1510019 (Refugee)

[2017] AATA 197

1510019 (Refugee) [2017] AATA 197 (20 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510019

COUNTRY OF REFERENCE:                 China

MEMBER:Peter Vlahos

DATE:20 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 January 2017 at 10:47am

CATCHWORDS
Refugee – Protection visa – China – Religion – Local Family Church – Systemic discrimination against Christians – Freedom of religious worship – Relocation not an option – Lack of state protection

LEGISLATION
Migration Act 1958, s 36 (2)(a), (aa), (b), or (c), 65, 91R(1)(b), 499
Migration Regulations 1994

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of China, applied for the visa on 2 April 2014 and the delegate refused to grant the visa [in] July 2015.

3. The applicant appeared before the Tribunal [in] 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether Australia has protection obligations in respect of the applicant.

10. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

    Country of nationality and identity

11. Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection, (the Department) the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant, is a national of People’s Republic of China (PRC) and has assessed claims against that country in relation to ss.36 (2) (a) and 36 (2) (aa).

12. On the basis of the above evidence, the Tribunal further accepts the applicant’s identity as claimed.

    Background

13. The applicant is a [age] old Chinese national from Tianjin, China. He is married with one [child]. Both his wife and [child] are currently living in China.

14. Department records indicate that the applicant was granted [visa subclass] Temporary Business Entry Short Stay visa [in] July 2010.

15. The applicant arrived in Australia [in] August 2010.

16. The applicant became an un-lawful citizen [in]October 2010.

17. The applicant lodged the current application for Protection visa with the Department of Immigration and Border Protection [in] April 2014.

18. The Department rejected the applicant’s Application for Protection visa [in] July 2015 and the applicant appealed to the Administrative Appeals Tribunal (the Tribunal) [in] July 2015.

    The Applicant’s Claims

19. The applicant’s claims before the Tribunal can be summarised as follows:

    §After he married in 1995, his wife took him to attend their Local Church gathering. He was baptized in 1996 and attended church meetings two or three times a week.

    §The church that his wife practiced was not registered with the Chinese authorities and is not recognised.

    §The Chinese authorities considered the underground Local church as “…shouter” and a “…evil cult…” It is his strong belief that the official church in China is controlled by the Chinese Communist Party (CCP) and [it] does not follow the principles of the Holy Bible.

    §Local Family Church is banned in China and their members have been persecuted by the Chinese government.

    §[In] May 2010, while attending a gathering at the home of a fellow member brother [person 1], the gathering was raided by a group of police officers from Tianjin City. The Police confiscated their Recovery version of the Holy Bible. [He] was taken away by the police along with five others to the police station was detained for [number of] days and was “…abused” and “…slapped” in the face.

    §Before his release, [he] was asked to sign an undertaking that [he] would stop practicing at his Local Family Church. [He] was also fined [amount] and the police warned him that if was caught again, he would be sent to jail.

    §As a Christian, he cannot withdraw himself from attending church activities. If he continued to practice in china at his Local family church, there is a strong risk he would be arrested and detained again. Therefore, he decided to ‘run away’ from China. With the assistance of a friend from his Church, he obtained a subclass 456 business visa and came to Australia.

    §Since his arrival in Australia he found a Local family church in Melbourne and has been practicing his religious beliefs without any fear or concern. He is afraid that if he returns to China and continues his religious practice at his Local Church, he will be persecuted by the Chinese authorities.

    §He has regular contact with his wife who tells him that the Local family church is still banned in China. Members of the church have been abused and persecuted by the Chinese government. His wife has advised him not to return because there is a chance he would be arrested by the police.

20. The applicant told the Tribunal that when living in China, he was an ordinary factory worker, working at Tianjin’s No.1 steel factory. He has been working there since he was eighteen (18) years of age and continued to do so, until leaving China to come to Australia in 2010.

21. In 1995, the Tribunal was told that the applicant met his wife, fell in love and before being married, the applicant attended with his wife a Local family church.

22. Subsequently, the applicant would attend church house meetings two or three times a week and this culminated in his ‘baptism’ in 1996.

    The Applicant’s arrest and release without charge in May 2010.

23. The applicant told the Tribunal that his real fears about his safety in China came to head [in] May 2010. According to the applicant’s recollection, he was, together with another [number of] individuals and members of his Local family church attending a gathering, when police appeared suddenly at the door and both the applicant and his fellow members were taken away.

24. While in the custody of the local police, the Tribunal was told that he was interrogated and hit. This process continued according to the applicant for [number of] days.

