1515316 (Refugee)

[2018] AATA 2456

1515316 (Refugee) [2018] AATA 2456 (17 May 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515316

COUNTRY OF REFERENCE:          China

MEMBER:Luke Hardy

DATE OF DECISION:  17 May 2018

DATE CORRIGENDUM SIGNED:     8 June 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

·In paragraph 19, the phrase “Hebei’s capital, Wuhan” is corrected to read “Hubei’s capital, Wuhan”.

·In paragraph 39, the phrase “the baptism of new Catholics in [the applicant]’s home province” is corrected to read “the baptism of new Catholics in Hebei”.

Luke Hardy
Member

8 June 2018

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515316

COUNTRY OF REFERENCE:                  China

MEMBER:Luke Hardy

DATE:17 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2018 at 10:33am

CATCHWORDS

Refugee – Protection Visa – China – Religion – Christian – Protests against expropriation of land –Claims and evidence lack credibility – Decision affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91R, 438,499

Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs, [2003] HCA 71

MIAC v SZQRB [2013] FCAFC 33

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant [is] a citizen of China. He is from Hubei. His current passport was issued in Hubei [in] 2014. He was granted a [temporary] visa for Australia on arrived in Australia on 16 December 2013. He claims to have had an earlier passport that was lost. It is assumed his visa application was made on that passport. He entered Australia on the current passport with the 16 December 2013 visa on 25 August 2014. He also carried an APEC Business Trave Card. The visa was valid for three months upon entry. [The applicant] lodged a protection visa application on 20 November 2014, around three months after arrival, and the delegate refused to grant the visa on 26 October 2015.

3. [The applicant] appeared before the Tribunal on 20 February 2018 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 his registered migration agent. The representative attended the Tribunal hearing.

   S.438(1) certificate

5. [The applicant]’s Departmental file contains a s.438(1) certificate of non-disclosure pertaining to a document that is, in fact, a working document dealing with the business matter of entering data from [the applicant]’s current passport into the Department’s electronic filing system. As the document is an internal working document of such nature, the non-disclosure certificate is invalid. In any event, this document merely repeats information found in the passport submitted by [the applicant] for the purposes of his protection visa application, and I have had no regard to it in the making of my decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

6. The main issue in this case is whether [the applicant] is entitled to protection as a refugee or, if not, On complementary protection grounds.

7. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims to the former Immigration Department

8. In his original protection visa application, [the applicant] claimed he lived at the same address in [City 1], Hubei, from [when] he was born, until November 2013. He claimed he lived at another address in [City 1] from November 2013 to April 2014 and then at another address in the same city until August 2014, when he came to Australia. He claimed he worked as an assistant to a construction field foreman in various building jobs in and around [City 1] from September 2006, [until] August 2014. He claimed he was not the subject of any charges laid or pending and was not the subject of any criminal investigations in China.

9. [The applicant] claimed his father used to work in a construction team operated by [Company 1], which closed down in 2004. He claimed that the family nevertheless continued to reside at [Company 1]’s employees’ residence until 2013. He stated that, because the residence was the property of a state enterprise, residents there had no title rights.

10. [The applicant] said an attempt to privatise [Company 1] after 2004 was unsuccessful, leading to his father losing some money in an attempted share structuring.

11. [The applicant] claimed that the state began to demolish [Company 1]’s buildings including its former employees’ accommodation in 2012. He claimed his father was not satisfied with the compensation offered to the tenants at the time and did not agree to move out. He said that in March 2013 tenants were subject of a public notice advising of imminent demolition; they were advised to make arrangements to move out.

12. [The applicant] claimed his father tried unsuccessfully to use social and political connections to come back with a better level of financial compensation, the developer of the land allegedly having better connections than his own. He claimed his father engaged a [law] firm to act for him. He claimed that utilities to the property were cut off in stages in July 2013 and that as tenants gave in houses were demolished.

13. [The applicant] claimed he complained to the demolition office and was told that the matter was one for his father to deal with. He claimed he stood his ground in the face of insults and accused the official to whom he complained of having no conscience. He claimed the police were called. He claimed he was detained for several hours by police who gave him a “service slip” in exchange for his [belongings], etc. He then gave a detailed description of a Chinese police station cell, describing the prevalence of mosquitoes and poor air quality. He claimed that after an overnight stay, he was awakened early in the morning and released, on the sole condition, evidently, that he be careful not to insult officials.

14. [The applicant] claimed his father returned from briefing the law firm and, apparently, told him to avoid being impulsive and to keep out of the matter. He claimed his father then started to organise for him to go abroad. He claimed the law firm failed to help his father obtain higher compensation.

15. [The applicant] claimed that [in] November 2013, his mother called him home from wherever he was. He claimed he returned to find his family’s lodgings demolished. He claimed his father had called the police who in response advised they had no grounds to intervene. He said the police had invited his father to list lost property. He said the demolishers had confiscated his mother’s mobile telephone and thrown it away, presumably after she had called him. He said that he was unable to find his passport and thus applied for a new one. I have noted above that the new passport was duly issued [in] 2014. The Australian visa grant on 16 December 2013 evidently occurred after the [date]  November 2013 loss of the original passport, but the application for that visa might have preceded the passport’s loss.

16. [The applicant] claimed he moved into builders’ digs at his construction site. He claimed his parents squatted over the ruins of their demolished lodgings. He claimed his father continued to petition district and city administrations. He essentially claimed he stayed out of these ongoing supplications and protests: he said his father did not ask him along.

17. [The applicant] claimed he changed construction sites in March 2014 and went to stay in the workers’ dormitory there. He claimed he shared a room with a Christian in whom he confided and who preached the gospels to him. He claimed his roommate said that believing in Jesus would help him with these issues that he was facing. He claimed he later accepted Christianity. He claimed that God’s providence had led him to meet his Christian colleague who guided him “to learn of Lord Jesus”. He claimed he found calmness through prayer. In his claims he tended to talk only about religion as a path to “calmness and quietness”: he said, “Through getting to know Lord Jesus, [he] had changed the negative attitude towards life after the incident of [his] family house being demolished forcibly.” He claimed he attended private and secret gatherings in an unauthorised house church on occasions with his roommate. Generally, he claimed he embraced Christianity, even though, evidently, he seemed to do so mainly because it helped him achieve calm through the meditational quality of prayer. He further claimed, “I felt that the justified and merciful true God gives people freedom and dignity.” He also claimed, “Lord Jesus stretched out his helping hands and shed wonderful light into my heart when I was in the lowest point in my life. I climbed out of spiritual ruins and found the true purpose and due value of being a human. Lord Jesus gave me true peace and longing.”

18. Up to this point, as far as I can see, [the applicant] did not explain why arrangements commenced in 2013 for him to leave China were seemingly so delayed after the issuing of his new passport in [2014]. He already had a Chinese passport and Australian visa back in January 2014 and his father, he said, wanted him not to involve himself in the land dispute and to leave the country.

19. In any event, [the applicant] claimed his father went to petition in Hebei’s capital, Wuhan, on [date] June 2014. He claimed his mother did not want his father travelling so far alone and asked him to go too. He claimed he and his father were stopped at [City 1] station by four men who chased them and hit them. He claimed the men handcuffed them and took them to a detention centre in [City 1]. He claimed he was released the same day. He claimed his father was held for 15 days.

20. [The applicant] claimed that after a month he obtained his APEC Business Travel Card. He claimed his father then urged him to depart China. He claimed his father said that he wanted to wait until “the time was right” before resuming his petitioning over compensation. He claimed his father was worried about him staying in China now that he was participating in an unofficial Christian church, lest it eventually get him into trouble. He claimed this is why he came to Australia towards the end of August 2014.

