1513272 (Refugee)

[2018] AATA 1285

1513272 (Refugee) [2018] AATA 1285 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513272

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:9 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 09 April 2018 at 1:33pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Member of Salvation Army – Practising Christian – Yiguandao – Social group – Had child out of wedlock – Involved in charitable work and spreading of Gospel

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES
Wang v MIMA (2000) 105 FCR 548
MIMA v Zheng [2000] FCA 50
Liu v MIMA [2001] FCA 257
DZABG v MIAC [2012] FMCA 36
DZABG v MIAC [2012] FCA 827
Pei Lan He v MIMA [2001] FCA 446

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. [The first named applicant] appeared before the Tribunal on 12 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from two members of her church. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   THE 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.

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. 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’).

9. 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 (the Department) –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

   Background

10. The applicant is [age] year old married woman from Fujian Province in China. She has an [age] year old daughter who was born in Australia. At the hearing she stated that she and her daughter’s father had married earlier that day.  Her parents and a brother remain in China.

11. Prior to leaving China the applicant was a student.  She arrived in Australia [in] February 2008 on a student visa. She obtained a second student visa which expired [in] March 2010.  She remained in Australia unlawfully until [November] 2014 when she was located by the Department of Immigration and obtained a Bridging visa E after stating that she intend to apply for a substantive visa. [In] December 2014 she applied for a protection visa.

12. The applicant’s husband is [age] years old. Prior to arriving Australia he was a student.  He arrived in Australia on a student visa [in] January 2008. That visa expired [in] March 2010. He is included in this application as a member of his wife’s family unit.

13. The applicant’s daughter was born in Australia [in date]. She is also included in this application as member of the applicant’s family unit.

    Summary of claims

14. The applicant claims that she is at risk of serious harm on return to China because she is a member of the Salvation Army. She claims that she will be denied the right to practise her religion if she returns to China. She claims that she feels that it is her duty to proselytise and she will continue to do so if she returns to China and she will be persecuted because of this. She also claims that her daughter will be banned from attending church and may be bullied or expelled from school because she has been raised in a Christian household.

15. The applicant also claims that she would be fined if she returned to China because her daughter was born out of wedlock when she was only young and this is contrary to China’s family planning rules.

    Evidence provided to the Department

    Statement dated 3 December 2014

16. The applicant stated that she did not depart Australia when her visa expired in 2010 because she was fearful of telling her parents about her pregnancy. She remained in Australia with her partner and daughter.

17. The applicant said she began to follow Yiguandao in 2012 because she lacked a spiritual dimension to her life. She later amended this and said that she had begun to follow Yiguandao in December 2013.  She provided copies of baptism certificates for herself and her daughter issued [in] December 2013.

18. The applicant first made contact with Salvation Army when she saw members taking donations outside [a supermarket] in [Suburb 1]. She enquired about the religion and was told that there was a church nearby. The next Sunday she went to the service. After a few weeks of Bible study she understood that Yiguandao involved superstitious practices and required the worship of many gods and Buddha, which is opposed to the Bible. She decided to join the Salvation Army to do charitable work for the Lord and to preach the word of God. She said that she was receiving training and would soon join the Army.  

19. The applicant claimed that the Salvation Army had been banned in China and some priests had been arrested or deported. She said that members of the church were forced to join the Three Self Patriotic Church or face imprisonment. The applicant claimed that as a result she would not be able to practise her religion in China and set out a range of reasons why she would not be able to practise her faith within the Three Self Patriotic Church, primarily because she did not approve of the role played by the Chinese government and because proselytising is not permitted. She also claimed that if she informed members of her church in Australia about the situation in China she would be accused of espionage.

20. The applicant also claimed that her daughter would face discrimination including restrictions on her ability to attend school because she had been born outside the rules set out in China’s family planning rules.

    Interview with a delegate of the Minister for Immigration held [in] August 2015.