25. After the interrogation had finished, the applicant was released without charge provided he paid the authorities a fine [amount] and he was requested to sign a guarantee ensuring that he (the applicant) would ‘…not join any cult activity.’ According to the applicant he ceased his religious practice for a month and he thereafter recommenced his usual practice of attending Local family church meetings until he left for Australia.

    Did the Applicant consider relocation to another part of China?

26. The applicant did not consider relocation as an option within China at the time of his alleged persecution by the local authorities in Tianjin. The Tribunal was told that ‘…there was nowhere I could go…everywhere in China…I will be under the Communist Party. There were according to the applicant ‘…many spies’ in China who ‘silently they come to you and report your actions to the police.’ He also ran the ‘…risk of being reported’ for his religious activities ‘…by his neighbours.’

    When did the Applicant decide to come to Australia?

27. It was in July 2010 that the applicant decided to leave China and to come to Australia. His visa and passport was organised by a friend.

28. The Tribunal asked the applicant to explain – why the Chinese authorities would agree to providing him with a passport and visa to travel to Australia, when according to the applicant’s own evidence, his religious practices within a Local family church, which he said the ‘…authorities considered as a “cult”…’ had caused him to be detained for fourteen days and only released after a fine was paid and a guarantee was signed by him stating that he would not to return to this church. The Tribunal was told that in China, ‘…once I was arrested, detained and released, according to Chinese law, the punishment had been finished.’ In other words, according the applicant, ‘…once they (the local authorities) had finished punishing me, then they would give me the visa.’

    The Applicant’s practice as ‘Christian’ and as a ‘member’ of the ‘Local Church’

29. The Tribunal asked the applicant to describe what happened at meetings of his Local family church. The applicant told the Tribunal that the group of people in attendance would ‘…sing religious songs’, ‘…study the bible’ and ‘…eat food together’. But, according to the applicant all these activities were done discreetly. As the applicant explained to the Tribunal, ‘…we dare not sing in a loud voice.’

30. The applicant went on to tell the Tribunal that on occasions, the meetings would also explain to ‘newcomers’ passages from the Bible. Usually, these meetings the attendance according to the applicant would be from ‘…three (3) to six (6) persons.’ Moreover, the applicant was asked to describe what were the ‘songs of praise’ sung at these meetings and the Tribunal was told that these ‘…songs were in praise of God’. The applicant then proceeded to describe in detail to the Tribunal the words of praise which were as follows:

    “Praise of God….Gloria, Gloria [we] belong to God

    Gloria, Gloria to the Father

    Gloria, Gloria to the Son

    Gloria, Gloria [we] God and Son…

    ….And let us pray in high voice…Let us pray to the Trinity…

    Gloria, Gloria we belong to God and to your definition and plan…

    Gloria, Gloria, let us praise him in a high voice…”

31. The Tribunal then asked the applicant what was the ‘Trinity’. His response was that the Trinity was defined as follows – ‘…the Father, the Son and the …Soul’ (The Tribunal acknowledges and accepts that interpretation provided by interpreters may slightly change the applicant’s response to the Tribunal’s questions. The Tribunal does accept that ‘soul’ in this instance meant ‘spirit’)

32. The Tribunal then asked the applicant to describe what is meant by ‘…the Son’. The applicant’s response was that the ‘…Son was Jesus.’ The Tribunal asked the applicant what he knew about the person called ‘…Jesus’. The Tribunal was told that ‘…Jesus was baptised when he was 30 years of age and was born by ‘…Mary’ ‘…who was a virgin’ and was ‘…born in a manger’ and was ‘…baptised by ‘John…’ 

33. Describing his ‘…baptism...’ in 1996, the applicant told the Tribunal, ‘…it happened in one of the Local family churches I was attending…I was placed in bath tub filled with water… all members present gathered around me and after prayers …one of the members pushed my head under the water.’ Asked by the Tribunal, what was the religious significance of his baptism, the applicant told the Tribunal that his baptism meant ‘…I will die with Jesus…and be resurrected.’