21. [The applicant] claimed he was currently attending a Chinese Christian Church in [Suburb 1], NSW. He said he had climbed out of spiritual ruin. He claimed that if he were to return to China he would never attend the authorised Protestant church because, deferring as it does to the Chinese government, it does not adhere to principles in The Bible.

22. [The applicant] claimed that he did not want to return to China lest he be detained as punishment for further petitioning. He claimed that if he petitioned in the compensation matter, the authorities would notice he is a Christian, and persecute him. He did not suggest how petitioning would lead to his being exposed as a Christian, let alone as a person who participated in an unauthorised church. It is possible he was implying that he would be monitored by police and thus be vulnerable to discovery. 

23. [The applicant]’s claims in his protection visa application were all entirely unsupported.

    Evidence to the Minister’s delegate

24. For the purposes of this review, [the applicant] submitted to the Tribunal a copy of the delegate’s decision record, which contains a hitherto uncontested summary of his oral claims at interview.

25. [The applicant] claimed to the delegate that development of a new residential complex on the site of the former [Company 1] employees’ accommodation had been completed. He claimed his father’s petitioning for a higher rate of compensation than offered had come to nothing. He claimed his father now lived onsite at the construction project he was overseeing.

26. [The applicant] claimed it took two weeks for him to obtain a replacement passport in [2014] after applying for it. He claimed he was not detained after the episode on [date] June 2014.

27. [The applicant] claimed he attended his roommate’s house church every Sunday from May to August 2014. He said the congregation grew from six or seven to over ten in that period. He claimed the group met in members’ houses. He claimed that when they gathered they received harassing telephone calls and had their electricity occasionally cut off. He claimed the church he attended in Sydney had teachings similar to those of the house church group in China.

28. Asked why and how he was issued with an APEC Business Travel Card, [the applicant] said his father arranged through a friend to have it issued: he said he did not know how it was done. He did not appear to suggest why, if he knew, the card was given to him. He evidently presented the card at the interview. It was evidently issued in his name with his image and correct date of birth: a copy appears at folio 2 of the Department’s file. The delegate put to [the applicant], on the basis of independent information available to the Department, that prospective bearers of such cards are required to be present for the digital portrait images imprinted in them. The delegate also put to the applicant that the card contained visible security features indicating that it was not counterfeit. The delegate thus expressed doubt that the applicant had no idea as to its purpose or as to how it was obtained. [The applicant] evidently did not respond. I observe that the card did not appear to have been obtained as a means of satisfying criteria for [the applicant]’s Australian visa as that visa had, according to his claims, already been issued the previous year. The delegate also put to [the applicant], on independent evidence, that APEC Business Travel Cards were issued by China’s Ministry of Foreign Affairs and not likely issued to construction workers. [The applicant] evidently did not respond to this either.

29. In finding that [the applicant] does not face a real chance of being persecuted in China for reasons of Protestant Christian religion he delegate relied on a number of independent sources including a 2012 study from which he presented the following extract:

    The tens of millions of Protestants who worship in unregistered churches may also contribute to a civil society that offers alternative values, defends church interests, and seeks to limit state authority. These Protestants reject state registration to form autonomous congregations out of principle or for pragmatic reasons. Some remember the Mao-era persecution of Christians
    by the regime and at the hands of TSPM leaders and refuse to affiliate on principle. (79) Others are not aware of religion regulations or cannot register because no TSPM association exists in their area…

    What does this analysis of Protestant Christian churches and their regime interactions tell us about civil society development in China today? First, unlike the most tightly constrained social organisations such as workers’ unions, religious organisations of all types have flourished in number as religious membership has skyrocketed to hundreds of millions of adherents, with fewer restrictions than some other types of civil society groups face… Second, and related to the wide diversity of religious groups, they play a range of roles as civil society groups, often complementary to state power, sometimes bolstering regime rule, but rarely undermining it. These roles are partly shaped by the authoritarian political order, which reflects the Chinese Communist Party’s continuing ambition to legitimise and dominate public expressions of religion, even if that domination is less (and less often) coercive than before and allows for much organisational manoeuvring by religious leaders to defend particular interests under the carapace of the party-state. The shifting management strategies of the party-state lead to Protestant churches operating on a continuum of state legitimation, from legal registration on one end to “tacit approval” in the middle, all the way to banning on the other end. Taking into account the state’s tacit recognition (and the registration of churches under weak associations), it appears that the formal status of church registration may no longer indicate much about the orthodoxy or political loyalty of a congregation in question. Third, as the Protestant population
    becomes younger, more educated, and wealthier, Protestants are becoming more ambitious, resulting in the emergence of a new type of high-status urban church in major cities nationwide. These churches eschew the small and secretive format of traditional house churches in favour of open meetings, large congregations, and unregistered gatherings aimed at shaping society. Among these high-status urban unregistered churches, leaders of flexible and yielding urban churches exhibit a non-confrontational, “respectful” approach in dealing with party-state cadres, avoid drawing sharp lines, and appear more willing to accept officials’ restraints while still reserving room to manoeuvre and continue religious activities in ways not too dissimilar to those of leaders of other religious groups in China. These flexible Protestant leaders suggest that nothing inherent in the Protestant church[-]state relationship requires confrontation. At the same time, a resolute, more assertive set of urban church leaders with foreign ties displays characteristics of democratic civil society that may undermine the political order by defending
    

    [1] Valla, Carsten T., “Protestant Christianity and Civil Society in Authoritarian China: The Impact of Official Churches and Unregistered “Urban Churches” on Civil Society Development in China in the 2000s,” China Perspectives 2012/13, 2012, pp 43-52 

    church activities in ways that challenge church registration policies. In so doing, these resolute church leaders implicitly seek to limit state authority over religion and, by extension, over all of society…[1]

30. The delegate had regard to another article[2] published in 2011, from which he quite selectively quoted:

    There are tens of thousands of unregistered churches in China, most of which carry out their business with little if any trouble from the local authorities. However, in a small number of cases, governments have taken sometimes quite severe actions against particular churches resulting in their closure; the destruction of church property; the confiscation (or looting) of church assets or materials; their fragmenting into much smaller congregations; and even the jailing of leadership personnel…

    Thus, many officials see religious practice as a good thing, and some are even practitioners themselves. In addition, there are what are called “cultural Christians”: that is, those who do not believe in God but are nonetheless positively disposed toward Christian ethics and values … Although officials are obliged to tell house church ministers or leaders periodically that they must register, they do not force the issue, and some simply go through the motions: One minister said that in his area, the police come around to inspect unregistered church premises on Wednesdays rather than Sundays so they can report that they had inspected and found no illegal religious activity taking place. As another put it, “local officials have two faces …,
    

    [2] Schak, David C, “Protestantism in China: A Dilemma for the Party-State,” Journal of Current Chinese Affairs 2/2011, pp. 71-106

    one they show to their superiors, the other they show to those whom they govern”.

1. The same source states that policy regarding unregistered churches has been relatively more strictly observed in northern provinces like Hebei at times in the past. However, it also says the following:

   … in light of what I was told in interviews and conversations with persons in the unregistered church movement and by scholars and what is available in documents, we arrive at the following factors…

   First is the nature of the Chinese government. Despite its enormous power, it is insecure... It sees the maintenance of party control as a core interest …, making it an existential issue for China, but for a variety of reasons it feels very threatened: 4 June, the collapse of the Soviet Union, the rejection of communist party governments in former Soviet European satellite states, the colour revolutions, and the problems caused by growing inequality in China itself. It is thus obsessed with stability, and for that reason it seeks a high level of control. It attempts to achieve this control by providing full employment, offering opportunities for the elites to collect rents and enjoy privileged market positions (Pei 2006), and crushing dissent and nipping perceived threats in the bud. Moreover, particularly at the local level, it reduces the possibility of incidents by not interfering in people’s activities as long as it perceives no threat to stability, even if these activities are not in accordance with regulations.

