1515803 (Refugee)

[2018] AATA 2087

1515803 (Refugee) [2018] AATA 2087 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515803

COUNTRY OF REFERENCE:                  China

MEMBER:David McCulloch

DATE:1 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2018 at 2:07pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Social group – Family business owner – Member of underground church – Work issues – Fear of harm by debt collectors – Fear of harm by affected residents – Inconsistent evidence – Credibility issues – Decision under review affirmed

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

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA(1994) 52 FCR 437
SZGIZ v MIAC (2013) 212 FCR 235
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of China, applied for the visa on 7 April 2014 and the delegate refused to grant the visa on 6 November 2015.

3. The applicant had previously lodged an application for a protection visa on 30 July 2008 which was refused by the Department of Immigration, the Tribunal, and upon judicial review.

4. The applicant appeared before the Tribunal on 22 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent, who did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

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

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

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

9. 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’).

10. The current application is allowed as a result of the Federal Court decision of SZGIZ v MIAC (2013) 212 FCR 235, dated 3 July 2013. This allows a further protection visa application to be made before 28 May 2014 under the complementary protection criterion, in a situation where the person’s prior protection visa application was made and refused before the commencement of the complementary protection criterion on 24 March 2012. As indicated, the applicant previously applied for a protection visa on 30 July 2008 which was refused. This means that the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion (s.36(2)(aa) of the Act).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to DFAT Country Report – China, 21 December 2017 and DFAT Thematic Report – China: Fujian Province, 16 December 2016, copies of which were given to the applicant in the hearing.

12. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

13. The decision of the delegate with respect to the current application, a copy of which the applicant has provided the Tribunal, provides the following in relation to the applicant’s migration history and other relevant information:

    The applicant arrived in Australia on 08/12/2007 on a [temporary] visa. This visa was granted on 15/11/2007 and was in effect until 31/07/2008.

    On 30/07/2008, the applicant lodged a Protection visa application .The Departmental Delegate refused the PV application on 15110/2008.

    A Bridging visa A was granted on 01/08/2008 which expired on 17/03/2009.

    On 13/11/2008, the applicant lodged a review of the decision at the Refugee Review Tribunal (RRT). On 17/02/2009, the RRT affirmed the decision not to grant a PV to the applicant.

    On 17/03/2009, the applicant lodged an appeal at the Federal Magistrates Court seeking review of the RRT decision which was decided on 14/08/2009. The applicant's appeal was unsuccessful.

    On 19/03/2009, a Bridging visa A was granted which was valid unti123/07/2009. The applicant was issued a subsequent Bridging visa A on 23/07/2009 which was effective until 04/08/2009. The applicant was issued another Bridging visa A on 04/08/2009 which expired on 11109/2009.

    The applicant became unlawful and did not approach the Department to regularise her visa  status.

    On 07/04/2014, the applicant lodged a further Protection visa application which was found valid due to the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013).

    On 09/04/2014 the applicant was granted a Bridging visa A on 09/04/2014 which was valid until 28/07/2014.

    The applicant was granted a Bridging visa C on 28/07/2014 which was in effect until 11/09/2014. A subsequent Bridging visa C was granted on 11/09/2014 which currently remains in effect.

14. The application forms for the protection visa in relation to the current application indicate the following in relation to the applicant. The applicant was born [in date] in Fuqing, Fujian, China.  She provides no details as to her marital status. The applicant left China legally. The applicant indicates that she has no close relatives in either China or Australia (clearly not the case apparent from other evidence below).

15. Further details in relation to the applicant are provided in the protection visa application made on 30 July 2008. The application forms indicate as follows. The applicant was married [in] October 1987. The applicant lived at one address from July 1998 until December 2007 in [Fuqing] City, Fujian Province. She undertook [a number of] years of education ending at primary school level in [year]. The applicant lists past employment as ‘housewife’ from October 1987 until December 2007. The applicant indicates that she has a son born [in date] who is studying in Australia. The applicant lists a husband, and a daughter born [in date], living in China. The applicant lists [siblings] living in China.

16. In the current application, the applicant indicates that she left China [and] also to escape harm.  She says that she has been pursued by angry people whose houses have been [affected] and threatened by creditors and debt collectors. The applicant refers to being unable to claim payment for work done as required by the authorities indirectly. The applicant fears being harmed by people aggrieved in relation to losing their houses, the creditors and their debt collectors and the contractors who had connection with the authorities.