21. At the beginning of the interview she provided the following documents.

    ·     a detailed chronology of her activities with the Salvation Army which states that she first attended a meeting of the church [in] November 2014;

    ·     a copy of a document entitled ‘a soldier’s covenant’ signed by the applicant [in] July 2015;

    ·     a statutory declaration dated [in] August 2015 from [a] Chinese Chaplain of the Salvation Army in [Suburb 1] which states that the applicant began to attend the church in early November 2014 and her husband began to attend a few weeks later;

    ·     a reference from [a witness] dated which states that the applicant regularly attends Bible classes and other activities;

    ·     a statutory declaration from Minister [named] which states that the applicant began to attend the Salvation Army [Suburb 1] branch [in] November 2014; and

    ·     a statutory declaration from [another witness] which states that he first saw the applicant and her family at a Salvation Army service [in] November 2014. It also states that he was detained in China for attending an underground church and had been granted protection in Australia after joining the Salvation Army in 2013.

22. During the interview the applicant confirmed that she had first attended Salvation Army services [in] November 2014. The delegate observed that this was [a number of] days before she applied for protection and asked why she had decided to apply for protection after such a short association with the church. She said that one of the brothers at the church had told her about problems which he had faced in China and she had then looked for information on the internet. The delegate questioned her about her beliefs and practices as a member of the Salvation Army. She demonstrated some knowledge of the faith, but lacked an understanding of some basic concepts.

    Post interview submissions

23. Following the interview the applicant provided a statement in which she speaks at length about how she was attracted to the Salvation Army and why she cannot worship at a registered church in China.

    The delegate’s decision

24. In light of the fact that the applicant applied for protection after being unlawful in Australia for a significant period of time, only made contact with the Salvation Army about a month before applying for protection and had only limited knowledge of the Salvation Army’s articles of faith the delegate found that the applicant had joined the church and participated in its activities as part of a deliberate strategy to gain protection and remain in Australia rather than because of a genuine interest in the faith. As she found that the applicant had engaged in this conduct for the sole purpose of strengthening her claim for protection she ignored these claims when assessing her application for protection (s.91R(3) of the Act).

25. In assessing the applicant’s claim for complementary protection the delegate reviewed evidence regarding the situation of Christians in China from a range of sources. She noted evidence that the Salvation Army has offices in China and provides disaster relief and other assistance inside the country.[1] She also noted information for DFAT and other sources[2] which confirm the Chinese government requirement that churches register with the appropriate government body, that the activities of Christian groups are monitored and controlled and that Christians who engage in certain activities may be at risk of harm in China. Most also note that many Christians worship without facing problems and that many groups outside the state system often worship with the tacit approval of the government. The delegate did not accept that the applicant faced a real risk of suffering significant harm on return to China.

    [1] DFAT Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China 3 March 2015; China COI Compilation: Austrian Centre for Country Information and Asylum Research and Documentation (ACCORD) 1 March 2014; QH (Christians-risk) China CG V Secretary of State for the Home Department  UK Upper Tribunal (Immigration and Asylum Chamber)  1 March 2014; China-International Religious Freedom Report 2013 US Department of State, 28 July 2014 and Human Rights Watch World Report 2015 – China.

    Evidence provided to the Tribunal

26. On 9 February 2018 the Tribunal received a submission from the Applicant. It states she became involved with the Salvation Army in [Suburb 1] because she was seeking a spiritual home and because of the friendship and support she found when she became attending services and activities of the church. It repeats the claims made in earlier submissions regarding the problems she believed she would face if she returned to China and also claims that her daughter would be bullied, denied the right to attend services and might be expelled from school because she has been raised in a Christian home. She also provided supporting letters from supporting letters from several members of her congregation.

27. The Applicant attended a hearing of the Tribunal on 12 February 2018. She was not dressed in a Salvation Army uniform. She accompanied by a number of supporters from her local Salvation Army church.

28. At the hearing I asked the applicant about the circumstances in which she had obtained bridging visa prior to applying for protection in 2014. She said that she had been located by the Department and then applied for bridging visa. In her application she stated that she intended to apply for a substantive visa. Following this her church told her she could apply for protection. When asked to confirm that she had not been aware of the possibility of seeking protection before she was located by the Department, she said that she had been aware of the possibility and was already planning to do so before she was caught by the Department.

