1510084 (Refugee)

[2017] AATA 797

1510084 (Refugee) [2017] AATA 797 (5 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510084

COUNTRY OF REFERENCE:                  China

MEMBER:Chantal Bostock

DATE:5 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2017 at 2:41pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Christian – Member of unregistered protestant church – Arrest and detention – Credible witness

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

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

3. The applicant appeared before the Tribunal on 14 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issues in this case are whether the applicant has a well-founded fear of persecution in China for one or more of the five reasons set out in the Refugees Convention, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The Visa Application

21. The applicant, a Chinese citizen from Shandong Province, is married with an adult [child]. Her visa application form indicated that she briefly travelled to Australia in September 2013 and returned to China.  According to her visa application form, [in] May 2014, she was detained for [number] days for an illegal gathering. The applicant then returned to Australia [in] June 2014 and lodged her protection visa application [in] August 2014.

22. In her personal statement accompanying her visa application, she stated that because she believed in Christianity and participated in a family church, she was prosecuted by the Chinese authorities. She explained that she was disillusioned because of the hardship in people’s lives and the corruption of officials. Her [friend]introduced her to a family church run by a [Country 1 national] Pastor. She attended bible classes on Tuesday night with [Teacher A] and on Sunday, went to worship. She explained that because the church was prohibited, they were very cautious. They pulled downs the blinds and sang in low voices because they feared being reported to the police.

23. [In] May 2014, their church was raided by over [number] police. The cross was smashed and their bibles were confiscated. They were cursed and accused of being psychopaths believing in the cult. They were taken to [a] sub-bureau of the [City 1] Public Security Bureau. The applicant was questioned and asked to confess. She was made to write a guarantee not to participate in illegal assemblies. [Teacher A] was detained for [number] days. The [Country 1 national] pastor was deported.

24. After she was released, the applicant found that their church had been seized. Her husband did not support her attendance at church and her former employer threatened to suspend her pension if she continued to attend church activities. Some family church members were arrested for attending church activities.

25. In support of her written application, the applicant submitted photographs of her being baptised in China in 2013 and attending a sermon at [Suburb 1] in 2014 and in 2015, attending [an event] at [a location] and a gathering with other members. She also submitted a letter from [Reverend B] from [Church 1] dated June 2014, stating that the applicant was a “strong Christian”, who regularly participated in their church services and church-related activities. In addition, she submitted her marriage certificate and its translation, her identification card and its translation and a notice of detention from the [City 1] Public Security Bureau [Sub] Bureau, dated [May] 2014 and its accredited translation. She also submitted a letter from [a] member of the family church, dated [June] 2015, stating that the applicant preached the gospel and donated money and things to migrant workers but that church members were subsequently caught and the church was dissolved.

    The Departmental interview

26. The Tribunal listened to a recording of the interview of the applicant by a delegate of the Department of Immigration. After providing background information, the applicant explained that she could not return to China as she was persecuted for belonging to a family church. Her family church, which was [Country 1] in origin, was dispersed after [May] 2014.

27. Her church was called the [Church 2]. She became a Christian in September 2012 because of the suffering in her family. Her father was in [a certain sector], where there was much corruption. When he became ill, he was not treated well and passed away. Her mother’s house was demolished and she only received compensation 20 years later. She was feeling depressed and, as the other churchgoers seemed happy, she decided to attend.

28. The applicant was baptised in July 2013. The applicant and delegate discussed the          photographs at the interview. She stated that baptism was a declaration of belonging to God. Her neighbour introduced her to Christianity. She attended meetings two nights per week where they read the Bible. Every Sunday, the church service was held between 9.30 -11:30 am. Around 10 to 30 people attended. She believed in God who is her father and creator.

29. When asked why she chose to attend an unregistered church, she stated that she had tried registered churches but the teachings were different. In any event she did not know which one was registered and not registered. She attended the family church because it was close-knit and they were different to other churches. They put their money together and helped those in need.