   Second, as a general rule, size matters. Several unregistered church leaders said that 30 members meeting in one venue was the limit, and unregistered churches often divided their congregations into multiple meeting points to prevent any one meeting point from exceeding that number (cf. Peng 2009). Related to this are official misgivings about networks of churches, particularly those that cross provincial boundaries. The government does not fear small groupings, but it does not want large organizations of people that might become a force against it.

   Third, the authorities much prefer house churches to be inconspicuous. This is partly a matter of congregations remaining small and meeting in someone’s home and partly one of avoiding central locations. According to Shen Helin – the pen name of a well-educated and knowledgeable underground seminary teacher in the Yangzi region – governments such as Beijing’s prefer that house church congregations find places to meet on the outskirts of the city rather than in its centre (personal communication, 7 October 2011). This preference for inconspicuousness is one of the reasons religious groups cannot participate in philanthropy
   as religious groups but must do so as individuals or as NGOs. For example, Taiwan’s Buddhist Compassion Relief Tzu Chi Foundation dropped “Buddhist” from its name in China in order to become a registered philanthropic organization.

   Fourth, the central government can apply a lot of pressure for a general crackdown and far more pressure to suppress a particular group or individual. Provincial governments may also force local governments to take action. For example, a Catholic student at Xiamen University
   reported that the Catholic students, led by local priests, have an annual Christmas Mass and celebration, but in 2009 the nearly 300-strong gathering was broken up by police; priests and student leaders were detained for several hours and the priests eventually fined. News of this large gathering had reached the provincial government, which ordered that local officials act. Nevertheless, it is usually local officials who decide whether to initiate actions against particular churches, and local officials have their own agendas. These include wanting to have a good performance appraisal. Most important in these appraisals are economic development
   and maintaining order at the local level. Enforcing religious policy is not a major priority and wins few points; moreover, enforcing it (for example, closing down an illegal church) may meet with resistance from the worshipers and cause unrest, which would result in a poo performance appraisal ... Thus, especially if a bond of trust exists between local officials and house churches, there is no reason for the authorities to do any more than is absolutely necessary. Where house churches have been operating for several years and are not seen as threats to social stability or may even be regarded as beneficial to it, most local officials will leave them alone. According to Xing, this is indeed the case:

   The reason why the party-state has changed its view of religion […] is
   that in places with a high proportion of religious believers, the crime
   rate is generally low, and local cadres have already expressed approval
   of this. Faith has ameliorated the moral problems affecting society
   under the impact of secularism. Since religion can make people more
   virtuous, maintain social stability and help to reduce crime, it has been
   able to become a part of the construction of spiritual culture (Xing
   2003: 23).

   …

   However, officials differ from place to place in how they treat “illegal” religion…

   [Tribunal’s emphasis]

2. The delegate also relied on information in the DFAT Thematic Report: Unregistered Religious Organisations and Other Groups: China, dated 3 March 2015:

   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. The delegate generally disbelieved [the applicant] and found that his APEC card would not have been issued to him had he been a construction labourer, and one with the negative police and administrative profile that he claimed to have attracted. The delegate concluded that [the applicant] obtained the APEC card “for business purposes”.

4. Proceeding from a position allowing that [the applicant] might be a genuine Christian (which claim he doubted), the delegate confusingly presented a “real chance” finding as some kind of credibility finding: in what ought plainly to have proceeded as a “real chance” assessment, the delegate said that [the applicant]’s claims about potential future persecution were, based on his past experience in his church and independent evidence about unregistered churches generally, “not credible”.

   Independent evidence

   Land redevelopment issues in China

5. I have had regard to the following material:

   4. Treatment of Citizens who Oppose Land Expropriation

   In its 2012 report on land acquisition in China, ECRAN indicates that individuals whose land is expropriated by the Chinese government "are required to follow the decisions, terms of compensation and relocation plan that have been devised by the local government without their prior consent" (July 2012, 7). An article published in the China-EU Law Journal by Chung Peng, a postdoctoral fellow at Peking University Law School, similarly states that county governments decide how much compensation is paid in individual expropriation cases and that it is "not uncommon that they intentionally underestimate the figure in order to suppress the amount of compensation" owed (Peng 14 July 2015, 173, 182). ECRAN indicates that some individuals have reported local governments leasing their land to developers "without informing or compensating" them (ECRAN July 2012, 7). The 2012 report further notes that on average, a household receives compensation of RMB 76,271 [C$14,220], which covers basic needs for 3 to 4 years; this compensation is prone to "run out" without "healthy investment channels, high inflation and long term planning" for farmers (ibid. 11). The source further notes that a '"significant percentage" of farmers are unable “to compete in the tightening urban labour market, given their age and skill level" (ibid.).

   In 2012, AI reported that state land expropriation "has resulted in deaths, beatings, harassment and imprisonment of residents who have been forced from their homes across the country, in both urban and rural areas (11 Oct. 2012). According to Freedom House, individuals who "resist eviction, seek legal redress, or organize protests often face violence at the hands of local police or hired thugs" (28 Jan. 2015). Reuters reports on an incident in February 2013 in which residents of Shangpu [a village in Guangdong province] protested the sale of a 33 hectare plot of village land to developers without their consent, and the village residents "fought and chased off several hundred men wielding steel pipes and spades who were hired as thugs to try to intimidate the villages into acquiescing on the deal" (Reuters 7 Mar. 2013).

   Sources state that individuals who have protested land expropriation have been arrested and placed in Re-education Through Labour (RTL) Centres (AI 11 Oct. 2012; ECRAN July 2012, 14), a form of "imprisonment lasting up to 3 years that does not require any legal proceedings" (ibid.). A December 2014 article by China Change states that following the expropriation of agricultural land in Beijie Village, Henan province, petitioners were "detained and mistreated," including one instance when an individual was reportedly "held in a mental hospital for over 40 days and tortured" (China Change 16 Dec. 2014). ECRAN similarly reports that provincial governments have been accused of hiring people to abduct "landless farmers" petitioning the government and send them back home or to "black jails," where allegations of torture and mistreatment have been documented by human rights organizations (ECRAN July 2012, 14).

   According to AI, in Hexia township, Jiangxi province, after petitioning the government about her eviction, one woman was "beaten and forced to undergo sterilization" in 2011 (AI 11 Oct. 2012). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

   5. Recourse Available to Individuals Evicted from their Land

   AI describes the recourse available to individuals against land expropriation as "limited" (11 Oct. 2012). Country Reports 2014 states that, despite government efforts to control illegal land seizures and standardize

   compensation, "property related disputes" persist due in part to a "lack of legal remedies or other dispute resolution mechanisms for displaced residents" (US 25 June 2015, 23). In 2012, ECRAN reported that "there is no appeal mechanism for farmers to overthrow the land acquisition decision, although farmers might negotiate better terms of compensation through village committees, protest, or by hiring lawyers" (July 2012, 7).

   According to a 2014 paper on Chinese land policy reform and forced expropriation published by the Centre for Comparative and Public Law at the University of Hong Kong that was written by Vince Wong, a visiting research fellow at the Centre, because the state owns urban land, "the decision to expropriate itself can never be challenged, giving authorities and private developers more leverage in terms of subsequent compensation and resettlement negotiations" (Wong May 2014, 34).