34. The Tribunal asked the applicant which Bible he read. The Tribunal was told that the applicant did read a Bible – the ‘…Revision version’ and was ‘…full of notes made by Li Changshou who also translated it.’ The applicant also told the Tribunal that ‘…some stories appear in different chapters’ (The Tribunal acknowledges and accepts that interpretation provided by interpreters may slightly change the applicant’s response to the Tribunal’s questions. The Tribunal does accept that ‘revision’ in this instance meant ‘recovery’)

35. The Tribunal then asked the applicant what the applicant knew about Witness Li (Lee). The Tribunal was told the following:

    §Witness Lee was born in China

    §He was saved in 1925

    §In 1983, he [Witness Lee] brought ‘God…’ to China

    §In 1984 the Chinese authorities declared the Local Church a ‘…cult’

    §In 1996 Witness Lee passed away in the United States

36. The applicant was then asked to describe to the Tribunal a story he remembered or had studied from the Bible. The applicant explained to the Tribunal the story he described as ‘…Five cakes and two fish.’ According to the applicant, Jesus and his followers were touring the countryside talking to people. He [Jesus] saw many of those who had approached him were suffering from hunger. Jesus and his followers wanted to help them but only had ‘five cakes and two fish’. As the applicant described it, Jesus took the available food, looked up at the sky and after receiving a blessing from God, there was ‘…lots of food’ and all that were hungry ate well.

37. The applicant then described to the Tribunal his version of the biblical narrative of ‘Cain and Abel’. The Tribunal was told that ‘…Abel was a shepherd and Cain a farmer.’ ‘Cain…’ always ‘…gathered crops he had grown and offered them as a sacrifice to God.’ Abel, on the other hand, being a shepherd offered ‘…his sheep’ for purpose of making an offering to God. The applicant told the Tribunal that ‘…God was pleased with Abel’s offering.’ However, God was not happy with Cain’s offerings. This caused Cain to be jealous of his brother Abel and one day when they were out in the fields, Cain struck his brother and killed him. God became ‘…angry with Cain’ for his actions and pushed him aside and ‘placed a mark on him so that everyone knew he had done a great wrong.’

38. The Tribunal then asked the applicant does his Local family church celebrate any religious festivals. The applicant’s response was ‘…no…’

39. The Tribunal also asked the applicant whether his Local family church was known to its followers by a particular name. The applicant’s response was to tell the Tribunal that his church is known to its followers as the ‘…Tianjin gathering.’

40. The Tribunal asked the applicant about the Bible and what he believed the ‘Bible’ was. The applicant told the Tribunal that he ‘…likes to listen to what the Bible says.’ He went on to say that, ‘…God taught us [the people] to listen and to follow the moral…I [the applicant] love him [meaning ‘God’] and I live in him. The applicant also told the Tribunal, that the ‘…Bible has forty (40) authors’ and consists of a ‘…new and old version.’

41. The applicant also told the Tribunal in response to its question – can you tell me about particular books that are in the ‘Bible’ – that there are four books in the Bible, the names of which are ‘…Mark…Luke…, John….and Matthew.’

42. The applicant was asked if he remembered any particular phrase or teaching which made an impact on him when studying the ‘Bible.’ The Tribunal was told that if a person is ‘…a Christian, [he] should not make false statements.’

    The Applicant’s religious activities while in Australia

43. In reference to whether the applicant practiced his religion since coming to Australia, the applicant told the Tribunal that he attend a Local Church held at the home of a member called Zhang Ro and this ‘family house church’ was situated according to the applicant at [address], Victoria. The Tribunal was told that at this residence, people would gather to sing ‘ songs of praise’, eat and socialise together and ‘…share the words of the Bible.’ These group meetings would last ‘…two hours and sometimes longer’ according to the applicant.

44. The Tribunal asked the applicant why he did not choose to go to normal church while here in Australia where the practice of religion is free from government interference and control. The applicant told the Tribunal that in his opinion, ‘…the church is doing something wrong with the faith.’ In the mainstream church, according to the applicant, ‘…it is the priest on the follower’s behalf who prays to God … but in our church [local family church] every member prays directly to God.’  The Tribunal was told that the applicant was ‘…more comfortable to pray directly to God as he wished’ in his Local Church home environment.

    Contacts with family members in China

45. The applicant told the Tribunal he would speak with his wife over the telephone once a week and he knew ‘…his wife’s movements were being monitored’ by the local police. He also told the Tribunal that his wife has continued to hold meetings of his Local house church. In particular, the applicant told the Tribunal that as early as May 2016 there were arrests of Local Church Christians in other districts of Tianjin City but ‘…not in his district.’

    Work and other activities in Australia

46. While in Australia, the applicant told the Tribunal that he applied for a work permit but cannot remember when it was actually granted and he has been pursuing work as a [occupation] at [various places] around Melbourne and is working as a [occupation]. Currently, the applicant is earning [amount] for three to sometimes 4 days’ work. He is living in rental accommodation and if some money is left in surplus after all his commitments and living expenses are paid for, he sends any residuary amounts to his family but this is a very infrequent practice.