30. In Australia, she is attending [Church 1]. She did not know its denomination. It has a very big congregation. Last year it held a big preaching event. She attended her first meeting [in] June 2014. The letter she provided was signed by the priest.

31. The applicant described the events of [May] 2014. It was [time] am and her home was raided by the police. She and the other members of the congregation were taken to the detention centre where all the individuals were separated and questioned. She was told it was an illegal gathering which was a breach of the law. The applicant did not know their meetings were illegal. She prayed to God. The police told her she was brainwashed and poisoned. She was bullied by people at the detention centre, kicked and called a “psycho”. She was the detained for [number] days. She said that the longest period of detention allowed was 10 to 15 days and they had been detained [number] days, the purpose of which was to scare them. The leader was sent to her home town. She showed the delegate the notice from the police to her family.

32. Following her detention, she could not return to normal life. She had a visa for Australia and decided to travel straightaway. She wants freedom of religion and was willing to leave her husband and [child]. She had a message from God to go overseas. When asked whether she could move elsewhere in China, she stated it was not easy to find a family church in China unless it was local and after a period of time, when one was introduced.

33. The applicant was asked whether there was a specific part of the Bible that she liked. She stated that she liked Poems 23/1 which stated that Jesus Christ was the Shepherd and to follow God. Christmas was to celebrate Jesus Christ’s birth and Easter was when Jesus Christ died on the Friday on the cross and came back to life on Sunday.

34. If returned to China, she fears she will be called a crazy person. She would be looked down upon. The delegate put to the applicant that the Chinese Communist Party (CCP) was not concerned with small churches. She asked why she could not go back and join another family church. The applicant stated that if returned she would look for a new church. The applicant stated that she was following God’s message. In Australia she was working for God and she was prepared to sacrifice her family for God. The environment was difficult in China. She worried about what former colleagues would say. If she divorced because of religion she would be looked down upon.

35. The Departmental delegate found that the applicant was a genuine, practising Christian, had attended an unregistered family church and would continue to attend a family church in China. She further found that the applicant was detained [in] May 2014 for gathering illegally. She also found that the applicant was a practising Christian at [Church 1]. She was not, however, satisfied that the applicant had “a real chance of being persecuted for a Refugees Convention reason”. Nor was she satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there was a real risk that she would be subject to significant harm.

    The Hearing

36. At the hearing, the applicant submitted another letter from [ReverendB], church pamphlets and more recent photos of the applicant and members of the Australian congregation. The applicant gave evidence through an accredited interpreter at the hearing. She is currently living with a family, working as [occupation]. The applicant outlined her employment history, which included working [until] 2002, whereupon she retired. She continued to work, however, as [occupation] upon her travel to Australia in 2014. She receives a pension from her previous work.

37. Her family in China consists of her [adult child] who is [age] years old and lives in [City 2] and works for [a] department of [an agency] [City 2]. She married in about 1980. Her [adult child] lives with her husband, from whom she officially separated when she left for Australia. The applicant explained that her husband was opposed to her religious beliefs, which was the reason for this separation. The applicant’s mother is [age] years old and lives in [Chengyang] province, Shandong. Her [age]-year-old sister lives in Shebei District, with her husband and [child], near her mother.

38. The applicant has held two passports, her present passport being the second one. She applied for a tourist visa and travelled as part of a tour group to [country] and Australia in 2013. She returned to Australia in June 2014, whereupon she went to [Suburb 2], where she knew there was a Chinese community. She was already thinking of applying for protection but did not know how. She saw a leaflet called [Church 1] and rang the pastor. A few days later she attended the gathering for Sunday service. As she was very distressed about her arrest in China, a sister approached her and told her to speak to the Pastor ([ReverendB]). The applicant lodged her application in August 2014. Her migration agent helped her prepare the form and a statement. She stated that the application form and statement were true, correct and complete.