   According to AI, "[l]ocal officials continue to sanction or turn a blind eye to the harassment of residents by developers" (AI 11 Oct. 2012). The same source states that "police hardly ever investigate such crimes" and that lawyers are "reluctant to take on such clients for fear of the repercussions (ibid.). AI further notes that Chinese courts do not have judicial independence from the state and "means those that seek to challenge an eviction or seek redress have little hope of gaining justice" (ibid.)…  Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. [3]

   [3] “CHN105284.E China: Legislation and procedures regarding land expropriation in urban and rural areas; documentation issue in cases of land expropriation; recourse available to citizens who oppose land expropriation; state response to citizens who resist land expropriation (2012-September 2015),”

6. I have also had regard to the following:

   Petitions or protests against expropriation of land or property

   Sources report that the current system of addressing property disputes and other grievances between citizens and local officials is ineffective (AP 27 May 2011; RFA 22 Mar. 2011; Human Rights Watch Nov. 2009, 3). Associated Press (AP) explains that there is a petition bureau in Beijing where those experiencing problems with local officials are supposed to receive assistance from the central government (AP 27 May 2011). As the Beijing Review reports, the Chinese Academy of Social Sciences says that 73 percent of the petitions filed by rural residents are related to land disputes (6 Jan. 2011). RFA reports that petitioners have been subject to "detentions, beatings, and harassment" (RFA 22 Mar. 2011).

   Several sources report that some petitioners who seek redress in Beijing are held in unofficial "'black jails'" that provide a type of extrajudicial detention (AP 27 May 2011; RFA 22 Mar. 2011; Human Rights Watch Nov. 2009, 2). In a detailed report on China's black jails, Human Rights Watch explains that county, municipal, and provincial officials are subject to “financial and career advancement penalties” if many people from their locality petition for redress in Beijing (ibid., 3). These officials then hire security personnel and "thugs" to abduct and detain petitioners in black jails to prevent them from filing their grievances (ibid., 3). According to Human Rights Watch, detainees in the black jails are denied access to legal counsel, are subject to abuse, including "beatings, sexual violence, threats and intimidation," and are sometimes deprived of food, sleep or medical care (ibid., 4).

   The CHRD states that on 18 April 2011, police dispersed a protest group of 150 people who had been forcibly evicted from their homes in Changsa city, Hunan province, and detained seven demonstrators (20 Apr. 2011). RFA reports that on 21 March 2011, 300 rural residents protested outside the provincial capital of Fuzhou against forced evictions and land requisitions but were "violently dispersed" by Chinese security officials and "hired thugs" (RFA 22 Mar. 2011).

   According to the CHRD, "activists who organize farmers and rural residents to stand up for their land rights are routinely harassed or imprisoned" (6 May 2011). In an example of this, the CHRD provides details of a case in which a village leader, who advocated for his village's land rights, was sentenced to an 11-year prison term on charges of "'obstructing official business'," "'extortion'," and "'undermining elections'" (2 Nov. 2010). When the Jinjiang city government illegally expropriated 200 acres of land in nearby Keren Village for new building development, the village leader called together village representatives to vote on the government's plans (CHRD 2 Nov. 2010). However, when they voted against the development, clashes ensued between the workers and villagers (ibid.). The village leader was subsequently brought in for questioning and detained (ibid.). In addition to the sentence brought against the village leader, eight other Keren residents were charged and sentenced to prison terms ranging from six months to three years (ibid.). [4]

   Unauthorised churches in China

   [4] “CHN103768.E China: 2011 regulations regarding urban housing expropriation and compensation; state response to citizens who resist expropriation of rural land and urban property,” Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 6 July 2011,

7. I have had regard to the following report:

   The long-awaited revision of the draft religion regulations circulated last September was signed into law last month and will take effect February 1, 2018.

   Last autumn’s draft evoked a groundswell of concern among Christians in China, many of whom had hoped the government would provide a path toward legal status for China’s unregistered churches. The final version retains the harsh language targeting unregistered religious activities, unofficial religious schools, unauthorized religious instruction, and religious believers going abroad for training, conferences, or other activities. In keeping with the times, the regulations require that religious information services on the Internet be registered with the religious affairs department at the provincial level or above.

   An English translation of the regulations is available on the China Law Translate web site.

   The new religion regulations are sweeping in scope and, if fully enforced, could mean major changes for China’s unregistered church, not only in its worship and meeting practices, but also engagement in areas such as Christian education, media, and interaction with the global church. Yet the nature of these activities and, indeed, of much religious practice throughout China, makes enforcement extremely problematic.

   As Gareth Fisher pointed out in his 2014 study of lay Buddhist practices taking place in the courtyard of a prominent temple in Beijing,[1] much of China’s religious life occurs on “islands of religiosity” within the contested gray area between official and unofficial practices. How to define what constitutes “religious activity,” “religious sites,” or “religious content” depends ultimately on the subjective definition of officials charged with enforcing the regulations.

   Whether officials at the local level will want to enforce the regulations is another question altogether. In recent years the most common way for local police to keep tabs on leaders of

   unregistered Christian groups has been by meeting regularly to “drink tea,” an arrangement that has served both parties well. Recently an unregistered church pastor told of a conversation in which a local policeman criticized the new regulations, complaining they would disrupt the cordial relationship they had, up until now, enjoyed.

   Regulating China’s religious life using the myriad provisions contained in the new regulations seems a bit like trying to nail the proverbial Jello to the wall. Having more nails in the toolkit does not make the task any easier. [5]

   [5] B. Fulton, ‘New Religion Regulations to Take Effect in February’, China Source website, 13 September 2017,

1. I have also had regard to the following material:

   Last year two senior house church leaders were asked to give their opinions on the current trends inside China. Their perspectives highlight the differing views of China’s Christian leaders.

   Views of Pastor A

   Are Chinese Christians entering a harsh winter season?

   In recent years, much overseas media has covered stories of persecution incidents in China. The demolition of crosses has been reported extensively over the past two years. Some have even said the church in China is entering a harsh winter season. This gives an imbalanced impression that persecution is a common phenomenon in China. When we analyze the environment facing the Chinese church, we must not lose sight of the particular context of individual persecution incidents. Otherwise, we will misread the signs and miss the opportunities that the Father has been giving to the church in China of this generation.

   Overall, the fact is that some persecution incidents have occurred in recent years and still do today. At the same time, the majority of churches continue their meetings and ministries with unprecedented freedom. Let me give an analogy. The government at times arrests people who are suspected of committing financial crimes, but that does not mean the government intends to forbid all activities of the financial market. Similarly, persecution incidents happening in China do not imply a harsh winter for the church—a nationwide crackdown on Christianity.

   New measures on managing unregistered churches

   I am also aware of the spread of an internet message about four ways of managing unregistered churches:

   1. Churches that are willing to join the TSPM system and be managed by the authorities can be granted registration.

   2. Churches that decline to join the TSPM system but are willing to be managed by the authorities can have an informal registration with the authorities for reference.

   3. Churches that neither join the TSPM system nor are managed by the authorities should continue to be educated by the authorities.

   4. Churches that neither join the TSPM system nor are managed by the authorities and continue to be infiltrated by foreign forces should experience crackdowns.

   These four measures are consistent with the pattern of current religious restrictions, and I personally believe they are not merely rumors. It is common knowledge that the government conveys messages about new policies through informal channels to test the waters, in particular when those new policies are controversial and might arouse public opposition. In this way, the government may ascertain how the local churches and local authorities will respond to the new religious policies. They can then determine to what extent the new policies will be implemented.

   I personally find this new policy is not necessarily a sign of harsh winter. On the contrary, it creates even more space for church ministries. One might find the crackdown mentioned in measure #4 as very negative for the church. This is indeed the measure taken by the authorities over decades, so the church is no worse off now. However, in this generation, the overwhelming majority of churches in China are indigenous ones and are not funded by overseas entities. Overseas funding is usually taken as a sign of control and unacceptable by the government.