17. The applicant indicates that her family had a [business]. The business was subcontracted to [engage in work]. The main contractor was contracted with the government. Several houses belonging to local influential figures were [affected]. Protection was asked by authorities, but authorities did nothing. Therefore angry influential people demanded compensation. To avoid further conflict, this was one of the reasons that ‘we’ had to go into hiding leaving behind a substantial debt.

18. After closing the business, the contractors denied the payment for the work done. If returned to China, the applicant would be harmed by the aggrieved house owners, and creditors to whom payment has not been made. The applicant will ask for unpaid amounts as a result of which conflict will arise. The applicant will therefore be persecuted.

19. The claims set out in the first protection visa application follow (not corrected for spelling or grammar):

    My father [used] to be an [occupation] in my home village [in] [Fuqing] City, Fujian Province, PRC.

    In October 2005, the Party Secretary in the village, and the President of the Village, colluded with corrupt officials [sold] a piece farmland, which was about [number] mu, to a real estate development company at the price of RMB [amount] per mu (one mu is about [number] square meters). The total commission for the Party Secretary, the President of the Village as well as those corrupt [officials], was 15%; and it was about RMB [amount] yuan in total. However, each family, which had lost their farmland, only received RMB [amount] yuan per mu as compensation!

    At the beginning, those corrupt officials tried to make my father to stand on their side; but it was refused by my father. After that, they threatened my father in order to make him to keep his mouth shut. My father, however, could not keep silence; and he believed that it was his obligations and responsibility as an [occupation] of the village to protect the best interest of the local villages. Therefore, in January 2006, my father wrote to the Letters and Visiting Bureau of Fuqing Municipal Government, revealing the corruption of the Party Secretary in the village and the President of the Village as well as those corrupt officials in [the] Township Government and requesting the PRC authorities to thoroughly investigation the matter of selling [the] farmland to the real estate company.

    Unexpectedly, my father could not get any support from the Letters and Visiting Bureau in Fuqing Municipal Government, because those corrupt officials at the municipal government had been bribed. On the contrary, my father was alleged to frame the Party Secretary, the President of the Village as well as other Communist officials; and he was arrested by the Public Security Bureau ("PSB") in Fuqing in February 2006; and then he was detained at Fuqing Detention Centre for [number] months. Although he was released in May 2006, he suffered from serious illness owing to long-time mistreatment at the detention centre.

    Moreover, my father could not get proper medical treatment, because those doctors in the hospital were subjected to huge mental pressure from those corrupt officials in the government. Those corrupt officials were afraid that my father might not have stopped his appeals against them; and they wanted my father to die as early as possible.

    Finally, we had to transfer my father to Wuhan City in Hubei Province, where my husband worked [at] [Company 1]. in Wuhan, we got great help from [Doctor A] who worked at a hospital in Hongshan District of Wuhan City.

    Unfortunately, everything was too late; and my poor father died in October 2006.

    Although my father could not be saved, [Doctor A] became our good friend. She did her best to save my father; and particularly she knew our difficulties and almost did not allow us to undertake every expensive medical cost for my father. After my father's death, she continually helped us; and particularly she encouraged us to attend religious gatherings organised by an underground Christian church which was called [Church 1] ("the underground church").

    At that time, [Doctor A] rent [an] apartment at Hongshan District. She used the apartment as a secret gathering place for the underground church.

    I remained in Wuhan from October to December 2006. During that period, I attended the weekly worship at [Doctor A’s] place almost every week together with my husband. Both my husband and I were baptised on 25 December 2006, the Christmas Day of that year.

    In January 2007, I returned to my hometown in Fujian, because I had to look after two of our children. In the meantime, through introduction of [Doctor A], I got to know [Ms.B] who was also a Christian. [Ms.B] was in charge of an underground [church].

    There are two different types of Christian churches in China. One is called as the official church or "Patriotic church" which has been recognized by the PRC authorities; and the other is called as the unofficial church or "family church" or "underground church" which has not been recognized by the Chinese government. I have learned from [Doctor A], [Ms.B] and many of other devout Christians that a genuine Christian will not attend the official church which has completely been under the control of the Communist dictatorship; and that there is no genuine freedom of religious beliefs or religious practices in the official church.

