individuals in the community is not consistent with this country information. She claimed that they did their conversions in secret.

29. The Tribunal asked the applicant to describe her actual experiences and her observations of the family’s practice in China. She stated they participated in gatherings and when she was in high school she came home to attend gatherings.

30. The applicant stated she had been initiated when she was [a particular age]; however, the Tribunal put it to her that she would have been too young to be initiated at that age. She did not respond to this proposition.

31. The Tribunal does not accept that the applicant and her immediate family members were Yi Guan Do believers. The applicant was not able to give a plausible description of her experiences and her observations of the family’s Yi Guan Do practice. Her evidence was vague and she could not give direct first hand evidence of matters which she claimed she had experienced from a very young age.

32. When asked to describe the practices she stated that the praying rituals were confidential and not disclosed to outsiders. However, the Tribunal does not accept this evidence. There have been a number of books written on the practices and rituals of Yi Guan Do and the practice is common in Taiwan and Hong Kong. There are Yi Guan Do associations and organisations in a number of countries with relevant information set out in their websites. Whilst there are some aspects which are said to be only for initiates, overall there is a large amount of public information on the practice and the Tribunal considers the applicant’s inability to describe the family’s practice in any detail indicates that she and her family members were not Yi Guan Do practitioners in China.

    Claims of her family’s mistreatment in China resulting from their Yi Guan Do practice.

33. The applicant claimed that she and her parents suffered mistreatment for reasons of their Yi Guan Do practice in China. The Tribunal does not accept the applicant and her family were Yi Guan Do practitioners in China and does not accept they were mistreated for this reason.

34. In her written statement the applicant claimed that in [a particular year] of [school] local officials discovered the existence of their home altar and ordered the family to demolish it. Security guards came to the house several times and closed the altar by sealing its door.

35. The applicant took some Tao books to a classmate’s home. They were getting ready for the rites when they were reported to the police. The police arrested everyone present and the applicant was summoned to be interrogated for a whole day. She was then suspended from school for a few days. Others were fined and imprisoned for a few days.

36. Shortly after the applicant came to Australia to study in 2008 the applicant’s parents were arrested for practising Yi Guan Do and their house [altar] was forcibly shut down. After her father was released from detention the [business] in which her parents were involved was declining due to official harassment. After the business declined she had to leave her studies due to her parents’ financial problems. However, her parents did not want her to return due to their absence from their hometown and also because it was unsafe for the applicant to return.

37. Her parents returned to their hometown in 2009 and her father set up [another business] and the business was doing well so her parents set up a new altar which could not be made public. Her father also invested his money in setting up new altars in other places. He would invite foreign priests to give sermons in these places. At the end of 2013 two [priests from Country 2] were discovered by local government officials and expelled. Her parents’ altar was put in crisis and they encouraged the applicant to stay in Australia to pursue Yi Guan Do in Australia.

38. In the interview with the delegate the applicant stated that her father had been arrested [after] her arrival in Australia in 2008. He was told that if he was caught again it would not be a small fine or a short period of detention. She also told the delegate that neither her parents or siblings have been sentenced but her parents were warned.

39. At the Tribunal hearing the applicant told the Tribunal that she feared returning to China because she does not have the freedom to practice her religious beliefs and was afraid of being arrested. She stated her parents were arrested and were warned they would be put into prison if they continued to practice Yi Guan Do.

40. When asked to further explain she stated that at the end of 2013 her parents invited two people from [Country 2] to their hometown.  When they were praying in 2014 her parents were arrested and when they were released they were warned they would be put in prison if caught again. She stated that this is all her parents told her about the arrest and agreed they did not tell her much.

41. The Tribunal asked the applicant if anything had happened to her in China. She stated that in her [in a particular year of school] when she was about [age] years old she was arrested.

42. She was attending a Yi Guan Do gathering with her classmates and their parents and some people rushed in whilst she was holding a Yi Guan Do book. She stated that some security staff responsible for safety in the village arrested her but the police were also involved. As she was under the age of 18 years she was just interrogated but the adults, including her parents, were detained and fined.

43. The Tribunal put it to her that she had given evidence earlier in the hearing that her parents had only been arrested in 2014. She stated that before 2014 they had been arrested several times.