29. I noted that the applicant claimed to have joined Yiguandao in 2013 and asked why she had not applied for protection at that time. She said that she had not considered applying for protection because Yiguandao did not make her feel peaceful and happy and she did not want to use it a reason for seeking protection.  I advised the applicant I had some doubts about her claims regarding her involvement in Yiguandao, but in any event as she no longer belonged to the group it appeared that it would not have any impact on her treatment on return to China. She said that this was correct.

30. I asked the applicant why she had not returned to China when her visa expired in 2010. She said that she had had her daughter in 2009 and her mother was angry and scolded her. In addition she had not achieved very good academic results and felt she could not return. I asked the applicant what her parents would do if she returned to China now. She said that she could not face them and she wanted to avoid problems.

31. The applicant said that she was also concerned because her daughter had been born outside China’s family planning rules and because she was very young and unmarried at the time.  I noted that she had only had one child and her daughter was born outside China and advised her that it was my understanding that family planning rules had recently been relaxed and it was not my understanding that she would face serious problems with the family planning officials if she returned to China. She said that she had breached the rules by giving birth at a young age and she would have to pay a fine.

32. I asked the applicant if her husband also belonged to the Salvation Army. She said that he was a follower and attended services, but he was not an official member of the church and did not spread the gospel.  When asked why he had not become an official member her response was somewhat confused but in essence she said that he had difficulty adhering to church rules which banned smoking and drinking.

33. I advised the applicant that it appeared to me that she had probably joined the Salvation Army primary in order to obtain protection and remain in Australia. She said that this was not true and maintained she had joined the church because she was seeking a spiritual home.  I advised her that whatever her motivation for joining the church, in light of her continuing participation that the references from other members of the church confirm, I accepted that she had developed a genuine commitment to the faith.

34. I asked the applicant if she had been involved in any activities apart from attending church services. She said that she talked to people and helped the leader to organise outdoor activities for young people. I asked her to explain how she spread the gospel. She said that she told people about salvation and Jesus. I asked her to tell me about the proselytising activities she had been involved in recently. She said that she volunteered in a welfare centre [which] helped poor people and people with difficulties and chatted to them about the Salvation Army and sometimes invited them to Sunday services. She said that she did this two days week from [morning] to [afternoon]. When asked if she spread the gospel in any other way she said that she testified at Sunday services and spoke about her involvement in a fellowship event in [a region] which was attended by members of the Salvation Army and some people who did not belong to the church.

35. The applicant said that she had also been involved in fundraising activities for the Salvation Army.  When asked for details she said that in the last three months she had been part of a Salvation Army choir at a Christmas performance and at the races in [January]. 

36. I advised the applicant that information from DFAT indicated that Salvation Army carried out charitable work in China and observed that it seemed unlikely that they would do this if followers of the church were being persecuted. I also noted that an article in the Salvation Army magazine Others indicated that the Salvation Army had permission to partner with local congregations in religious activities at the invitation of Provincial Christian Councils. I observed that it appeared that the Salvation Army had an arrangement which allowed followers to attend registered churches in China and asked why she would be unable to do this.  The applicant said she was a Christian and she was obliged to manifest the glory of God and the Salvation Army was just the way she did these.  I advised her I had difficulty understanding why she would object to worshiping at a registered church when the Salvation Army appeared to be happy for their members to attend these churches in China. The applicant said that she believed that the Bible required her to spread the gospel and referred to Matthew 28:19-20 and Acts 1:8.  I asked if anyone in the Salvation Army had told her that she should not worship in a state registered church in China. She said that nobody had told her not to worship in a state registered church. I asked if she had spoken to anyone at the Salvation Army about the situation for church members in China or their views on how members of the Church should practise their religion in China. She said that her Pastor had told her that the Salvation Army worked in two ways, one was involvement in charitable works and the other was spreading the gospel, which was not allowed in China.