    On the other hand, it is for the reason which our underground churches refuse to be under the control of the Communist dictatorship that our underground churches have already become the target of the government. Therefore, we have had to take care of our activities in order to avoid attention of the authorities.

    In February 2007, [Doctor A] was arrested by the PSB in Wuhan City, because her secret gathering place at her apartment in Hongshan District was discovered by the police. About 10 Christians including my husband were arrested in the same time. My husband was detained for one month from February to March 2007. He was released after his friend as well as the company where he had worked, spent a lot of money to bribe the police. Also, he had to promise not to get involved in any unofficial religious organisation or unofficial religious activities again.

    But, [Doctor A], who was regarded as a leader, was sentenced to accept three-year reform through labour; and she was sent to a labour camp in the countryside of Hubei Province.

    After that, my husband decided to arrange me to accompany my son to go to Australia, because he thought that I sooner or later would be in troubles with the authorities. He then obtained a passport for me through helps of his friend in May 2007.      

    Arranged and organised by my husband's friend, I eventually left China together with my son [in] December 2007; and arrived in Australia on 8 December 2007.

    In February 2008, my husband, who has insisted on attending underground church in Wuhan, was informed by his friend that [Doctor A] subjected to serious illness at labour camp. In order to save [Doctor A], my husband had to bribe the police and the officials at the labour camp. Finally, taking about two month period, my husband made [Doctor A] released temporarily on bail for medical treatment in March 2008; but she was still under the surveillance of the PRC authorities. She was required to report to the Hongshan District PSB once a week; and she was also not allowed to leave her living place without any permission.

    In order to assist [Doctor A] to escape from persecution permanently, my husband started planning to assist [Doctor A] to go to the overseas. He knew that it would be very dangerous. Considering his own safety, my husband also started planning his own trip to the overseas.

    It is definitely impossible for [Doctor A] to get her own passport in her own name due to her "black records" with the PSB. So, my husband had to try to find a way in Fujian to get a passport for [Doctor A] with other's name through my husband's friend. It was very difficult and very expensive. In order to support my husband's activities, I had to ask my husband to take out all of my savings in China to organise [Doctor A’s] trip to the overseas; and in the meantime, I had to ask my husband to sell some of my jewellery to get more money. Finally, my husband got a passport, which was in the different name and which had [another country’s] visa on it, for [Doctor A] [in] 2008.

    But, unfortunately, three days before that ([date] June 2008), my husband's application to Australia was refused by Australian Consulate General in Guangzhou.

    But, my husband still insisted on sending [Doctor A] to go to the overseas from Qingdao City of Shandong Province. [In] June 2008, my husband accompanied [Doctor A] to go to Qingdao; and then sent him to go to the international airport; and then my husband returned to my hometown in Fujian in order to take the opportunity to see my daughter and his families.

    Unexpectedly, on his way to Fujian, he was informed by his friend that [Doctor A] was arrested by the police at the custom of Qingdao Airport. My husband immediately got off the train in Shanghai; and then went to Zhejiang Province. Right now, he is hiding in a friend's place in a village near Ningbo City in Zhejiang Province.

    I have been informed that [Doctor A] has already been sent back to the labour camp in Hubei; and that my husband and I have been regarded as key persons to organise [Doctor A], who is a key religious dissident, to escape to the overseas; and that both my husband and I have been regarded as key members of the underground church; and that the police has gone to my husband's company in Wuhan as well as my home place in Fujian respectively for three times from June to July 2008.

    The police know my husband is still in China; and thus he has been wanted by police everywhere in the country.

    Although I am in the overseas, I have been put on the black list of the PSB. It means that I must be arrested immediately as soon as I arrive in China,

    Therefore, I must be subjected to persecution on my return.

    Independent evidence

20. DFAT Country Report – China, 21 December 2017 provides variously as follows:

    China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.

    In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.

    Several hundred million people observe to some degree aspects of Buddhism, Daoism and ‘folk religion’. Despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).

    Government Framework regarding religion

    Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.

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

    Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational. Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools. Unregistered religious organisations are illegal and vulnerable to punitive official action.

    Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.

    In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.

    Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention.[1]

    […]

    [1] DFAT Country Report – China, 21 December 2017, paras 3.15-3.24.

    Christians

    In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, 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 sizeable unregistered Christian communities 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. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.

    Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or imputed) and Protesters/petitioners).

    Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or imputed)). DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

    Protestants

    The Three-Self Patriotic Movement (TSPM), established in 1949, oversees China’s ‘post-denominational’ (i.e. non-denominational) Protestant church and its estimated 23 million members. The ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation. The Chinese Christian Council (CCC) and the TSPM supervise approximately 60,000 registered Protestant churches and several hundred thousand affiliated meeting points. Approximately 200 pastors graduate every year from China’s single seminary and 20 CCC-run Bible schools. Qualifications from foreign seminaries are not recognised in China.

    Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 60 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities. DFAT considers credible reports of authorities pressuring house churches by cutting off electricity or forcing landlords to evict members. Some members of house churches have been able to use registered church facilities for weddings, or to purchase bibles. Others have reported difficulties in hiring even commercial facilities such as hotels or restaurants because of their association with illegal churches. Christian organisations report that house church members have been arrested in 2017 for refusing to register with the TSPM, and of Christian schools being closed for ‘brainwashing’ children.

    The Zhejiang provincial government’s 2013 urban renewal campaign led to the demolition of several hundred unregistered churches. The US Commission on International Religious Freedom reports over 1,500 church demolitions or removals of crosses since 2014. The government has punished church leaders who oppose the campaign with heavy sentences (up to 14 years) on public disorder charges, as well as apparently unrelated charges such as embezzlement. Authorities have also targeted lawyers defending them (see Human Rights Defenders (including Lawyers)).[2]

    [2] DFAT Country Report – China, 21 December 2017, paras 3.37-3.42.

1. DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016 provides as follows:

   Article 36 of the Constitution of the People’s Republic of China states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. However, the establishment of government-affiliated organisations to regulate and monitor the five officially recognised religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) has, in theory (and, in some circumstances, practice), restricted religious freedom in China.

   Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.[3]

   …

   Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.

   Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.

   Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.

   Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.

   Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.

   Charismatic leaders perceived to be associated with an unregistered church that come to the overt attention of local authorities are sometimes accused of committing offences unrelated to religious practice, such as fraud or corruption.[4]

   [3] DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, paras 3.4-3.5.

   [4] DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, para 3.11-3.15.

2. In a 2016 report, Freedom House categorises provinces in China in terms of the levels of religious persecution within those provinces. Fujian and Hubei Province are both listed as ‘low’.[5]

   [5] Freedom House, The Battle for China's Spirit, 2016, p.25.

   Interview, hearing, credibility findings and assessment

3. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437 (Randhawa).

4. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa at 451, in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for [but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

5. The Tribunal is satisfied that the applicant is a citizen of China and, accordingly, her claims are to be assessed against China.

6. At the commencement of the hearing, the Tribunal asked the applicant if there was any impediment to her giving evidence. She said she was very stressed. She referred to being physically unwell for the last couple of years. She indicated that her family doctor recommended that she see a psychologist, but she could not afford to see a psychologist. Later in the hearing, the applicant said she saw a psychologist on one occasion. When the Tribunal asked the applicant the diagnosis that her doctor made in recommending that she see a psychologist, the applicant indicated there was no diagnosis, just that she should see a psychologist. The Tribunal asked the applicant if she was familiar with her claims and she said that she was.

7. As the Tribunal indicated to the applicant in hearing, it can well understand the nervousness of applicants appearing before the Tribunal, and the Tribunal indicated it would take this into account. The Tribunal is not otherwise satisfied that the applicant is suffering from any diagnosed psychological or other condition affecting her ability to give evidence to the Tribunal. The Tribunal did not consider, albeit not having medical expertise, that the applicant gave evidence in the hearing in a way that suggested any significant psychological condition.

8. The Tribunal has the following credibility concerns with the applicant’s claims.

9. Firstly, the written claims for protection clearly indicate that the problems in relation to the [work] occurred while the applicant was in China. However, in interview with the delegate, the applicant indicated that these events did not occur until 2012, after she had been in Australia for a number of years. The applicant confirmed in the hearing that the events involving the [work] occurred in 2012.

10. As noted to the applicant in the Tribunal hearing, the application form asks why the applicant left China, and she refers to travelling to Australia [and] also to escape ‘the harm’.  In the details of harm, the applicant then refers to problems resulting from the [work]. This indicates that the applicant was in China when the events occurred.