44. The Tribunal also put it to her that in her written statement she stated that shortly after she left China in 2008 her parents arrested and their [altar] shut down by local officials. After her father was released his [business] started declining. She did not mention this incident when she was asked earlier in the hearing about whether her parents had suffered harm in China. The applicant stated that they had been arrested many times and she was confused and mixed up the arrests.

45. As the Tribunal does not accept that the applicant’s parents and family members were Yi Guan Do believers it does not accept they have suffered mistreatment by Chinese authorities for this reason.

46. In addition the evidence given by the applicant regarding the claimed mistreatment of her parents has significant inconsistencies and deficiencies as set out below which the applicant was not able to satisfactorily explain. The Tribunal considers that the inconsistencies and deficiencies supports the Tribunal’s finding that the applicants’ parents and family members were not Yi Guan Do followers in China.

47. In the written statement made by the applicant, she claimed when she was [age] years she was attending a gathering which was reported to police and security officials. As result she was interrogated by local officials. She claimed that other persons were fined and arrested but did not specifically mention her parents being arrested or detained. However, in her oral evidence she claimed that her parents were detained during this incident. The arrest of her parents would have been a significant issue for the applicant at the time and the Tribunal does not accept she would not have mentioned this in her written statement if it had, in fact, occurred.

48. In her statement she claimed that her parents were arrested and detained in 2008, their [altar] closed and that they left their hometown until they returned and resumed their Yi Guan Do practice in 2009. The applicant did not mention the arrest and detention at the hearing when questioned about any mistreatment suffered by her parents. It was only when it was put to her at the end of the hearing that she had omitted to mention this incident that she stated that they had been arrested and detained many times and her omission arose from her confusion.

49. When asked at hearing about the mistreatment of her parents she claimed they had been arrested [either in 2013 or 2014] after they had arranged for two [followers from Country 2] to come to the altar in their hometown. When questioned for some further details about this incident she stated her parents had not told her much about this incident.

50. In her written statement she stated that money earned from her father’s [business] was used to establish a number of altars, that her parents organised foreign priests to come and speak at the altars and that at the end of 2013 two [priests from Country 2] coming to speak were discovered by officials and expelled. She stated the family’s altar was in crisis. However, the applicant made no mention in her statement which was lodged in June 2014 of the arrest and detention of her parents. On her evidence, this had allegedly occurred before she lodged her application for protection. When asked about this at hearing she stated she omitted to include this claim in her written statement with no explanation for the omission. The Tribunal does not accept that the claimed arrest took place in 2013/2014. If it had the Tribunal would have expected the applicant to include it in her written statement as it was a significant event in the overall context of her claims.

    Has the applicant practised Yi Guan Do in Australia?

51. The Tribunal has considered the applicant’s claims against the background of her migration history in Australia. The applicant arrived in Australia in 2008 and applied for protection in June 2014. Given her claims that she and her parents practised Yi Guan Do and her parents were mistreated in China prior to and shortly after her departure in 2008 her migration history is important as her application was delayed for at least 6 years after her arrival.

52. The applicant gave evidence that she left China at the age of [age] years with the intention of studying in Australia. However, at the Tribunal hearing she gave evidence that she did not complete the [course] in which she was first enrolled in 2008 and during the first 6 months she lived in [Australian City 1] she obtained work. She then went to work [at Business 1] near [Australian City 3] for two periods of time, and then moved to [Australian City 2] where she worked in a [business] for about 3 years before returning to [Australian City 1] in 2014 and forming a relationship with her current boyfriend who is a [national of Country 1]. At the hearing the applicant stated she wanted to remain in Australia to study, however, the Tribunal considers that the applicant made no attempt to enrol in another course before the expiration of her student visa, she remained living and working illegally in the community until 2014 and actively avoided detection by Departmental officers because she wanted to continue working in Australia.

53. She claimed that when she first arrived and enrolled in her [course] she did not have enough money to continue but thought she could earn some money and go back to finish her studies. However, after her 3 months in [Australian City 3] she returned to [Australian City 1] and the college told her that she could not continue in the course but would have to re-enrol and pay further fees. She claimed she was a victim of fraud. Her guardian would not assist her because she still owed him money.