    What would happen to the Applicant if he were to return to China?

1. The Tribunal was told by the applicant that he would not face trouble on his return to China only if he chose not to join in worshipping as he had done so previously within a Local family church gathering. Upon re-activating his religious practice the applicant was certain that [he] would ‘…be persecuted’ and in order to avoid this, he would constantly would have to ‘…rotate’ his attendances. The Tribunal asked the applicant – how would the local police actually locate him if he contemplated putting into action such an elaborate rotation system, in order to avoid detection. The applicant told the Tribunal that his actions would be revealed to the authorities by neighbours complaining about it being ‘…noisy.’ The applicant believed that if he was found doing things contrary to his signed guarantee he would be tried and sent to prison.

   FINDINGS –

   Is the applicant a follower of the Local Church in Tianjin, China as claimed?

2. First, the applicant claimed that he feared persecution in China because he is a member and follower of the Local Church and that if he returns to China, he would wish again to practice his faith as he had done so prior to leaving China and as he practiced it in Australia. At the hearing the applicant was asked a series of questions specific to the ‘Local Church’. For example, the applicant was asked to describe what happened at Local Church meetings.[1] The applicant was asked to tell the Tribunal what he (the applicant) knew about Li Changshou.[2] The applicant was asked whether Local Church members read and referred to the same Bible as do other Christian beliefs[3] and whether Local Church members celebrated the religious festivals.[4] The Tribunal noted that the applicant’s responses to these specific Local church questions were direct and revealed an understanding by the applicant of the central tenets of the doctrine of belief as followed by members of the Local Church and that he practiced his faith as was to be expected by members of this Church in China. The only different aspect of worship in the applicant’s instance was the claim by him that prayers were exclaimed not in a loud voice when a prayer meeting was happening but in a very low voice so as to not attract unnecessary interest by neighbours. Also, the Tribunal noted, that the particular congregation and prayer group the applicant belonged (according to the applicant) to had minimal numbers in order not to attract any public attention. Therefore, the Tribunal finds that the applicant is a follower and member a Local Church in Tianjin, China and that he practiced his faith in unregistered house church.

   [1] Within the ‘Local’ Church, calling on the Lord or the Name of the Lord (hu qiu shu ming) is viewed as ‘…a central and crucial practice in Christian life. By calling on the Lord’s name we are saved initially, and we receive the outpouring of the Holy Spirit…By calling we are also rescued from distress, trouble, sorrow and pain…By calling we can enjoy the riches of the Lord and His full salvation’ see, Living Stream Radio 2003, ‘What is Calling on the Lord? Part 1, The Hearing of the Faith, No.67, November, Living Stream Radio Newsletter 7 July 2009<Attachment>see also, Australian Government/Refugee Review Tribunal – Background Paper, The Local Church in China, at pp. 7-13.

   [2] Australian Government/Refugee Review Tribunal – Background Paper, The Local Church in China, at pp.2-5.

   [3] Ibid at p.3.

   [4] Holy Bible Recovery Version.

   The claim that the applicant was arrested and abused in May 2010 by the local authorities

3. Second, the applicant claimed that because of his Local Church beliefs and practice he was arrested in May 2010 by the local police after they raided an unregistered church house meeting he was attending. The applicant claimed that he was detained for [number of ] days together with other followers ‘hit’ and after he agreed to sign an undertaking agreeing not to attend or practice Local Church beliefs he was released after he also paid a ‘fine’ of [amount]. The applicant remained in Tianjin and after a brief adherence to the undertaking not to practice his faith he recommenced his attendances at unregistered house churches and refused to relocate. Moreover, in July 2010, via a friend he was able to obtain a visa to leave for Australia having secured in August 2009 a passport. The Tribunal does consider it credible and accepts, that the applicant had been arrested in May 2010 (as he claimed) for his religious practice and detained for two weeks, signed an undertaking not to practice his religion, was fined, and then released and within a month in July 2010 through the offices of a friend he arranges a valid passport and visa to come to Australia. He did not delay his leaving China for Australia. The applicant as he attested to the Tribunal in his evidence was a committed follower of the Local Church in Tianjin and regardless of the authorities restriction of his right to worship within the confines of unregistered house church, he would continue to pursue his faith even if it necessitated him leaving China for Australia.