11. As also noted to the applicant in the Tribunal hearing, in the further details of the claims, the applicant indicates that the [business] was a family business and makes reference to ‘we’ in taking various actions concerning the [work] issues and having various beliefs. The word ‘we’ is used at least seven times in the description of events. This, too, suggests that the applicant herself was involved together with family members. Significantly, the applicant claims that after the claimed events ‘we’ had to go into hiding and leave a substantial debt behind. This suggests that the applicant was present in China when the events occurred, and that she herself, together with others, had to go into hiding.

12. The Tribunal indicated to the applicant that the written claims seem in conflict with the later evidence that the events did not happen until 2012. In response, the applicant confirmed that her husband was already in hiding at this point due to the religious issues, and that the applicant herself had long been in Australia. The Tribunal noted that this answer was not responsive to the question. The applicant then repeated that husband was already in hiding. After pressing by the Tribunal, the applicant agreed that her husband had not ‘gone’ into hiding after the [work] issues and that he was already in hiding. When the Tribunal asked, again, why the written claims give a different impression, the applicant indicated that her husband was already in hiding and the [work] issue is one more factor.

13. The written claims clearly state that ‘we’ had to go into hiding following the [work] issues. The Tribunal considers that this is a reference to the applicant and her husband. Given later evidence that the [work] issues occurred in 2012, it is clear, for the reasons outlined above, that this was not the cause of either the applicant or her husband going into hiding. The applicant came to Australia in December 2007; she claims to flee religious persecution. The applicant’s husband is claimed to have fled to another province in 2008, also because of religious issues, and he has remained there ever since.

14. The Tribunal considers that there is a stark inconsistency in evidence in relation to key contextual issues as to whether both the applicant and her husband were present in the locality of where the [work] issues occurred, and had suffered harm as a result, and fled.

15. Given that the written claims make multiple references to ‘we’ in suggesting that she and her husband were involved and affected at the time by the [work] issues, the Tribunal does not consider that the applicant made an understandable error writing down her claims. The inconsistency in evidence on this key issue undermines the truth of the applicant’s claims relating to [work] issues, and the applicant’s credibility generally.

16. Secondly, evidence about the applicant and her husband  [company] being targeted as a result of the [work] being a ‘family company’ was inconsistent and unsatisfactory.

17. The Tribunal notes that the applicant in the hearing indicated that it was the [company] in Hubei Province (which the applicant had been an employee of in 2006) which had been the company engaging in the [work] in 2012.

18. The Tribunal put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act that detailed written claims made as part of the first protection visa application refers to her husband working [in] [Company 1] in Wuhan, Hubei. The written statement later indicates that the company where the husband had worked had assisted in his release from detention.

19. The Tribunal noted that this statement was relevant because it made no mention of the company being one in which the husband had an ownership interest or it being a family company. The applicant responded that she did not say that it was a family company because she just said what he did.

20. The Tribunal is not satisfied with this explanation. The written claims for the first protection visa application indicate to the Tribunal that the applicant was an employee, not an owner or major shareholder of [Company 1]. The written claims, specifically, at one point, refer to the company being one who the husband had worked for, not that he was a co-owner of. The Tribunal sees no reasonable basis on which the applicant, if properly characterising the situation in her otherwise detailed written claims, would not have indicated that the [company] in Wuhan, for whom her husband worked, was a company owned by the husband together with other relatives.

21. Reinforcing the Tribunal’s conclusion, and as put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act, the applicant, in mentioning in the interview with the delegate that the company was being run in 2012 by other shareholders, made no mention that the shareholders were in fact relatives.

22. In response, the applicant indicated that she just said they were partners, not who they were. The Tribunal, again, is not satisfied that the applicant would not have referred to these other partners being relatives, if that were the case.

23. Thirdly, there are inconsistent claims that the contract with main contractor for the [work], of which the family company was a subcontractor, was with the Government. The claim that the main contractors contracted with the Government is clearly made in the applicant’s written claims lodged as part of this application.

24. In contrast, in the Tribunal hearing, the applicant indicated that there was no contract with the main contractor with the Government. Instead, the risk of harm from angry residents whose homes had been [affected] arose from the fact that there had been no Government approval. The applicant indicated that the Government was also giving them trouble.

25. The Tribunal considers that this evidence is inconsistent as to a significant contextual matter which is undermines the truth of what the applicant claims. The applicant did not provide any explanation as to the inconsistency.