1. Following a break in the hearing the applicant added that when she participated in fundraising activities for the Salvation Army she would speak to people making donations and invite them to the church.  When asked how often she participated in fundraising activities she said that she participated in the Salvation Army choir outside a shopping centre at Christmas and she had also participated in a fundraising event at the [races] in January. I observed that it appeared that she only participated in fundraising events occasionally. She confirmed that this was correct.

2. The applicant also claimed that when she went shopping she would strike up conversations with people and tell them about Jesus and the Salvation Army when she went shopping. When asked how she initiated these conversations she said that because she was a nice young woman many people would stop and talk to her, although not all of them responded. She said that she did this almost every day.  I noted that she had not mentioned this claim when I asked her about her involvement in spreading the gospel earlier in hearing and advised her that I had some difficulty accepting that this was true. She said that she was nervous and maintained that her claims were true.

3. I also took evidence from two members of the applicant’s church. One witness who was born in China said that anyone from overseas was closely monitored when they visited China. She said that she and her husband had been detained for a short period because of his religious activities. He was not a member of the Salvation Army at that time. She said that she had attended a registered church when she visited China about two years ago, but she had not told anyone that she was from Australia or that she belonged to the Salvation Army because she was afraid to do so. She said that she believed that the applicant would be monitored if she returned to China and religion would always be controlled in China.  The other witness said that based on information he had seen on the internet and information provided to him by members of his church who were originally from China he understood that Christians who spread the gospel were persecuted in China.

4. I advised the applicant’s witnesses that it was my understanding that the Salvation Army worked cooperatively with the Chinese government and were expanding their presence in the social welfare field in China and that I had difficulty accepting that their church would engage in this work if members were being persecuted in China. I also noted that the article in Others magazine suggested that their church was happy to have members attend registered churches. I asked if the witnesses were able to provide any further information on the Salvation Army’s views on how members should worship in China. They said that they did not but would seek clarification.

5. At the end of the hearing the applicant’s representative submitted that she was a committed Christian first and a member of the Salvation Army second and if the Salvation Army deviated from its stated goals of spreading the gospels then his client would not follow their views but would do what she believed the Bible required of her.  I asked the applicant to clarify this submission as I had understood that she was committed to the Salvation Army. She said that the Salvation Army was secondary for her. She said that whatever the views of the Salvation Army she would not attend a registered church and she would follow the Bible teaching requiring her to spread the gospel. I advised her that I had some difficulty understanding why she would not follow the recommendations of a church to which she claimed to be committed and observed that this might suggest she had modified her evidence when advised of the information which suggested that the Salvation Army had arrangements in place for members to attend registered churches. She maintained that she was telling the truth.

6. Following the hearing the Tribunal received a copy of a statement from [an] Officer of the Salvation Army in Hong Kong and Macau. It confirms the information contained in the Others magazine and notes that the Salvation Army does not operate churches (corps) in mainland China and therefore encourages any staff or church members working in mainland China to join and support local registered Churches.

7. The applicant’s representative also provided a number of letters of support and a petition from the applicant’s Salvation Army church in [Suburb 1]. In essence these documents state that because of concern not to jeopardise the Salvation Army’s work in China the letter of [an officer’s] advice does not fully or accurately describe the situation for members of the Salvation Army in China and that the applicant is a dedicated member of the Salvation Army who would not restrict her activities to participation in a registered church and should not be expected to do so. One of the letters and a number of the signatories of the petition are originally from China and state that their experience and knowledge of the situation in China indicates that the applicant will not be able to practise her religion in the manner she wishes to and that she is likely to face serious harm for her religious beliefs and practices if she returns to China. One of the letters suggests that there is no evidence that members of the Salvation Army have been invited to participate in the activities set out in [the officer’s] letter and suggests that they would never be invited to participate in any such activities because true Christianity is not accepted in China. The applicant’s representative submitted that the evidence from members of the applicant’s church in [Suburb 1] provided a more accurate picture of the situation for Christians in China than the information from [the officer] and therefore should be given greater weight.