   The claim that the applicant as a member of the Local Church will be persecuted if he is returned to China

4. Third, the applicant told the Tribunal that he had regular contact with his wife in China who told him that followers of the Local Church are being persecuted and that she was afraid that if he was to return to China and resumed his religious practices he would again be arrested. The Tribunal does consider it credible that if the applicant returned to China he would immediately attract the interest of the local authorities on account of his religion. As noted previously, the applicant claimed that he was detained by the local authorities prior to his decision to leave for Australia. He was detained for two weeks, questioned, fined and released but – that was in May 2010 and in July 2010 (according to the applicant) through a friend he was able to a visa to Australia. Indeed, his activities while here in Australia – practising his beliefs openly, freely and consistently would definitely cause him if returned to China to come into a direct clash with the authorities due to his wish to worship as he chose to do so. Therefore the Tribunal does accept as credible the applicant’s concerns based on his wife’s fears that if he were to return to China he would immediately face persecution for his religious beliefs.

5. Moreover, in response to the applicant’s concerns about his return to China and the issues he claimed to have with the authorities concerning his claim about his religion and religious practice both while in Australia and in China, the Tribunal discussed the country information that was available concerning China.

6. In general terms, the Tribunal concedes that the applicant as a ‘Christian’ and as a ‘Local Church follower’ (or member of the “Shouters” as the followers of the Local Church are described by the Chinese authorities) may have feelings of apprehension and concern about returning to China. The Tribunal acknowledges that the Chinese government strictly controls religious practices including those of state-sanctioned religious groups. Also, the Constitution of the People’s Republic of China states that all Chinese citizens enjoy “…freedom of religious belief…” but specifies that “…normal…” religious activities are protected by the Chinese state. In reality, legal protection extends only to religious groups who have registered with one of “…five patriotic religious organisations…” Religious groups which are not registered or affiliated with an official religious association are not permitted by law to register as legal entities.[5]

   [5] See US Department of State, “2015 Report on International Religious Freedom – China”, 10 August 2016, OGD95BE926678.

7. Though the Tribunal could not find particular references to Tianjin concerning the treatment of Local Church (or “Shouters” as the Chinese authorities describe them) followers and unregistered house churches, the Tribunal is guided by the information provided by the DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China[6]. According to this information the interpretation of what constitutes a cult can vary throughout China, with some local authorities listing behaviours such as “deifying leaders, deceiving people, and spreading superstitions and heretical beliefs “as grounds for labelling a group a “cult”[7]. Practices which are considered ‘superstitious’, ‘cult-like’ or ‘beyond the vague legal definition of “normal,” can attract harassment, detention and imprisonment by the authorities (for example, in December 2012, Chinese media reported more than 1,300 people across 16 provinces had been detained for propagating rumours of an apocalypse).[8] Also, a joint interpretation issued by the Supreme People’s Court and Supreme People’s Procuratorate in 1999 stated that punishments for cult crimes can be applied when one “…resists group bans by relevant departments, resumes banned groups, establishes other sects, or continues [illegal] activities.”[9] Any individual who organises or participates in “superstitious sects, secret societies or evil religious organisations” which “undermine the state’s laws or administrative regulations can be sentenced from three to seven years in prison” under Article 300 of the Criminal Law. Government ‘crackdowns’ against cults occur with relative frequency in China.[10] Moreover, the same information concludes that “…the government also considers several Christian groups to be “evil cults” including the “Shouters”, Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades Servants, Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church.”[11]

   [6] Department of Foreign Affairs and Trade Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

   [7] Ibid p.8

   [8] Ibid p.8

   [9]Ibid p.8

   [10] Ibid p.8

   [11] Ibid p.8 paragraph 3.21

8. Fourth, the Tribunal does accept based on the applicant’s evidence that one or more of the five Convention reasons is the essential and significant reason for the harm which the applicant claims to fear from the authorities in Tianjin because of the applicant’s membership of the unregistered house church belonging to the Local Church or as follower of the Local Church (as his religion). On the basis of the applicant’s evidence the Tribunal does accept 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 he will suffer significant harm from the Chinese authorities in Tianjin as result of membership of an unregistered house church belonging to the Local Church or as a follower of the Local Church and due to his desire to practice his religion freely.

9. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does have a well-founded fear of persecution for reasons of religion and freedom of religious worship, or any other Convention reason.

10. For the reasons given above, the Tribunal does consider that the applicant is a person in respect to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does satisfy the criterion set out in s.36 (2) (a).

11. 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

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

    Peter Vlahos
    Member