26. Fourthly, the applicant gave evidence in the hearing that there was no attempt to seek protection from the authorities in relation to the [work] issues. This is inconsistent with her written claims which state that, in the past, protection from authorities had been sought but authorities had done nothing, and the applicant would not expect protection if she returns. This is in answer to the question as to whether the applicant believes that authorities in China will protect the applicant.

27. The Tribunal considers that the applicant giving contrary evidence in the Tribunal hearing to her written claims indicating that protection was sought (albeit not provided) undermines her credibility. The Tribunal acknowledges that this is a reasonably minor point, but it is considered cumulatively together with other more significant credibility concerns.

28. Fifthly, the applicant gave implausible evidence that the family home, empty since 2008, has been visited not infrequently by authorities or others who have an adverse interest in the applicant and her husband.

29. During the course of the interview with the delegate, the applicant gave evidence that there have been frequent visits to the home up until the present. She indicated that the home has been empty since she left for Australia and her husband went into hiding in 2008. The applicant seemed to suggest that the visits were a product of authorities looking for the applicant and her husband as a result of their religious activities, as well as based on issues surrounding the [work].

30. The applicant was asked to provide in the interview further details of these visits, including how she knew about them. The applicant indicated that neighbours in the vicinity of the home saw those visiting, and that the applicant was told of the visits when she would speak to her neighbours by telephone. The applicant also indicated that the visits would occur when lights were seen in the home by those who had an adverse interest in the applicant and her husband.

31. The Tribunal put this information to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act.  It noted that the information was relevant because it does not make sense that that lights would be on in the home, attracting visits from individuals looking for the applicant and her husband, if the home was empty. In response, the applicant indicated that she never previously said that the lights were on, attracting the attention of authorities. The applicant indicated that the configuration of homes where she lived, being joined together, made it easy for neighbours to see what was going on.

32. The Tribunal, having listened to the recording of the applicant’s evidence before the delegate, considers that the applicant clearly did state that the visits occurred because of lights in her home being on.

33. The Tribunal considers that the evidence about the visits has an air of unreality. It does not make sense that there would be lights on in the home causing visits, because no one was living at the home, on the applicant’s evidence. The Tribunal does not consider it plausible that there would be visits from the authorities, or anyone else, stretching over up to nine years.  The Tribunal is not convinced by claims that the applicant was in regular phone contact with neighbours who would happen to witness these various visits.

34. Sixthly, the Tribunal, even if it were to accept the applicant’s claims in the first protection visa application concerning religion as to what had happened in China, struggles to accept that the events would have resulted in the applicant deciding that she needed to travel with her child to Australia, when she did, to escape harm.

35. The written claims for the first protection visa application indicate that it was decided that the applicant needed to escape China in February 2007. This was due to the arrest of [Dr A] and her husband, who, respectively, ran and attended an underground church in a different province to the home location of the applicant in Fujian Province, where she had returned in December 2006.

36. As put to the applicant in the hearing, the detentions occurred in another province.  The Tribunal would struggle to accept that the applicant would be the subject of cross provincial law enforcement on the basis of the applicant simply being an attendee at an underground church. In response, the applicant referred to her underground church attendance in Fujian putting her risk.

37. The applicant had given evidence in the hearing about her church attendance in Fujian from her return there in December 2006 until leaving for Australia in December 2007. The applicant indicated that she attended a family gathering of between seven and 10 people in different homes of members. The applicant indicated that they never had any adverse attention from authorities because they were discreet in their activities.

1. Although the applicant indicates that she is not able to return to Fujian, if she were to return, she would wish to practise in the underground church as she did before.

2. The Tribunal discussed with the applicant the independent information contained in this decision concerning the treatment of Christian churches and gatherings in Fujian by authorities, noting the view of DFAT that gatherings in family homes of up to 50 people can generally without being closed down or repressed by local authorities. That would require participants not to breach restrictions on proselytising or political advocacy and the like.

3. In the context of the applicant being in a different province from where [Dr A] and her husband were claimed to have been arrested, and in light of evidence that the applicant was able to worship in Fujian in a small family church, consistent with independent information, the Tribunal does not consider that it makes sense that the applicant would have felt compelled, in February 2007, to leave China, for fear of harm either on the basis of what is claimed to have happened to [Dr A] and her husband in another province or on the basis of her church attendance in Fujian.

4. Before considering these six credibility issues cumulatively, the Tribunal notes the following additional evidentiary matter.