   Measure #3 is the current situation of most unregistered churches. The authorities attempt to educate and manage unregistered churches by having “tea meetings” with pastors. Again, this situation is no worse off than previously. As the authorities continue to dialogue with the churches, the churches can, on the contrary, grasp the opportunities to educate them about how the churches can benefit society.

   Measure #2 is a new measure that provides the opportunity for church registration which has been called for by unregistered churches for years. Measure #1 is not a preferred choice for unregistered churches.

   Personal experience of restrictions

   I, personally, feel I have less control over my church and myself because of the relationship with the authorities in recent years. My church continues services in a commercial building without any interruptions. The authorities occasionally have “tea meetings” with me to receive an update on what is happening in my church. However, these meetings are becoming less frequent now—just two or three times a year. As part of the top leadership of my network, I, of course, do not naively believe I am free to do any kind of ministry. I expect tighter surveillance by the authorities than an ordinary Chinese pastor would receive. While hundreds of thousands of church leaders can freely communicate with local and overseas parties online, I often expect irregularities with my online service or electronic devices. While most pastors are free to travel to overseas countries for church events, I pray that the organizers of overseas events will not take too high a profile and cause the authorities to hinder my travel.

   Pastor A is in the top leadership of a prominent church network in a rural area in China. He was imprisoned in a labor camp for a few years during the 1980s because he continued to evangelize under the tight religious control of the government. With the increase in urbanization, he migrated from his home village to a city and started an urban church in the 2000s. Now, for years, he has been shepherding a local church of hundreds of believers with a large proportion of well-educated young people. Like a good number of other urban churches, every week they conduct several church meetings in a rented apartment in a commercial building as well as tens of small group gatherings.

   Views of Pastor B

   Harsh winter is the right time to prepare ourselves

   Historically, Christianity has been associated with Western imperialism. It is hard for the Chinese government to forget the painful invasion of western countries since World War I, in which western missionaries were seen as collaborating with foreign powers. The pouring of funds from overseas into the churches in China in past decades caught the attention of the Chinese government. Deeply rooted in Chinese culture, the provision of funds creates a master-and-servant relationship. Thus, the image of Christianity is closely related to infiltration by foreign forces.

   Religious issues are seen as sensitive under the sovereignty of the atheistic Chinese Communist Party. The advance of Christianity in China has drawn the attention of the Chinese government, and some government officials perceive Christianity as a destabilizing factor. In addition, the Occupy Central Hong Kong incident in the second half of 2014, with Christians playing a pivotal role in its organization and actively supporting it, was seen as threatening from the perspective of the Chinese Communist Party. This has been taken as an apparent clue that Christianity could initiate and participate in social movements. That gets on the nerves of the state leadership.

   Pine trees harden during a harsh winter

   In Chinese culture, pine trees are often depicted as symbols of steadfastness and endurance while plum blossoms portray a strong personality that does not fear difficulties. When winter becomes harsher, pine trees harden even more and plum blossoms take time to flourish. We firmly believe that regardless of changing circumstances, the One who reigns over all, including our history, shall never change. Everything is in his good hand.

   Therefore, we should examine the situation and prepare for the worst. On the other hand, we should hold on to our hope that victory is a sure thing and walk faithfully with the Lord. As we revisit church history, God’s kingdom can be further expanded when his children grasp the opportunities to share the gospel during difficult times. Throughout the generations of the early church, the scattering or migration of believers helped to spread the gospel.

   Today, some worry the churches in China are not aware of potential severe persecution as they seem to take an optimistic perspective towards the signs of a tightening environment. It can hardly be imagined how they would endure, or even survive, in a tightened environment. Yet from the history of the Chinese church, we can see that harsh winters realign the churches, test their foundation of faith, and enable believers to show their faithfulness to the Lord. Because the price for keeping the faith has been raised by the authorities, the churches in China will naturally purify themselves. True gold fears no fire. Difficult times can nurture disciples that are willing to carry their own crosses. Pastors will also have to serve with pure motives, be ready to be motivated by God’s love, and to shepherd the Lord’s sheep faithfully.

   If the situation gets worse, local churches will be compelled to break up into smaller sizes. The scattering of believers will help to spread the gospel, as in the early church. As the government prepares to put a strong hand on donations, churches may face financial hardship. However, local churches will then be unable to “lay up treasures” in their bank accounts. After all, there will be no need for them to save money for establishing glamorous church buildings. As soon as donations are received, they will have to be given away—to the poor, to seminaries, and to charitable groups. This could speed up the development of church ministries in a wonderful way. The delegation of religious control to the authorities at the community level would, on the one hand, narrow the space for unregistered churches. On the other hand, for survival, local churches would be motivated to gain favour from the local authorities by doing good deeds in the community. It is time for more local churches to move out of their comfort zones to reach and serve the community, help the needy, and care for the neighbourhood—to truly become salt and light.

   Chinese churches have gone through over 200 years of ups and downs. We may see the past as a nurturing stage when believers were pampered, trained and disciplined. Now that they are mature, it is time to put their strength to the test. Learning from the historical patterns of the church, we see that passionate evangelization comes from a burning spirit; a burning life comes after the test of fire. All in all, the harsh winter is a period of trials but also a season of hope. Farmers will have the time to relax, reflect and prepare for the busy harvest in the coming spring. When the winter trial is over, I believe God will enormously revive the churches in China and charge them with the Great Commission.

   Churches in China have been abundantly equipped in the past decades; the restrictive environment is a mere, but crucial, push for them to reach their destiny in God’s kingdom.

   Pastor B is an indigenous Chinese scholar with strengths in theological education and the history of the Chinese Church. He shepherds an unregistered urban church of mainly well-educated, middle-class people. [6]

   [6] “Is Persecution Worsening? Perspectives on the Changing Religious Policy Environment in China,” China Source website, 20 March 2017,

2. The following report[7] discusses mainly the baptism of new Catholics in [the applicant]’s home province, but also indicates a viable and somewhat fluid unregistered Protestant culture in northern Chinese provinces:

   [7] “Hebei province tops China's baptism rankings,” UCA News, 8 May 2017,

   There were 4,446 new Catholics baptized in China's northern Hebei province during Easter, the highest amount in the country during the same time.

   Other provinces with over 1,000 new baptisms include 1,593 from central Shanxi, 1,327 from southern Guangdong, 1,234 from northwestern Shaanxi, 1,169 from eastern Shandong, 1,168 from eastern Zhejiang and 1,097 from central Henan.

   Hebei is the largest Catholic province in China with nearly 1 million Catholics and is a stronghold of the underground Catholic community. Shaanxi, Shanxi and Zhejiang are also traditional Catholic provinces, each with more than 200,000 Catholics.

   Eleven other provinces had a few hundred new Catholics whereas the Tibet autonomous region, where 92 percent of the population are Tibetan and the majority are Buddhist, and Hainan province had one and eight baptisms respectively.

   The church in Hainan administered baptism during the two most important church feasts each year: Easter and Christmas.

   "Our Catholics are fluid. Half of them are what we dub 'migratory birds' as they come from the north to this southernmost province only for winter," Father Zhang Wenmin of Hainan told ucanews.com.

   "They were given three month's systematic catechism education before we decided they were fit for baptism," the priest said.

   A preliminary report showed 19,087 people become Catholics over Easter as some dioceses were still compiling their figures as of April 25, according to Hebei Faith Press, which collected the figures.

   "We have tried our best to collect figures from both open and underground communities," said Father Li Rongpin, chief editor of Hebei Faith Press.

   In the statistic table, Kaifeng was the only diocese in Henan that had no baptisms. Father Han Zhentao of Kaifeng told ucanews.com he baptized two children and six adults in his parish this year but was unable to submit the figures before the deadline.