1. She explained that when she arrived she had a student guardian who charged her a [fee] for his services. She initially paid him a [portion of the fee] and when she first returned to [Australian City 1] after spending 3 months  [working at Business 1] he asked her for the balance of the fee. She did not live with or have any assistance from the guardian and could not explain what the fee covered. She stated that other students had to pay similar fees to their guardians.

2. With respect to her claims that she practised Yi Guan Do in Australia she stated in her written statement that in 2008 she went to attend a house altar established by her employer and got a certificate for practising Tao then but could not find it.

3. She then stated that during her years of wandering she attended another house altar established by the applicant and her countrymen. Her fellow believers went back to China so the altar dissolved.

4. After she returned to [Australian City 1] she could not find the original altar she had attended in [Australian City 1] but could not find it. She then went to an altar situated in [Suburb 1] established by some [nationals of Country 2] and she applied for a new certificate and attended gatherings at that temple.

5. At the Tribunal hearing she claimed that when she first arrived in [Australian City 1] her employer introduced her to a temple in [Suburb 2]. She claimed that her employer ran a [business] and was a Yi Guan Do follower. She did not know the location of the temple and could not describe the building. She claimed she just got in her employer’s car and he drove her there. She claimed that a large group attended and she attended every [particular day of the week]. During the session they had a [meal] together, then prayed and they lit a small candle in a bowl. Other believers would give lectures and spread their knowledge and at the end of the gathering they would kneel down and knock their heads on the ground.

6. She did not attend a temple in [Australian City 3] as she [lived close to Business 1] and she was not aware of any local temples. Further she was concerned she would be picked up by the Immigration Department if she moved away from [Business 1].

7. When she moved to [a suburb in Australian City 2] she found a temple but it was not as big the temple in [Australian City 1]. The temple was located in a house in which she lived for some time. The house had a home altar; there were statues of famous Buddhas and three deities in the living room. The Tribunal put it to her that it sounded like a Buddhist home altar[1]. She stated it was similar but they prayed to different gods.

   [1] The Foundation of Buddhist Thought states that, traditionally, setting up a shrine in the home has been widely practised throughout the Buddhist world. It also notes that it is common to place a photo or statue of the Buddha as well as photos or statues of the masters, other deities and offerings on the shrine. The Foundation of Buddhist Thought, “Setting up a shrine” >

   The applicant stated many of the [Australian City 2] followers left the temple and she could not find another temple so she returned to live in [Australian City 1] in 2014.

8. The applicant stated she has been practising in [Australian City 1] in a temple in [Suburb 1] since April 2014. She gave the address and described the house in which the temple was located and gave a physical description of the temple and its name.

9. She got to know a [believer from Country 2] and she found out about the temple from him. She claimed that she attends gatherings every [particular day of the week] and [particular days] of the lunar calendar month.  Her friend gave her contact information and she went to the temple and was told to resume her practice.

10. When asked about initiation into Yi Guan Do, the applicant stated that an initiate had to make an oath to keep information about the religion secret and to burn candles to show respect. Country information indicates that new Members go through a form of training before they are initiated. The Tribunal put it to the applicant that it appeared that she may have been a new member of the [Suburb 1] temple going through a learning process. She stated that she had already been initiated when she was [young] but the Tribunal put it to her that she would have been too young to be formally initiated.

11. The Tribunal asked the applicant to describe some of the rituals which took place in the temple and to explain the nature and meaning of her religious beliefs. Her response indicated she had some knowledge of Yi Guan Do; however, her descriptions and explanations were incomplete and had a rambling nature which indicated that the applicant had made an attempt to acquire knowledge of Yi Guan Do but did not have a coherent understanding of the belief system on which Yi Guan Do is based.

12. The Tribunal finds her demonstrated knowledge of Yi Guan Do is consistent with an attempt by the applicant to acquire knowledge about Yi Guan Do shortly before she applied for a protection visa in 2014. The Tribunal finds her level of knowledge is not consistent with a lifetime of observation and practice of Yi Guan Do as claimed by the applicant. 

13. The documents provided to the Department include a copy of a card provided by the temple in [Suburb 1] and which is dated [in] April 2014 and refers to the name of the temple, the priest, the introducer and sponsor and the applicant’s name as follower. There is no reference to Yi Guan Do in the card provided by the applicant. She did not provide any other evidence from persons involved in the temple or any other credible evidence supporting her claims of regular attendance at the [Suburb 1] temple.