5. The Tribunal notes that the delegate, in the interview, considered that the applicant had given inconsistent evidence as to the date that the family [company] closed down. The interpreter originally indicated the applicant said that it was in 2010 that the company closed down. When the applicant gave evidence later that the company closed down in 2012, the delegate pointed out the inconsistency. The applicant insisted that she had not said that the company had closed down in 2010.

6. The Tribunal has had a Mandarin speaking staff member of the Tribunal listen to the recording of the interview. That person indicates that, although the interpreter interpreted the applicant first saying that the company closed down in 2010, in fact the applicant said 2012.

7. The Tribunal therefore considers that the applicant was internally consistent in the interview with the delegate as to when the family company closed down.

8. The cumulative impact of these six credibility concerns are significantly damaging to the applicant’s credibility. The credibility concerns are numerous and relate to issues across many different aspects of the applicant’s claims. They cause the Tribunal to not be satisfied as to any of the applicant’s substantive claims.

9. The Tribunal is not satisfied that the applicant came to Australia in 2007 in fear of religious persecution, as claimed. The Tribunal is not satisfied that the applicant’s husband was detained as a result of attending an underground church in Hubei Province or (together with the applicant) made efforts to assist [Dr A] from fleeing China, causing the applicant’s husband himself to need to go into hiding in a different province, where he has remained ever since or causing adverse attention towards the applicant. The Tribunal is not satisfied that any attendance by the applicant many years ago in an underground church in Hubei Province would cause authorities in Fujian, to where the Tribunal considers the applicant will return, to have any current adverse interest in the applicant as a result. The Tribunal is not otherwise satisfied such underground church attendance would place the applicant on any centralised database of persons of adverse interest, affecting the applicant’s re-entry into China.

10. Given the applicant’s evidence that she was able to practice in her small Fujian family church without problems from authorities, consistent with independent information, the Tribunal is not satisfied that the applicant faces any harm as a result of past practice in this province. The Tribunal is not otherwise satisfied that this family church that the applicant had attended in Fujian has subsequently come to the adverse attention authorities.

11. The Tribunal is therefore not satisfied that the applicant is at a real risk of significant harm as a result of her religious activities in China, or on the basis of her husband and [Dr A] being detained, or her husband assisting [Dr A] to flee to a different province for the reasons claimed.

12. The Tribunal is not satisfied that a family company of the applicant and her husband was involved in [work] issues in 2012, or at any other time, in the circumstances claimed, creating adverse interest from various entities and individuals towards the applicant. The Tribunal is not satisfied that the applicant faces a real risk of significant harm from: the Government; those whose properties were [affected]; owing large debts and harm from creditors; being owed and attempting to obtain money from the Government or others; or for any other reason associated with the claimed [work]. The Tribunal is not satisfied that the applicant or any family member went into hiding or felt the need to stay in hiding as a result of these issues.

13. The Tribunal is therefore not satisfied that the applicant is at a real risk of significant harm as a result of the claimed [work] issues.

14. In the Tribunal hearing, the applicant indicated that she would be homeless if she returned to China, as she is unable to return to her home in Fujian. Given the Tribunal’s findings, it is not satisfied that the applicant would be unable to return to Fujian such that she would be homeless.

15. The applicant indicated in the hearing that she has attended church [weekly] since arrival in late 2007. When asked as to documentary evidence supporting this claim, the applicant referred to having provided evidence. None of the documents before the Tribunal or on the Departmental file contained such evidence.

16. However, the Tribunal is prepared to accept, for the purpose of this decision only, that the applicant has undertaken church attendance in Australia, and that she would wish to practice in a family church in Fujian in the same manner as she did in the year or so before coming to Australia.

17. Based on evidence by the applicant that the she suffered no problems as a result of this attendance because the gatherings, and in light of independent evidence that authorities in Fujian are generally tolerant of small family church gatherings of up to 50 people, the Tribunal considers that the applicant would be able to worship in the same way in such similar gatherings on return without facing a real risk of significant harm from the authorities or anyone else.

18. The Tribunal is not satisfied, including taking into account the credibility issues identified, that the applicant has a desire to worship in Fujian in a manner other than she has done in the past, including having any intent to publicly proselytise or engage in political advocacy, or that restrictions on the activity of Christians in Fujian by authorities in any way constrains the applicant in her worship.

19. In summary, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any of the reasons claimed.

20. A determination having already been made that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    David McCulloch
    Member