8. The applicant’s representative also provided a copy of an article entitled ‘The Top 50 Countries Where is it Most Dangerous to Follow Jesus’. According to the article China is the 43rd most dangerous country for Christians. The article makes no mention of the Salvation Army and contains no further information on Christians in China. He also provided a copy of revisions to China’s regulations on religion which were issued in September 2017. There is no specific mention of the Salvation Army. The regulation which states that religious venues must have state approval is highlighted.

   CONSIDERATION OF THE APPLICANT’S CLAIMS

   Claims relating to religion

   Country information

9. Churches in China[3] are required to register with the relevant government patriotic association which is overseen by the State Administration for Religious Affairs (SARA). They are permitted to possess property, publish literature, train and approve clergy, collect donations and conduct charitable activities. However, proselytising is only permitted in registered places of worship and in private settings and distributing unapproved literature and associating with unregistered religious groups is banned. Churches also face some theological restriction; for example, Chinese Protestants are expected to be non-denominational and Catholics are required to be independent from the Vatican.

   [3] This overview is based on information contained in  DFAT Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China 3 March 2015 and DFAT Country Information Report People’s Republic of China 21 December 2017: See also the sources referred to footnote 2 and The Atlantic, In China, Unregistered Churches Are Driving a Religious Revolution 23 April 2017, >

   Religious groups that fail to affiliate with one of the five official patriotic associations are considered illegal. However, SARA permits friends and family to hold small, informal prayer meetings without official registration. This has led to the proliferation of a sizeable unregistered Christian community in both rural and urban China.  Generally known as ‘house’ or ‘family’ churches these bodies are private religious forums that adherents create in their own homes or other places of worship. Gatherings of 30 to 40 people are generally tolerated, although there have been cases of smaller gatherings attracting negative attention. 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.

10. DFAT’s view that small (and some large) unregistered churches can and do operate in China is supported by other reports. For example, according to an article published in The Atlantic magazine in April 2017, Protestants who worship in non-government churches outnumber those who attend government churches two to one. The article suggests that such churches often operate publically without experiencing problems.

11. Members of both unregistered and registered religious organisations can face adverse attention if they are perceived to have links with foreign influences, are critical of the government, advocate for issues considered political or sensitive, 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. Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers.

12. A number of specific religious groups such as Falun Gong and the Almighty God church are viewed as cults and banned. The Criminal Law of the People’s Republic of China provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations.

13. According to the DFAT Thematic Report Fujian Province (16 December 2016) Christians in Fujian have greater freedom to worship as they please than in many other areas in China. While accurate data is not available, estimates suggest that about 1.88 million people attend registered Protestant churches and 908,000 attend registered Catholic churches, while a further 1.57 million worship at unregistered Protestants churches and one million worshipp at unregistered Catholic churches.  Some contacts consulted by DFAT questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy as members of a congregation will often move between the two.

14. Members of registered churches in Fujian openly practise their faith and local authorities rarely interfere directly in the operation of these churches, although churches must conform to a range of rules and restrictions. Members of these churches who publicly challenge the authority of the Chinese Communist Party could attract overt attention from local authorities, but most likely to affect leaders of large congregations.

15. Unregistered churches are subject to less government control, but at greater risk given their unregistered status. The treatment of people who attend unregistered churches varies, but according to information provided to DFAT by people in China, local authorities in Fujian generally tolerate the operations of unregistered churches which operate discreetly. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down/repressed by local authorities. However, unregistered churches, or an individual perceived to be associated with an unregistered church, which engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, would likely be exposed to harassment, raids and destruction of property, pressure to join or report to registered churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches than individual worshippers.

16. As noted above, the Salvation Army does not have any places of worship in China, but does have an active presence as a social welfare/development agency.

17. The Salvation Army’s China Development Department's Annual Report for 2014 to 2016[4] notes that the Salvation Army had recommenced its active presence in 1988 when a large earthquake occurred in Yunnan Province. From that time on, the Salvation Army has been responding to disaster relief and community development in poverty stricken areas in the mainland through infrastructure, construction, education, healthcare and agriculture. The report outlines the considerable work done throughout China since 1988 in conjunction with local government agencies.