39. When asked what she feared upon her return, the applicant stated that [in] May 2014, she and others were attending [Church 2] on Sunday morning at about [time] am. Suddenly more than 10 police came. They told them not to move as it was an illegal gathering. Police confiscated Bibles and leaflets and flipped over all the chairs and destroyed the lunch. They were told that they were not allowed to have a gathering. [Teachers A]and [B], the congregation and the applicant were arrested. There were nearly [number] members of the church as well about [number] children. They were all taken to the detention centre. Those with children were detained [number] days and then released. She was pressured to sign a written guarantee to stop gathering but refused. The applicant was detained for [number] days at [City 1]. The applicant stated that she was held in administrative detention but not charged. In detention, she was threatened, prevented from sleeping, insulted and beaten with sticks. She was told that if she continued to attend church and to gather illegally, she would be re-arrested. She returned home to her husband, who was unsympathetic about her detention because he did not approve of her Christian activities. She was sick and scared. She told her husband that she wanted to tour Australia to relax. She continued to go to church this time in [City 1] as [Church 2] had disappeared. Other members were detained and disappeared as she did not know where they live. [Teacher B] was forced to leave China.

1. The applicant joined [Church 2] in September 2012. She also attended on 5-6 occasions the three patriotic churches in [City 2] around Chinese New Year in 2014. [Church 2], which was located near her mother’s house, was responsible for spreading the Gospel to poor people in rural areas. The applicant admired the work of missionaries. She joined the church because she wanted to help others and because she felt her father was very poorly treated in [a certain sector] and her parents were not rightfully compensated following the demolition of their property.  

2. The applicant attended [Church 2]. The applicant attended small group gatherings for prayers on Friday night and bible study on Tuesday night at 7.30 pm at [TeacherA]’s unit in [Chengyang]. On Sunday night, the [Church 2] congregation gathered for official worship at 10 am in [a] 3-storey building in a residential area. The raid was at their Sunday Church gathering. The applicant read and studied the Bible. Her favourite verse in Mathew Chapter 11/38, which she described to the Tribunal. The applicant explained the difference between the Old and New Testament: There were 66 books: the New Testament was about Jesus Christ while the Old Testament related to the first book of Genesis and contained Creations, the history of Israel and the kings of every generation. She explained the significance of Christmas, Easter and Baptism. The applicant was baptised by submersion [in] July 2013 by a Pastor who came from [Country 1] in [Church 2].

3. In Australia, the applicant attends [Church 1]. She attends every Sunday in [Suburb 2]. [Reverends B] and [name] give the service in Chinese. She attends choir under the auspices of the church.

4. The applicant submitted and discussed with the Tribunal various photos demonstrating her involvement in the church. In 2015, she attended a 2-day evangelical conference [in] October 2015 at [Suburb 1]. She met a famous Pastor from [another country]. She attended another evangelical conference in September 2016 [in another suburb], where she met the mayor and his [wife]. The applicant also attended a conference [in] October 2014, during which famous pastors attended. Finally she visited [a city], where, for the first time, prayer was done in Mandarin. She was involved in handing out leaflets, services, and donations.

5. The Tribunal asked the applicant about the notice of detention and noted that there was a high level of fraud and corruption in China. The applicant agreed that China was famous for fraud and corruption. She said the document was posted to her house and received by her husband.

6. If returned to China, the applicant feared arrest as it was dangerous for whoever has been previously arrested. She did not know where she would practise her religion if returned. She could not attend a registered church as it was controlled by the CCP and rife with corruption. Everyone who attended the registered Church had to pay a certain amount of bribes, based on their salary. The applicant believed that because of her previous arrest and detention, she would be subject to arrest and detention once again.

7. In the context of discussing the country information relating to the risk of persecution of Christians practising their religion in China, the applicant stated that persecution was undertaken on a large scale by local authorities. She said that if she were re-arrested, she would be killed.