14. The applicant claims she had cards from her previous temples but has lost them. The Tribunal does not accept this evidence and considers that the applicant has not attended Yi Guan Do temples in [Suburb 2] or [Australian City 2] prior to her return to [Australian City 1] in 2014 or that she has received any documents or card as evidence of her membership.

15. The applicant provided a number of photographs; these showed the inside of a temple with an altar, a woman in long robes in front of an altar, a photograph of applicant in the temple and a photograph of a group of people sitting together on chairs. The applicant also provided the Tribunal with receipts for donations to the [Suburb 1] temple and it accepts she may have attended the [Suburb 1] temple and given the temple money as claimed in 2014 and 2015.

16. The Tribunal asked the applicant why she had delayed making an application for protection until June 2014 given that she had arrived in Australia in 2008. It also put it to her that she started attending a temple in [Suburb 1] in April 2014 and lodged an application shortly after she attended the temple. She claimed she only heard about protection visas when she went to the temple in [Suburb 1].

17. The Tribunal put it to her that she had given evidence that she read Chinese newspapers and that there was regular coverage of protection visas, refugees and asylum issues. She stated she only used newspapers to look for jobs and houses. The Tribunal put it to her that in talking to friends and reading media coverage it was difficult to accept she had not been aware of protection visas. She stated she had not heard about it. The Tribunal put it to her that she had been able to manage life in Australia quite competently and had previously engaged an agent to assist with her earlier visa. If she was concerned about her situation she could have sought advice. She stated that she did not communicate with her agent.

18. The Tribunal considers if the applicant had a genuine fear of returning to China she would have sought advice on her options. She told the Tribunal that she had been previously advised to marry someone with permanent residence but did not want to take advantage of other persons and she felt she was too young to consider marriage.

19. The applicant gave evidence that she has formed a relationship with a [national of Country 1] of Chinese ethnic background and that they have a child born in [birth date]. She told the Tribunal that her boyfriend had introduced her to the [national of Country 1] who had “unofficially” assisted her with her protection visa application. She also gave evidence that her boyfriend was working as a [occupation] and he had applied for a protection visa on the basis he feared returning to [Country 1] because he would be bullied by [religious] gangs.

20. The applicant admitted she had tried to avoid detection by the Department after she first arrived in Australia when she was no longer studying and also that she has a strong desire to stay in Australia.

21. Taking all of the above into account the Tribunal does not accept that the applicant has a genuine interest in Yi Guan Do or has a genuine belief in its principles. It considers that the delay in her application for protection and the circumstances of her application, her history of unauthorised employment and residence in Australia, her incomplete knowledge of the principles and practices of Yi Guan Do, her inability to give a detailed description of her practice, the inconsistencies and deficiencies in evidence regarding her practice in China and Australia and her strong desire to remain in Australia leads the Tribunal to the conclusion that she is not a genuine Yi Guan Do believer.

22. The Tribunal accepts the applicant first attended a temple in [Suburb 1] in 2014 and may have attended from time to time in 2014 and 2015. Other than for the applicant’s evidence, there is no other supporting evidence that the temple is a Yi Guan Do temple. There is no other evidence that its adherents are Yi Guan Do followers and that the applicant has been initiated into the religion. The applicant stated that the [Suburb 1] temple is run by Yi Guan Do followers from [Country 2] and the Tribunal accepts the country information that Yi Guan Do is popular in [Country 2] and has been legal there since [a particular year].

23. Whilst doubtful, the Tribunal has considered the claims for protection on the basis that the [Suburb 1] temple may possibly be a Yi Guan Do temple. The Tribunal accepts that the applicant has attended the temple on occasions but does not accept she is a genuine Yi Guan Do follower for the reasons set out above.

    Does the applicant meet the refugee criterion?

24. Taking into account the findings set out above, the Tribunal does not accept there is a real chance that the applicant will face harm for reasons of religion or imputed political opinion if she returns to China now or in the foreseeable future.

25. For reasons set out above the Tribunal does not accept that the applicant is a Yi Guan Do practitioner. It does not accept that she and her parents were Yi Guan Do practitioners in China or that she and her parents have been mistreated in China for this reason.