   "The growth is more or less the same as last year when I baptized 10 new faithful. Some of them were introduced to the church through their friends and some were converts from the Protestant church as they felt Catholicism suited them more," said Father Han.

   Christian scholars and official Protestant church bodies agreed that Henan province has the highest Protestant population in China. However, the estimated figure varies from two million to nearly five million as many belong to the unregistered house churches.

3. The DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China, dated 3 March 2015, presents the following information about protestant churches in China:

   Protestant Christians

   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.

   3.8 In 2013, the Zhejiang provincial government launched a “three rectifications and one demolition” campaign. According to the provincial government’s website, the campaign was launched to improve cities’ landscapes and urban planning, as well as “push economic development”. The three-year campaign requires old residential areas, old factories and “urban villages” to be renovated and for illegal structures to be demolished. As of September 2014, more than 300 church crosses had been removed under the policy, many of them state-sanctioned churches. Some media reports have speculated that the policy is an attempt to limit the influence of the Christian church. In response to criticisms about the campaign, the government has stated that the campaign had been implemented “with fairness and justice. … No matter what background [the building has], we tear down what should be torn down, with no exceptions and no sparing of feelings”. The Zhejiang chapters of the Three-Self movement and the Christian Council have also urged believers to “obey the government …in order to establish a good image for Protestantism”.

   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.

   3.10 DFAT is aware of a number of police raids imposed on at least eight unregistered Protestant churches in Guangzhou in September 2014. In 2013 unregistered churches in Shandong, Inner Mongolia and Xinjiang were forcibly closed after they refused to register with the state-sanctioned Three-Self Patriotic Movement (TSPM).

   3.11 One of the largest house churches in Beijing, the Shouwang Church, has repeatedly resisted attempts by the government to register with the TSPM (the congregation numbers in the thousands). Members collected US$6 million in donations to purchase a place of worship but the sale was cancelled following pressure by the authorities. An attempt to rent a large conference room was also cancelled some months after the initial proposal had been agreed. Members eventually started to hold outdoor worship services.

   3.12 Members who have persisted in attending worship services at the Shouwang church-designated outdoor venue have been subject to repeated detention, intimidation and harassment. Five church leaders have reportedly been under house arrest since 2011. The church’s website is frequently blocked. Credible sources have told DFAT that members have repeatedly been detained for five and seven day periods but had received relatively good treatment in detention because they had been peaceful and cooperative with authorities.

4. A recent report from Freedom House indicates that instances of persecution of Christians in Hubei province have been amongst the lowest, province by province, across China: the most recent instance cited in the report was the crackdown on the South China Church in 2001.[8] 

   [8] “The Battle for China’s Spirit: Religious Revival, Repression, and Resistance under Xi Jinping,” Freedom House, Washington DC: February 2017, p.25

   Evidence to the Tribunal

5. At the commencement of the Tribunal hearing, [the applicant] presented two documents: a photocopy of a purported baptism certificate, purportedly from [Church 1], dated 5 April 2015; and a photocopy of a letter dated 18 February 2018 from the “Chairman of [the] Executive Committee” of the same church attesting to [the applicant] having attended Sunday services there since 20 September 2014.

6. In his oral evidence, [the applicant] displayed some knowledge of The Bible and of the Christian calendar. Whereas he did not seem to know that the current church “season” or period was Lent, he seemed to understand that Easter was coming and that this was a time for reflection and repentance. He described Easter as a commemoration of the death of Jesus, but did not appear to refer to the traditional belief in the Resurrection. He correctly referred to there having been twelve Apostles and said that amongst the latter, Matthew to have been a tax collector; however, he said Peter had been a shepherd, which does not tally with his description in the gospels as a fisherman. Nevertheless, [the applicant] was able to name all four traditionally-attributed authors of the Gospels. He said, correctly according to scripture, that Jesus was born in Bethlehem and lived thirty-three years. Overall, I place no weight on any errors or shortcomings in [the applicant]’s religious knowledge, as they were small and much outnumbered by more correct information, and more importantly because genuine spirituality is widely understood to be built on much more complex factors; the questions I asked were quite random ones in any event.

1. I put to [the applicant] that Christian teaching such as we had been discussing is also evidently provided in the authorised Protestant Church in China. In reply, he said that he had not attended any government-sponsored church in China. He said that state-authorised churches in China are not authorised by God. I asked him how he had arrived at this view and he said that when he had asked the friends who welcomed him to their house church why they did not attend the state-authorised church they had told him that they did not consider the state-authorised church a genuine church. He said they told him that the government intervenes.

2. I asked [the applicant] why he had possessed a passport prior to the one on which he came to Australia, and he said that he obtained the new one after his home was demolished in November 2013. I repeated my question and for the second time he did not answer the question on its point. I asked again and he said his father wanted him to leave China. Ultimately he did not provide a direct answer to this question about his previous passport.

3. I asked [the applicant] to tell me when his previous passport, the one lost in the demolition had been issued  and he said he could not recall. I asked him if it might be months or years before the loss and he said it had probably been issued several years before then. I asked him why he had applied for that passport possibly several years before his family’s clash with the authorities and, in reply, he said that his father had predicted at the time of the issuing of the first passport that he would eventually not be treated fairly over the redevelopment plan for the workers’ lodgings because he had no title over the property in  which he lived. He said that all those years before, his father “knew smart people prepared for various escapes” and thus arranged for him to have a passport just as an “early preparation”. However, he seemed to contradict this somewhat when he said that his father was optimistic, at the time, about the property compensation issue. I therefore put to him that he had just told me his father arranged for his first passport, possibly years before November 2013 because he was essentially pessimistic about the property issue. In reply, [the applicant] said his father was optimistic up until around March 2013. None of his evidence helped to explain consistently or otherwise satisfactorily why he had obtained a passport some years before  the alleged November 2013 incident. However, [the applicant] then went on to say that the issuing of his original passport was arranged by his father “before March 2013”, which was not years before November 2013 but a few months, adding that he could not remember quite when.

4. [The applicant] confirmed that the conflict over the land did not begin until March 2013 although, he said, there had been unconfirmed rumours of a possible land resumption circulating back in 2012. I put to [the applicant] that if his passport was issued several years before November 2013 it was hard to see that its purpose had anything to do with the land and compensation dispute. [the applicant] said in reply that his own focus at the time of the dispute “was different” and that there might be something wrong with his memory, and I have considered that.

5. [The applicant] confirmed that he lodged his original protection visa application through his migration agent three months after arriving in Australia. He said it took some time to prepare his protection visa application. That said, I note that he provided no supporting material in the course of his protection visa application, either before or after his protection visa interview. When I asked [the applicant] about this, he said that before he came to Australia he had not yet genuinely embraced Christianity. He said he only became a genuine Christian after coming to Australia, and therefore then lodged his protection visa application. He said that it was only after he came to Australia that he was baptised.

6. I asked [the applicant] how the author of the 18 February 2018 letter was able to be precise about his first church attendance on 20 September 2014, and he said that newcomers to the church attend a formal reception. He implied his name was noted on that day.

7. I queried [the applicant] about how and why this evidence was not presented to the Minister’s delegate at the initial protection visa interview. In reply, he said he forgot. I put to him that he had a migration agent at the time, and asked how he had still not prepared evidence to help his case before the delegate. In reply, he said he really forgot to provide evidence. He said the delegate did not believe him. I asked if that situation did not provoke him and his advisor to offer to submit supporting material after the interview, and he said it did not. He went on to indicate that he did not want at the time to submit self-serving evidence. He also said that at the time of the protection visa interview, he was not thinking about whether he was a “qualified” Christian or not, and therefore did not think too much about his religious claims. When I asked him to explain this more clearly he said he felt that, around the time of the protection visa interview, he felt his behaviour was not good in the eyes of God, making him feel “regretful”.