8. When discussing s 91R(3) of the Migration Act, the applicant stated that she did not have to attend church in Australia in order to remain in Australia. She did not prioritise work in Australia. Under the church umbrella, she fasted for 7 days in the hope that the same sex marriage amendment was not passed by the Australian Parliament. She was not just a Christian, she was a disciple of Jesus Christ and as such, she was required to spread the good gospel to all nations. The spreading of the gospel was Christianity’s biggest mission. In Australia, she was able to serve openly and to participate in activities.

9. Following the hearing, the applicant lodged an additional letter from [Reverend B], who stated, “amongst other things”, that the applicant was actively taking part in the church’s activities, spreading the gospel in the street and disciple training. She also submitted her household registration and translation and a video clip, with no identifiable date or location, which appears to show police rounding up members of the public.

   Relevant Background Country Information

10. The Department of Foreign Affairs and Trade Thematic Report entitled “Unregistered religious organisations and other groups in the People’s Republic of China” dated 3 March 2015 provides the following background information:

    2.1 China is a religiously diverse country. Its ethnically varied population and long history of trade and engagement with foreign influences have resulted in a rich and complex society of faiths, belief systems and organised religious groups.

    2.2 Confucianism, Taoism and Buddhism constitute the "three teachings", a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Although Christianity has been present in China since the 7th century, the rise of Christianity in China was promoted by Protestant Christian missionaries who became active in the nineteenth century. Catholics became active in China in the late thirteenth century.

    2.3 The establishment of the People’s Republic of China in 1949 under the control of the atheist Chinese Communist Party (CCP) resulted in the expulsion of Christian missionaries and the establishment of “Patriotic Associations”: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    2.4 Religious practice was forced underground throughout the Cultural Revolution (1966-1976) and people began to practice their religious faith in secret. This led to the development of so-called “underground” religious movements. State-sanctioned religious practice re-emerged under Deng Xiaoping’s “Reform and Opening” policies in the late 1970s and 1980s. Han Chinese Buddhists and Daoists, in particular, have enjoyed greater freedom as Chinese leaders use such traditions to promote Chinese cultural identity to both a domestic and international audience.

    2.5 The Party is also increasingly willing to recognise and support the philanthropic activities of registered religious groups, particularly in disaster relief, health care and poverty alleviation. At the same time, members of religious faiths that are perceived by the government to be potentially threatening can be met with suspicion and government controls. Members of overseas-affiliated Christian organisations, Tibetan Buddhists and Uighur Muslims, in particular, can face interference, harassment, and at times, violence (see DFAT’s Country Report on China, March 2015 for a more detailed discussion of Tibetan Buddhists and Uighur Muslims).This report primarily discusses conditions for unregistered Protestant Christians, Catholics, and members of Falun Gong and other so-called “cult” organisations currently operating in China.

    2.6 Article 36 of China’s Constitution states that citizens of the People's Republic of China enjoy freedom of religious belief and that no state organ, public organisation or individual may compel citizens to believe in, or not to believe in, any religion. Discrimination on religious grounds is prohibited in theory.

    2.7 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureaux, have significant discretion in implementing the regulations.

    2.8 The Chinese government limits religious practice to five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) and members are required to register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and are required to adhere to the principles of independence and self-governance from foreign associations. Registered religious organisations are permitted to possess property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.

    2.9 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. Theological restrictions are imposed on some religions. For example, Chinese Protestants are expected to be non-denominational, and Catholics are required to be independent from the Vatican. In the past, Chinese non-governmental institutions (NGOs), including religious organisations, were permitted to receive donations in foreign currency and favourable tax treatment could apply if the funds were used for charitable activities. However, draft NGO regulations submitted to the National People’s Congress in December 2014 may ban NGOs in China that are mainly funded or have close links to foreign organisations. The draft has not yet been made publicly available and DFAT is not able to comment on the extent to which religious NGOs in China will be affected by the new regulations should they be passed/agreed.