    [4] China Development Department Biennial Report 2014-2016 >

    A report from the Salvation Army website[5] notes that two of the Salvation Army's leaders visited mainland China in 2016 at the invitation of the China National Christian Council as part of the Hong Kong and Macau Command's celebration of 100 years of ministry to Chinese people. These leaders [held] meetings with Shanghai Christian Council, Beijing Christian Council and SARA. Each council affirmed the Salvation Army historic and present contributions and roles within the Body of Christ in China with particular appreciation for its practical expressions of Christian faith within communities. At the invitation of a senior pastor in Beijing, the General preached holiness messages in two separate services, each attended by more than 1,000 people. Hymns sung by those present were well known to the Salvationists that gathered, including long-time Beijing residents. Many people gathered for prayer at the altar at the conclusion of the service.

    [5]General Makes Historic Trip to China >

    A report from the Salvation Army International website of 26 May 2017[6] notes that the Chief of Staff and Commissioners from the Salvation Army had visited Hong Kong and Guangzhou and while in Guangzhou joined command leaders at important partnership-affirming meetings with the Committee of the Three-Self Patriotic Movement of the Protestant Churches and Guangzhou Christian Council.

    Findings of fact

    [6] >

    I accept that the applicant has attended Salvation Army services since sometime in November 2013. I share the delegate’s concerns regarding her reasons for joining the church in late 2013. At the hearing it was established that she was located by the Department in mid-November 2013 shortly before she applied for protection. I find it highly likely that she was motivated to join the Salvation Army mainly as a means of remaining in Australia. Nevertheless, in light of her continued active participation in the services and the evidence from other members of the church regarding her participation, for the purposes of this decision I accept that she is a genuine member of the Salvation Army. However, as discussed below, I found aspects of her evidence regarding her involvement in Salvation Army activities in Australia unpersuasive.

18. In her submissions to the Department the applicant indicated that she was dedicated to the Salvation Army and objected to state registered churches in large part because the Salvation Army had been banned and members were forced to join a state registered church or face imprisonment. However, after being advised at the hearing that the Salvation Army encouraged members to attend registered churches in China she claimed that she was a Christian first and a member of the Salvation Army second and would only follow the recommendations of the church if they were in accord with her own views on the duties of Christian contained in the Bible. I believe that the applicant modified her evidence after being advised that it appeared that members of the Salvation Army did not face problems in China.

19. I also found the applicant’s evidence regarding her involvement in proselytising in Australia to be lacking in credibility. When asked about her activities she initially spoke about participating in Salvation Army youth and fellowship activities, participating in occasional choir performances and chatting to people who attended the Salvation Army welfare centre at which she volunteered. After a break she added that most days she approached people when she went shopping and spoke to them about her religion. I find this claim implausible. Furthermore, if this was true I believe that the applicant would have mentioned it when first asked about her proselytising actives. I believe that the applicant added this claim in an attempt to strengthen her application for protection in Australia.

20. After considering all of the relevant evidence, I accept that the Applicant is a member of the Salvation Army, that she attends services and activities organised by her church and that she has had some minor involvement in fundraising and public events such as participating in performances of the Salvation Army choir. However, while I accept that she may have chatted to people who do not belong to the Church about her religion when carrying out her volunteer activities at a Salvation Army institution, I do not accept that she regularly proselytises publically to people who do not belong to her church.  Furthermore, I find her failure to engage in these activities in a regular or organised fashion in Australia indicates that she does not view proselytising as a central or essential part of her Christian faith and practice and I do not accept that she would seek to engage in public proselytising if she returned to China.