8. I put to [the applicant] that his contact with, and baptism in, [Church 1] was conduct engaged in whilst in Australia that I was obliged to consider having regard to s.91R(3) of the Act as it stood at the time of his protection visa application. I described to him this section of the Act:

   For the purposes of an application of this Act and the regulations to a particular person:

   (a)       in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)       the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

9. In response, [the applicant] said that back in China he still doubted he was a genuine Christian, and, although he met a Christian after his home was demolished, he was even still doubtful about Christianity as something to embrace. He said that after he came to Australia he joined a Christian community in Sydney and only then became a genuine Christian. He said that, after this, he then submitted his protection visa application. He said he was not baptised until after he lodged his protection visa application and that this meant that he did not get baptised in order to lodge a protection visa application. I note, this notwithstanding, that [the applicant] purports to have first affiliated with the church before lodging his protection visa application. It was not clear, from his evidence, that his reliance on this chronology resolved potential concerns about his good faith in affiliating with the church here in Australia, given his new claim about not having believed he was yet a genuine Christian back in China. I note that in his protection visa application, he indeed claimed that he had been a genuine Christian back in China before even coming to Australia and even considered this a reason to flee the country lest his profile as a Christian exacerbate punishment he might receive in the event of continuing to protest for demolition compensation.

10. None of [the applicant]’s evidence suggests that the church community he claims to have joined in China has ever faced any serious harm, either for being Christians, or for meeting for prayer in private, small groups in houses, or for any other potentially relevant reason.

11. I asked [the applicant] if he could provide any material evidence supporting his claims about the dispute and the treatment he received as a result of it. He said he would like to be able to present some evidence except that the police are scared of issues like this being disclosed to the media as the land resumption in his family’s case was not legal. This claim struck me as odd, as [the applicant] had told the Department and me that his father had no legal tenure in the property his family occupied on the site in dispute. The essential issue in dispute was not the ownership of the land or the legality of the redevelopment but the amount of compensation offered to former employees of the long-defunct [Company 1] enterprise. I asked [the applicant] if he had been given any papers by arresting police and he said that he really wanted to be able to submit some but there were none to submit due to the police, afraid of public scrutiny in China, having issued him with no papers at all at the time of his detention. This claim directly contradicts a claim [the applicant] made to the Department about having at least been issued with paperwork in the form of a receipt at the time of his arrest and detention.

12. I asked [the applicant] where his parents now reside and what they are doing. He said they now rent a small house in a village [near] [City 1]. He said his father, aged [age], works for a privately-owned [business], as he has been doing since the [Company 1] closed in 2004. He said his mother is a housewife. He said he has one younger sister who is working for a privately-owned [company], residing in its factory dormitory in Jianxi province.

13. [The applicant] told me that when he applied for his [temporary] visa for Australia he presented his passport and APEC Business Travel Card for identification. He confirmed that he submitted the APEC card to the Department with the intention that it be regarded by the Department as a genuine identifying document. However, he said that he had no idea how it had been obtained, as he had not himself applied for it. I put to him that the delegate had questioned his claim to have been uninvolved in the process of obtaining the card, providing him with information about the intended bearer having to be present for the taking of the photograph that appears on the card. I reminded [the applicant] that he appeared not to respond to the delegate when this had been raised. I asked him if he had not tried to find out more about how the card had been obtained or generated in the two or more years since the delegate discussed it with him. In reply, he clearly indicated that he had not made any enquiries. I asked [the applicant] why he had not done so and he said he thought that his father’s friend who had helped with the issuing of the card would not want to discuss it. He said his father told him at some stage that it was a “business secret”. I asked him why he did not give this information to the delegate and he said he had been feeling stressed at the time. He then said the interpreter at the interview had not been satisfactory. I asked him if he did not reply to the delegate, as reported, or was the victim of misinterpretation, and he said, “Both.” He did not appear to resolve this question by saying “Both”.

14. [The applicant] emphasised that there was no way he could have organised the APEC card on his own. His overall position appeared to be that it was a genuine card obtained by unofficial means.

15. I put to [the applicant] that on his evidence, his parents had returned to a stable life working and renting accommodation as in the past and that, on the face of it, the 2013 dispute might have blown over. In reply, [the applicant] said his parents were now calm about the whole thing whereas he remained relatively scared. He said he could not get rid of the memory of what happened with the police, calling the experience traumatising, and had no possessions left after the demolition. He said he would not be able to stop himself from pursuing and escalating the matter of better compensation for his father, even though his father himself no longer seeks it. He said that it will be during such a process that the police might discover or take stricter account of his being a Christian and treat him harshly in response. Here he seemed to suggest that his religious profile would be a cumulative factor in the persecution he claimed to fear, although he was no clear as to how his pursuit of the financial matter would expose the religious one.

16. I put to [the applicant] that he appeared to have abandoned petitioning some time before coming to Australia. In reply, he said that it had all already been dealt with by his father.  He said his father was now just scared of him reviving the issue. I asked him what he would do if his father questioned his judgement and told him to back away from the whole affair, and he said nothing in response. After I posited that his parents might have moved on from a futile claim over property that was not legally theirs, he said his parents do not want him to worry about them and that his father lives “OK now”. He said, however, that he does not believe his parents live, or will live, calmly, notwithstanding his having said a few minutes earlier that they do. He said that if he returns to China he will not let his father deal with the matter on his own, having just indicated that this is what he had essentially done since  before he left China.

17. I asked [the applicant] if he had any other claims or information. He said he could not get over the events of 2013 and 2014. He said that although his priest encourages him to forgive others he cannot do it. He said that he cannot live in China without the dwelling in which he lived for ten years; I considered this claim alongside evidence to the effect that [the applicant] continued to work and socialise after the demolition whilst residing in other accommodation.

18. [The applicant] then said that before he was baptised he still did not think he could put past troubles behind him, the logical corollary seeming to be that, since his baptism, he had been more able to do so.

19. I asked [the applicant]’s adviser if he wanted to make any comments and he asked for further time to lodge submissions, accepting my offer of  one week in order to do so.

20. No further submissions were received.

    Findings in relation to s.36(2)(a) of the Act

21. I accept that [the applicant]’s father sought to delay eviction in 2013 from [Company 1]’s former employees’ accommodation site in [City 1], seeking a better compensation deal than was offered at the time to tenants who were being removed prior to redevelopment of the site. Generally, [the applicant]’s evidence about this, though not supported, is quite consistent.

22. However, I give some weight in this matter to [the applicant]’s evidence of his father having proceeded and progressed economically since November 2013, in having found alternate private rental accommodation and in having continued to work in the private sector. Bearing this evidence of continuity in mind, it is not easy to accept that [the applicant]’s father acted to any significant extent on his dissatisfaction, let alone tried to escalate the matter beyond local disaffection with the process of his eviction from the former factory’s land.

23. In addition, [the applicant]’s evidence about being asked by his mother to accompany his father on a petitioning trip to Beijing is problematic as it is not consistent with his claims about his parents trying to go as far as to send him out of China to keep him away from involvement in the matter. 

24. Relevant to this, [the applicant] has given a somewhat detailed and plausible visceral account of detention conditions in in China, referring to removal of a prisoner’s (in his case, his own) shoes and personal effects, prevalence of mosquitoes and poor air quality. However, he has over time provided inconsistent evidence about never having received any documentation about his detention by police. Whereas [the applicant] claims his own detention was unofficial and notwithstanding independent evidence of unofficial “black jails” being used in cases of petitioners who escalate land resumption compensation complaints, I am not satisfied on [the applicant]’s evidence that he or his father suffered such treatment. In addition, I find that his suggestion to the effect that local authorities were fearful of being publicly associated with heavy-handed evictions and disruption or detention of protesters is somewhat far-fetched, not least when considered alongside independent country information about such situations. On a cumulative consideration of [the applicant]’s evidence about his claimed encounters with the authorities in China, I am not satisfied that he or his father were directly threatened or detained by authorities on the occasions claimed.