    2.10 While the Chinese Constitution protects religious activities within the patriotic religious organisations’ framework, the government does not generally tolerate activities that are perceived to disrupt public order, harm the health of citizens or interfere with the state education system. Religious groups that fail to affiliate with one of the five official patriotic associations are considered illegal. As a result, they can be vulnerable to coercive and punitive action by authorities and denied legal protection under Chinese law.

    2.11 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.

    3.1 SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of a sizeable unregistered Christian community in both rural and urban China. Known as “house” or “family” churches (for Protestant organisations), and “underground” churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship.

    3.2 House churches can be found across China and vary in size and religious practice. Gatherings of 30 to 40 people are generally tolerated, although DFAT is aware of cases where gatherings of fewer people have attracted negative attention by authorities. On the other hand, there are also some house church congregations that number in the thousands and are able to operate with little to no interference from local authorities. A number of house churches are known to restrict their own size and activities so as to avoid official attention.

    3.3 Members of both unregistered and registered religious organisations can face adverse attention by authorities when: they are perceived to have links with foreign influences (either through personnel or funding); are critical of the government or advocate for issues considered political or sensitive by the government; belong to large and potentially influential networks; are engaged in other criminal activities; or are operating in provinces or local settings where corruption is prevalent, and the potential for extortion and running afoul of local authorities’ favour, is potentially higher. Occasionally, anti-crime campaigns with quotas for a certain number of arrests can also prompt local officials to crack down on Christian activities that had previously been tolerated.

    3.4 The majority of bibles in China are printed by a joint venture between the United Bible Society and the Amity Foundation whose factory is located in Nanjing. The Three Self Patriotic Movement (TSPM – see below) and the China Christian Council (CCC) distribute an average of 3.5 million copies of the Bible per annum to approximately 57,000 churches in China, including the unregistered churches. These organisations are the only entities allowed to print and distribute the Bible in China.

    3.5 Sources claim the TSPM imposes a limit of two bibles per person and identification must be shown when purchasing bibles so the government can ensure quotas are not being exceeded. The government closely monitors the private importation of published materials and it can be risky for a person to carry multiple copies of the same material brought from overseas. Credible sources have told DFAT that, generally speaking, up to 50 copies of different items and up to five copies of the same item would be considered the maximum limit on personal use but conditions can vary according to location and whether or not customs officials are vigilant in checking personal belongings. In the last 10 years an estimated 200 registered Christian bookstores and nine domestic Christian publishers have opened in China. Despite the internet restrictions in place (see DFAT Country Report), a limited number of Chinese language websites can be accessed to read Bible passages. In Shanxi province in 2013, two Christian bookstore owners were reportedly sentenced to five and two years’ imprisonment for operating an “illegal business”. DFAT assesses that bibles are generally available and affordable in China, particularly in larger, urban areas.

    3.6 The Three-Self Patriotic Movement (TSPM) was established in 1949 to oversee China’s “post-denominational” (i.e. non-denominational) Protestant church. The “Three-Self” is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation. There are approximately 60,000 registered Protestant churches under the supervision of the China Christian Council (CCC) and the Three Self Patriotic Movement, as well as several hundred thousand affiliated meeting points. Approximately 200 pastors graduate every year from China’s one seminary and 20 Bible schools run by the CCC. Qualifications from foreign seminaries are not officially recognised in China.

    3.7 Unregistered Protestant churches tend to have more theological freedom than state-sanctioned churches but risk adverse treatment by authorities due to their unregistered status. As members of “illegal” organisations, unregistered Protestant church members can experience harassment, raids and destruction of church property, pressure to join or report to the government-sanctioned religious organisations, and occasional violence and criminal sanction, particularly in response to land disputes with local authorities. For example, authorities have been known to apply indirect pressure on house churches by cutting off electricity or forcing landlords to evict house church members…

    3.9 Some members of house churches are able to move freely between registered and unregistered churches, for example, they may be permitted to use registered facilities as a place to hold weddings or to purchase bibles. However, this arrangement does not apply to all unregistered church goers, some of whom report difficulties in hiring hotel or restaurant venues for weddings because of their association with illegal (unregistered) church organisations. Registered churches are able to organise their own activities as long as they accord with government regulations…

    Findings and Reasons

11. The Tribunal sighted the applicant’s passport at the hearing. Based on the material before it including her passport and her oral evidence at the hearing, the Tribunal is satisfied that the applicant is a citizen of China. For the purposes of s 36(2)(aa), the Tribunal accepts that China is the receiving country. The Tribunal further finds that the applicant is outside her country of origin. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than her country of nationality.