    Consideration of the applicant’s claims regarding religion

21. Persecution for reasons of religion includes a prohibition on the practice of a particular faith. It may also involve prohibition against, restrictions on, or punishment for, a particular religious practice.[7] In cases of this kind, resolving the question whether the individual Applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[8]

    [7] This might include a fear of punishment for practising a religion in a manner made unlawful by the laws of the applicant’s country: See Wang v MIMA (2000) 105 FCR 548. See also Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (Hill, Whitlam & Carr JJ, 10 February 2000) per Hill J at [41] and per Carr J at [57]. Zheng was applied in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001). Cooper J stated: ‘If properly characterised the conduct [by a State] amounts to no more than governance of the church involving no prohibition on the practice of a persons’ religion, such conduct will not for that reason alone amount to persecution for a Convention reason’ (at [18]). Note however, the Full Court in Wang distinguished Zheng on its facts. There may be a distinction also between an inability to practise religion in a particular way and a prohibition on that practice. In DZABG v MIAC [2012] FMCA 36 (Brown FM, 25 January 2012) (undisturbed on appeal: DZABG v MIAC [2012] FCA 827 (Dowsett J, 7 August 2012), the Court drew a distinction (at [74]-[75]) between circumstances such as those in Wang where the applicant was forbidden to practise his beliefs in the manner of his choosing, and those in the instant case, where the applicant, a Kuwaiti Bidoon of Shia faith, was unable to practise his religion in public due to the absence of a place to do so, rather than any prohibition on the practice of that religion.

    [8] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

1. The applicant claims she is at risk of serious or significant if she returns to China because she is a Christian and belongs to the Salvation Army, because she would not be able to practise her religion in manner she wishes and because she would engage in unacceptable activities such as proselytising.

2. It is clear from the evidence set out above that there are millions of practicing Christians in the applicant home province of Fujian and that the overwhelming majority do not face serious or significant harm as a result of their beliefs and practices.  While mere association with banned religious groups can cause problems in China, there is nothing in the evidence before me which suggests that the applicant would be at risk of harm on return to China because she joined the Salvation Army in Australia and has attended religious services and other activities of the church since 2013. I do not accept that the applicant faces a real chance of suffering serious or significant harm if she returns to China because of her association with the Salvation Army in Australia.

3. The applicant claims that she would not be able to practise her faith in China because she does not believe that state registered Churches are genuine Christian places of worship and because she believes that proselytising is required by her faith and proselytising is not permitted in China.  As discussed above, I did not find the applicant’s objections to attending a state registered church entirely convincing and find her lack of involvement in public proselytising in Australia indicates that she does not personally view this as an essential part of her religious practice.

4. In any event, as discussed above, there are numerous unregistered house churches in Fujian which are not directly controlled by the government and which, in most cases, are able to operate with a considerable degree of freedom. While I acknowledge that the applicant enjoys the friendship and support which she has found in the church she currently attends in Australia and may perhaps find it difficult to establish the same personal relationships at churches in China, I am not satisfied that she would be unable to continue to practise her Christian faith or that she would be required to desist from matters relating to the central tenants of her faith or that she would face an unreasonable level of restriction on her personal religious convictions.

5. I have also considered the possibility that the applicant would engage in religious practices which would be unacceptable in China or might bring her to the adverse attention of the authorities. Christians who may face problems in China include those who engage in public proselytising or activities perceived to be critical or in opposition to the government and its policies or who hold leadership positions in certain churches. As discussed above, I do not accept that she would proselytise publically if she returned to China. There is no suggestion that she has held a leadership position in the Salvation Army in Australia and nothing in the evidence before me which suggests that she would seek or gain a leadership position in a church in China which would place her at risk of harm from the authorities. Nor is there any evidence which suggests that she has had any involvement in publicly criticizing or opposing the Chinese government or its policies in China or in Australia and I do not accept that she would engage in these kinds of activities if she returned to China. On the evidence before me I am not satisfied that the applicant would engage in religious or other activities that would bring her to the adverse attention of the Chinese authorities if she returned to her homeland within the reasonably foreseeable future.

6. I have also considered the claim that the applicant’s daughter would be banned from attending church and risks being expelled from school and experiencing other problems because she comes from a Christian family. The evidence provided in support of this claim relates to specific developments in Zhejiang Province. In the advice on the situation in Fujian Province DFAT note that the situation in that province differs significantly from Zhejiang where a number of measures had been taken against illegal religious sites. As noted above, unregistered churches in Fujian frequently operate with little or no government interference or control and I am unaware of any evidence which suggests that children of Christian families in the province are denied access to education or bullied by non-Christians. 