26. The Tribunal accepts that the applicant has attended a temple in [Suburb 1] from time to time in 2014 and 2015. It accepts the temple might possibly be a Yi Guan Do temple. It does not accept that the applicant was initiated into Yi Guan Do when she was [young] or at any time thereafter. The Tribunal does not consider that the possession of a card purporting to show she has been introduced and sponsored into the temple in 2014 outweighs other evidence suggesting that she is not a genuine Yi Guan Do follower. It shows that she has made contact with, and attended the temple, in 2014 and 2015.

27. Country information on Yi Guan Do indicates that roughly translated, Yi Guan Dao means unity way or the way of pervading unity and it claims to unite “‘the world’s five great religions’: Buddhism, Taoism, Confucianism, Islam, and Christianity”.[2]  

    [2] Bosco, J. 1994, ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY, p.424

28. The Yi Guan Dao sect, also referred to as Tian Dao, was founded in Shandong province in the 1920s by Zhang Tianran (Zhang Guangbi, 1889–1947)[3]. The sect spread widely throughout Japanese‑occupied areas within China during World War II. The religion was outlawed in China in 1951 resulting in members being arrested or driven underground. With the death of Zhang in 1947, many of the remaining followers found their own way to Hong Kong and Taiwan, escaping communism in China. They established their own group, mainly following their ancestral temple’s name from China, spreading the teachings of Yi Guan Dao. Yi Guan Dao remains illegal in China today but since the 1980s it has gradually been re-establishing itself as an underground movement supported by missionaries particularly from Taiwan.

    [3] Clart, P. 2005, ‘Yiguan Dao’, in Encyclopaedia of Contemporary Chinese Culture ed E.L. Davis, Routledge, London, p.699 (\\NTSSYD\REFER\Research\INTERNET\EASTASIA\chn32439.web.pdf

29. The practice of Yi Guan Do is popular in [Country 2] where it has been legal since [a particular year]. Believers are generally organised into temple cells of 8-10 followers.

30. In May 2011 the Department of Foreign Affairs and Trade provided the following comment on the attitude of the Chinese authorities to people who practice Yiguandao:

    R.3. Yiguan Dao was banned in mainland China in the 1950s and there has been no information to suggest that this ban had been lifted, we would consider that Chinese authorities would regard Yiguan Dao followers along the same lines as other banned religious sects.

    Post notes that as authorities' treatment of unauthorised religious activities differ depending on the province and city, it is difficult to assess how Chinese authorities would deal with individual cases of this largely unknown religious sect. Were authorities to come across Yiguan Dao followers, they would probably seek guidance from higher authorities on handling the issue. We note that Yiguan Dao's origins as a secret religion with an organised structure would raise the suspicion of authorities if Yiguan Dao followers were known to exist in mainland China.[4]

    [4] Australia: Department of Foreign Affairs and Trade 2011, RRT Country Information Request - CHN38597, 11 May, CIR No. 13/26, R.3., CX310527

31. A Minority Rights Group International report from 2001 refers to the arrest of Yiguandao practitioners during the 1980s:

    In the 1980s the police were reporting the arrest of members of the Yiguandao, a proscribed organization which was supposed to have been wiped out during the 1950s.[5]

    [5] Dillon, M 2001, Religious Minorities and China , Minority Rights Group International ,1 November, page 11, second paragraph, CIS14655

32. There are no reports of arrests or detention of Yi Guan Dao practitioners by the Chinese authorities since 1995. The most recent reported instances of Yi Guan Dao being adversely treated in China were the arrests of Yi Guan Dao believers and destruction of Yi Guan Dao temples in Fujian in 1993 and 1994. The Chinese Government has the authority to crackdown on any unauthorised religious activities and according to one expert (Professor Philip Clart, Department of Religious Studies, University of Missouri-Columbia) writing in 2007, authorities do “crack down” on Yi Guan Dao groups when they are discovered.[6]

    [6] Clart, P. 2007, Email to Research & Information ‘Re: Yiguan Dao in China’, 13 October (\\NTSSYD\REFER\Research\LETTERS\REPLIES\chn32439.lr.doc)

33. Although somewhat dated, an expert advising the Immigration and Refugee Board of Canada in 2001 gave this opinion on the group’s status in Guangdong and Fujian:

    If any believers do exist in Guangdong and Fujian, they are likely to have learned the faith secretly and relatively recently from Taiwanese businessmen or tourists, who have been known to proselytize in the PRC.  Given the intensity of pressure against the sect, I would be rather surprised to see any sort of Yiguandao remaining in Fujian or Guandong at all, except, as mentioned, in the context of relatively recent missionization from Taiwan. …  I have seen Chinese government reports (Fandong huidaomen jieshao, Qunzhong chubanshe, 1985) that mention fears of a revival of Yiguandao in remote inland provinces, but nothing specifically relating to Fujian or Guangdong.[7]

    [7] Immigration and Refugee Board of Canada 2001, CHN36541.E 'China: Reports of arrests and detention of Tian Dao (also Yiguan Dao, various spellings) believers in the provinces of Fujian and Guangdong (2000)', 6 April

34. Country information indicates that there is a diverse range of practices and many divisions in Yi Guan Do but there are some common unifying elements relating to temples, initiation rites, ceremonies, rituals and prayers[8].

    [8] Bosco, J 1994, ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in M Rubenstein (ed) The Other Taiwan: 1945 to the present, East Gate, NY, p.425

35. The UK Home Office noted in its report on Non-Christian religious groups in China in August 2016[9] that members of unregistered religious communities who may be at risk are those who choose to worship in unregistered places of worship in China or conduct themselves in a way to attract the local authorities attention to them for their political, social or cultural views. The Tribunal considers that the applicant will not seek to practice Yi Guan Do if she returns to China because it does not accept that she is a genuine Yi Guan Do follower.

    [9] Country information on non-Christian religious groups, China, August 2016 >

    Further the Tribunal does not accept that occasional attendance at the [Suburb 1] temple would put the applicant at any risk of harm if she returned to China. There is no country information suggesting mere attendance at a temple in [Australian City 1], of whatever affiliation, would put an individual at risk on return to China. There is country information as set out earlier in this decision that indicates that the practice of Yi Guan Do is banned in China and if the applicant returned to China and attempted to practice Yi Guan Do this might put her at some risk. However, as the Tribunal does not accept the applicant is a Yi Guan Do adherent or has any genuine interest in the practice it does not accept she faces harm for such a reason.

36. The Tribunal accepts that the applicant and her [national of Country 1] boyfriend have recently had a child in Australia. She told the Tribunal she had no claims relating to her child or the birth of her child. She stated if she could not remain in Australia she would prefer to return to [Country 1] rather than China, obviously referring to the possibility of the couple and their child returning to her boyfriend’s country of origin. In these circumstances the Tribunal does not consider that the fact of the child’s birth raises any claims for consideration by the Tribunal.

37. In view of these findings of fact, the Tribunal is not satisfied that the applicant has a well-founded fear of Convention related persecution for any of the reasons she has claimed. Accordingly, the Tribunal finds there is no real chance that she will face serious harm for one or more of the reasons set out in the Refugees Convention or for any other reason if she returns to China now or in the reasonably foreseeable future. The applicant does not satisfy the criteria in s.36(2)(a).

    Does the applicant meet the complementary protection criterion?

38. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

39. The Tribunal has found that neither the applicant nor other family members are Yi Guan Do practitioners or adherents for reasons set out above.

40. The evidence indicates that the applicant left China legally on a student visa in 2007 and travelled on her own Chinese passport. She has a child of the relationship with her [national of Country 1] boyfriend but she has made no claims in relation to the child or the child’s birth and the Tribunal does not consider she will suffer significant harm for this reason if she returns to China.

1. Having considered the applicant's claims, the Tribunal finds that the applicant does not meet the criteria for complementary protection criteria. Taking into account the Tribunal’s findings of fact and the available country information, it is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to China now or in the reasonably foreseeable future.

2. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to China now or in the reasonably foreseeable future.

3. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that she will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. The applicant does not satisfy the criterion in s.36(2)(aa).

   Conclusion

4. 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).

100. 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).

101. 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

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

Louise Nicholls
Senior Member  15 March 2017

ATTACHMENT A

RELEVANT LAW

103. 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

104. 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).

105.   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.

106. 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.

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

108. 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.

109.   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.

110.   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.

111.   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.

112.   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.

113.   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

114. 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’).

115. ‘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.

116. 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

117. 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.