12. As stated earlier, the Tribunal must consider whether the applicant has a well-founded fear of persecution for a Convention reason. If the Tribunal finds that the applicant does not have a well-founded fear of persecution, the Tribunal must then consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to China, there is a real risk that the applicant will suffer significant harm.

13. The Tribunal considered all the material before it, including the applicant’s oral and written evidence and country information. The applicant made various claims relating to his fear of returning to China, each of which is considered by the Tribunal. When assessing the credibility of the applicant’s claims, the Tribunal had regard to the Tribunal’s Guidelines on the Assessment of Credibility, dated July 2015.

14. The Tribunal found the applicant credible, given the clear, forthcoming and detailed nature of her oral evidence and its consistency with the material on file.

15. The Tribunal finds that the applicant was a practising Christian, who attended [Church 2], a close knit church who helped those in need. It further finds that she was arrested, detained for [number] days and harmed for being involved in the [Church 2]. The Tribunal accepts the applicant’s evidence that she was told that she would be re-arrested if she continued to attend church and to gather illegally. It accepts that the [Country 1 national] pastor was forced to leave China and the church members were dispersed.  

16. In light of the evidence before it, including the applicant’s oral evidence, the letters from [Reverend B] and the photos of the applicant attending church activities in Australia, the Tribunal is satisfied that the applicant continues to attend church on a weekly basis, as well as evangelical conferences and other major events. The Tribunal further accepts her evidence that she considers the spreading of the gospel as Christianity’s “biggest mission” and that she is involved in distributing leaflets about the church.

17. Because of the applicant’s past religious activities, the Tribunal is satisfied that she engaged in the conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the Convention, as set out in s. 91R(3) of the Act.

18. The Tribunal accepts the applicant’s evidence that if returned, she does not know where she would practise her religion and that she does not want to attend a registered church as it is controlled by the CCP and is rife with corruption. The Tribunal accepts that as a disciple of Jesus Christ, the applicant would wish to continue to spread the gospel, if returned to China.

1. As noted earlier, the country information from DFAT relating to China indicates that proselytising is not permitted in public. Nor is distributing unapproved literature and associating with unregistered religious groups permitted. Furthermore, as the above-mentioned country information indicates, members of unregistered protestant church members may experience harassment, raids and destruction of church property, pressure to join or report to the government-sanctioned religious organisations, and occasional violence and criminal sanctions. In light of the country information, the Tribunal is satisfied that in order to avoid a real chance of persecution, the applicant would have to modify her behaviour in a way that would require her to change the way in which she practises her religion.

2. The Tribunal accepts that if the applicant came to the attention of the authorities, there is a more than remote chance that she could be subject to harassment, pressure to join a state-sponsored church, violence and criminal sanction, which could amount to “serious harm”, within the meaning of s. 91R(2) of the Act. The Tribunal therefore finds that the persecution feared involves “serious harm” as set out in s. 91R(1)(b) of the Act. The Tribunal further finds that the persecution feared by the applicant comes within the Convention reason of religion, which is the essential or significant reason for the persecution she fears, as required by s. 91R(1)(a) of the Act. The Tribunal further finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves her selective harassment for a Convention reason, namely her religion.

3. Having regard to the available information, and considering the applicant’s claims cumulatively, the Tribunal finds that the applicant has a well-founded fear of persecution for a Convention reason.

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

   DECISION

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

   Chantal Bostock
   Member