25. On the evidence before me, I do not accept that [the applicant]’s father tried or even needed to keep or move him away from the process of seeking review of the offered compensation amount, let alone by organising to “send” him to Australia. I give some weight to the delay in [the applicant] departing for Australia between the date by which he obtained a new passport on which to undertake visaed travel to Australia. I also give weight to his evidence about having enjoyed continued employment throughout 2013 and 2014 until he came to Australia. I give small weight, separately,  to his having been able to leave China under his own identity, and emphasise that the weight is small on its own because independent evidence suggests he would need to have been formally charged before authorities might move to prevent his departure; however, I find that the ease of [the applicant]’s much delayed departure from China contributes to the conclusion that he was not facing any potentially relevant problems with authorities in China by, and at, the time of his departure for Australia.

26. It is hard to draw any particular conclusions about the APEC card except that when [the applicant] presented it to the Department he evidently wanted it to be taken to be a genuine, genuinely generated and obtained, form of identification. The delegate made a constructive finding to the effect that [the applicant] obtained the card for business purposes in Australia, without providing a detailed explanation for such a conclusion, and without appearing to consider whether the card might have been obtained to help [the applicant] support his application for the specific kind of “[temporary]” visa he used in order to get here, irrespective of any genuine interest in conducting business here. On the evidence before me, I accept that family-friend connections might have been relied upon to help [the applicant] obtain the APEC card and I find that, given other problems in his evidence, it is hard to believe he has gone on for so long knowing nothing about how or why he obtained it. In any event, I do not draw any negative conclusions about [the applicant] obtaining, receiving, bearing or presenting that card. I think the delegate put too much weight here on what might, in another context, be called a bit of a “red herring”. If anything, I find that [the applicant] presented the card to the Department in a genuine attempt to co-operate with the identification requirements it places on protection visa applicants.

27. I give some weight in this matter to [the applicant]’s evidence about not having taken any active interest in the purported compensation issue because the matter had all been “dealt with” by his father. Whereas I can accept that [the applicant] was not happy with his family’s eventual eviction or with the terms offered, I find that [the applicant] did not and will not protest, let alone try to escalate the issue of, unsatisfactory compensation for his family in the matter of the expropriation of the former factory’s employee lodgings. I find that he will refrain from doing so, in the event of returning to China, not because he fears persecution but because he is not genuinely interested in doing so.[9]

    [9] Ref. the High Court of Australia in the matter of Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, type="1">

28. [The applicant] claims he became attracted to his colleague’s Christian church primarily out of a need to find calm and love after the trauma of being harassed and detained by the police over his advocacy for his family. Since I am not satisfied that [the applicant] suffered significant confrontation with Chinese authorities, let alone the harm he claims to have suffered, it follows that what he holds to be the primary motivation for exploring and embracing Christianity in China is unreliable. Meanwhile, in his initial claims to the Department and his evidence to the Tribunal, [the applicant] has been markedly inconsistent as to whether he really began to believe in Christianity back in China or genuinely embraced it. Considering his evidence cumulatively, I am not satisfied that [the applicant] was involved in a Christian church, authorised or unauthorised, back in China. I find on the evidence before me that [the applicant] did not begin to associate with Christians until he came to Australia.

29. I accept that [the applicant] was baptised in [Church 1] in April 2015. I accept that he wold have been affiliating with that church for some time before being baptised there. He did refer to having begun to attend that church in his original protection visa application. I am thus troubled by his explanation for not having provided to the Department such evidence as was more recently presented in the 18 February 2018 letter, because he said that, at the time of his protection visa interview in 2015, he was not thinking about whether he was a “qualified” Christian or not, and therefore did not think too much about his religious claims. By this time, I note, according to other evidence, he had evidently been both a baptised Christian and regular Sunday service observer who had made Christianity the main claim in his original statement to the Department. Whereas it is corroborated that [the applicant] has been associated with [Church 1] since 2014 and notwithstanding that, one, he was baptised in that church in 2015, and, two, he displays some Biblical and catechetical knowledge, I am not satisfied that he is a genuine Christian. On cumulative consideration of the evidence, I find that he initially engaged in affiliating with [Church 1] solely for the purpose of strengthening his claim to refugee status. However, I have taken into account that the parish is a Mandarin-speaking community with which [the applicant] has had a few years of association, I am prepared to accept that his religious knowledge has come from continued society with Christians in the [Suburb 1] parish and, therefore, cannot rule out that his ongoing contact has had some genuine subjective social value. Overall, whereas, I have had regard to s.91R(3) of the Act, I do not disregard his engagement with [Church 1] in my assessment of his refugee status claims. I shall therefore proceed to consider further the question as to whether [the applicant] faces a real chance of persecution in China in the reasonably foreseeable future for reasons of being, or being perceived to be, a Christian there, and/or for reasons of having affiliated with a Christian church and its community abroad.

30. Since I do not accept on the confused and inconsistent evidence before me that [the applicant] was involved with Christianity in China, and since I find that his affiliation with Christians in Australia is not genuinely spiritual and no more than social, I do not accept that he will affiliate other than socially with Christians in China. More to the point, I find he will not associate with an unregistered Christian church or community in China for the sole reason that he is not genuinely spiritually inclined to do so, rather than refraining from doing so out of fear of being persecuted.[10]

    [10] Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, >

    Furthermore, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in China for the separate or cumulative reason of having associated with a foreign Christian church whilst residing here in Australia.

31. In the alternative, proceeding on the basis that [the applicant] has at some stage become a genuine Christian, I am still not satisfied that he has a genuine, subjective reservation about joining the state-authorised Protestant church in China. I arrive at this view on the basis of [the applicant] having said he would not follow the state-authorised church due to reservations he claims to have heard from members of the alleged house church group of his alleged colleague in Hubei: I am not satisfied that [the applicant] has personally considered the issue to arrive at his own views on the matter, and in any event I do not accept that he met the group that discussed it. Moreover, [the applicant] has not claimed that the small community he claims to have joined has ever suffered or faced any harassment from authorities, local or otherwise: he did say its gatherings were private, but given their small scale they would not need anything bigger than someone’s house as a venue for meeting. On [the applicant]’s evidence, and on independent evidence regarding authorities’ behaviour towards unauthorised Christian groups in Hubei over recent years including 2017, including reporting about local authorities’ pragmatic attitudes to small prayer groups around the size of the one [the applicant] claimed to have joined, I am not satisfied that he faces a real chance of being persecuted in the reasonably foreseeable future even if he does join a small house church group, like the one described in his claims,  in his home region in Hubei province.

32. Having considered all of [the applicant]’s evidence separately and cumulatively, I am not satisfied that he faces a real chance of being persecuted in the reasonably foreseeable future in China for a Convention-related reason. His claimed fear of being persecuted is not well founded. He is not a refugee.

33. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugee Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

    Findings in relation to s.36(2)(aa) of the Act

34. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

35. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

36. [The applicant]’s complementary protection claims rely on the same facts as his claims to protection as a refugee. As shown above, these claims have failed on credibility grounds and, ultimately, due to their not meeting the “real chance” test”.

37. In view of my findings of fact above, [the applicant]’s’ claims can no more succeed as complementary protection claims.

38. On the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [the applicant] will suffer significant harm.

39. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

40. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

42. 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.

43. 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 Refugee Convention, or the Convention).

44. Australia is a party to the Refugee 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.

45. 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’).

46. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    
    

Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 15 October 2015.