7. After considering all of the relevant evidence, I am not satisfied that the applicant, or her daughter, faces a real chance of suffering serious or significant harm for practising her Christian religion should she return to China in the reasonably foreseeable future.

8. In reaching this conclusion I have considered the evidence and letters of support from members of the applicant’s church.  However, in so far as they differ from advice from the Salvation Army leadership in Hong Kong and from DFAT, I consider the latter two to be better informed about the current situation in Fujian. I do not accept that the leaders of the Salvation Army in Hong Kong would have failed to provide evidence which suggested that members of the Salvation Army were at risk of harm in China if were this occurring.

9. Finally, I have noted the applicant’s claim that she would be accused of espionage if she informs her friends in Australia about the situation in China. This claim is mere speculation. It is unclear what information the Applicant could or would obtain that might bring her to the attention of the authorities in China. I am not satisfied that there is a real chance that the applicant would engage in activities in China that would result accusation of spying.

   Problems relating to the birth of the Applicant’s daughter and China’s family planning regulations

10. The applicant gave birth to her daughter at the age of [age]. At the time she was unmarried. At the hearing she stated that she had married the father of her child earlier that day. The applicant claims that her daughter’s birth contravened China’s family planning laws and said that she would face a fine because of this is she returned to China. She also stated that her parents were angry when they learned she had had a child.

11. Significant changes to China’s family planning regulations were implemented in early 2016. Changes including provisions to allow families to have two children and cancellation of forced contraception. However, social compensation fees continue to be imposed on people who breach China’s family planning regulations, including unmarried mothers. According to the March 2014 Population and Family Planning Regulation of Fujian, fees are calculated on the basis of average annual income of local residents or actual income, whichever is the greater. However, DFAT also understands that local authorities are able to show considerable discretion in charging social compensation fees, including waiving the total fee or allowing payment by installment. In March 2016, the Fujian Family Planning Association stated that if parents who had children in breach of the March 2014 Population and Family Planning Regulation of Fujian had not already received notification of social compensation fees, local authorities would not pursue the issue further.

12. As the applicant’s daughter was born in Australia and the applicant not returned to China since her birth it appears that the applicant has not been notified of the imposition of a social compensation fee and would not be liable of a fee if she returned to China. In any event, even if she and her husband are charged a social compensation fee, China’s family planning regulations are laws of general application that apply to all citizens. There is nothing in the information before me which indicates that the laws are discriminatory or that they would be applied in a discriminatory manner in the applicant’s case such that imposing such a fee would constitute persecution, nor do I consider that imposition of a monetary penalty which they could apply to pay by instalments would amount to significant harm as defined by the Act.

13. I have also considered whether the applicant’s daughter would be denied access to any rights or services in China because her birth contravened family planning regulations in place at the time. In the past, access to household registration which brings with it access to state education, medical services and other rights was denied or restricted for children born outside China’s family planning laws. However, according to DFAT in August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities not to require payment of social compensation fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant social compensation fees have been paid. There is nothing in the evidence before me which suggests that the applicant’s daughter would suffer serious or significant harm on return to China because her birth did not comply with China’s family planning laws.

14. Finally, I have noted the applicant’s evidence that her parents were upset when she fell pregnant and had her daughter. However, there is no suggestion that her parents would seek to harm her in any way because she had a child outside wedlock at a young age. While the apparent breakdown in her relationship with her parents may be upsetting for the Applicant there is nothing in the evidence before me which suggests that she faces a real chance of suffering serious or significant harm because of this. 

15. After considering all of the relevant evidence I am not satisfied that the applicant, or her daughter, faces a real chance of experiencing serious or significant harm in China because she breached China’s family planning rules by giving birth to her daughter.

    CONCLUDING PARAGRAPHS

16. After considering all of the evidence I am not satisfied that there is a real chance that the applicant or her daughter would suffer serious or significant harm if they returned to China now or within the reasonably foreseeable future. I am therefore not satisfied that she has a well-founded fear of persecution for any of the reasons in the Refugees Convention or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that they will suffer significant harm.

17. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants protection visas.

    Roslyn Smidt
    Member