1516113 (Refugee)

1516113 (Refugee) [2017] AATA 3121 (7 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1516113
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:7 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 December 2017 at 1:22pm

CATCHWORDS
Refugee – Protection Visa – China - Religion – Local Church movement (Shouters) – Whether the applicant is a genuine adherent - Witness credibility – Applicant declined to attend hearing – Limited evidence of claims – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 28 October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 17 December 2014.
The applicant attended the interview with the delegate of the Minister which took place on 15 October 2015.
The applicant was invited to attend the hearing of the Tribunal scheduled for 5 December 2017. The applicant returned the form provided to him in relation to the hearing by indicating that he did not intend to take part in the hearing. The applicant asked that a decision be made on the papers. He indicated that he had been unwell recently. The applicant made no request for an adjournment of the Tribunal hearing.
THE CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection – PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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. The Tribunal has before it DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the Tribunal can be satisfied as to the factual claims made by the applicant, and whether 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
The applicant has provided a copy to the Tribunal of the decision of the delegate which provides as follows. The applicant arrived in Australia [in] February 2012 on a TU 580 (Guardian visa). That visa was valid until [December] 2014. [In] September 2013 the applicant left Australia and returned [in] October 2013. The applicant departed Australia again [in] July 2014 and returned [in] August 2014. The application for the protection visa was lodged on 17 December 2014.
The application forms for the protection visa indicate the following in relation to the applicant. He was born on [a particular date] in Shandong Province in China. The applicant is of the Han ethnic group and is a Christian. The applicant was divorced [in] 2014. The applicant lists one address in China from 2004 until 2012, being [a particular address in] QingDao City, Shandong Province. The applicant completed eight years of education in China, ending after two years of high school in [a particular year]. The applicant indicates no university, trade or similar qualifications. From 1988 until 1994 the applicant was a farmer. From 1994 until 2012 the applicant was the owner of a [store]. From 1994 until 2012 the applicant was also a casual worker. The applicant lists a daughter in China born on [a particular date] and a son born in China on [a particular date]. The applicant lists both parents and a sister living in China.
The applicant provided a written statement as part of the protection visa application which provides as follows (not corrected for spelling or grammar):
I came from Qingdao in Shandong Province. In 2012, when my daughter came to study in Australia, I came, too, on a guardian visa. I am a Christian and attend the house church often. Actually, our church is affiliated with the Local Church and we use the Recovery Bible compiled by Brother Wetness Lee.
I used to be a superstitious person instead of a pious Christian, but my conversion to the Local Church in 2010 had greatly changed my outlook. I began to fear God and stopped indulging in cigarette and alcoholic. I devoted myself to preaching gospel. I worked hard and had initiated a lot of people into Christianity, but my ex-wife, who was as superstitious as my old self, was against my faith. The discrepancy in faith between us finally led to our divorce.
The Local Church had long been labeled by the Chinese Government as an evil cult "the Shouters". It was sheer slander and discrimination against our faith. Our church ^.was a product of the Recovery Movement in China. The bible we were using was true to the original Holy Scripture, which emphasized truth, life and Spirit. The notes to the bible written by Brother Witness Lee not only embodied the profound understandings of the divine revelation in the Scripture by generations of Christians for the last 2,000 years or so, but also had helped to give us more in-depth insights into the Scripture. It was a puzzle why such a bible had attracted so fierce criticism from the Chinese Communist Party.
Under my influence, my daughter also converted to Christianity. When we first came to Australia, we father and daughter had gone about in search of a Local Church but in vain. We tried attending other churches, but we found none of them was as fit for us as a Local Church.
In September, 2013, I took the opportunity of going back to China to attend a sermon. The preacher was invited from abroad by the church and his sermon attracted a large audience. However, the gathering was reported by someone to the local government and they sent people to have an investigation and arrest some of the listeners.
When I went to the sermon, I was given a CD — actually an electronic version of the book Morning Revival. The police came to launch an investigation into that case and ordered whoever had taken such a CD or a pamphlet of the Local Church should hand them over to the police. Anyone who had owned a Recovery Bible or a book Morning Revival should also hand them over, otherwise, they threatened, they would be punished severely and sent to the detention house if found doing so. That sermon shocked the local government and police and consequently, the preacher was expelled from the country. The government put up a reward for the information of adherents of the Local Church. The Local Church was at its lowest ebb ever and its followers went into a mad panic, No one dared to attend any gatherings. All this had convinced me that there was no sign of a significant improvement in the religious situation in China. By the end of 2013, I joined some of my countrymen in setting up a filler-in house gathering, which lasted until July of 2014 when I departed for China.
In July, 2014, during the time I was back in China to finalize my divorce proceedings, the security police summoned me for enquiries. They claimed that I was found attending the sermon and having received a sermon CD, so I had to make a full confession about that. Subjected to the political pressure and intimidation, I admitted attending the sermon but flatly denied taking any CD. The police searched my house but failed to find anything they wanted. Seeing I was lying, they blindfolded me and gave me a good beating. Finally, they punished me by keeping me in custody for [a number of] days. As a matter of fact, I had already carried the CD back to Australia the last time. Having cautioned me, the security police obliged me to sign a statement promising to denounce the cult and leave the Local Church before they released me. When I was back in Australia, I would often startle at the thought of that encounter. I was in great anxiety what might happen to my faith if I chose to return to China.
Recently, blessed by God, I learned by chance a site of a Local Church gathering. I lost no time to attend it, where we felt a profound spiritual comfort. I'd like very much to stay with it. In Australia, we were alone, but the Local Church served as an only reliable home for our souls. My parents were also the followers of the Local Church but they were said to have been arrested during [a particular period in] 2014, because they had been reported to the police when they were holding a secret gathering. The reason I'm filing this application for protection by the Australian Government is to defend our freedom of faith. I'm convinced unless the Chinese Communist Party gives up its oppressive and hostile policy against the Local Church, we can never enjoy our freedom of faith or a peaceful life. I sincerely hope my humble wish can be realized in the prayers of my brothers and sisters that share the same faith with us.
The applicant provided a form letter signed by [named individuals], Responsible Brothers of the Local Church in [a particular Australian city], dated [in] October 2015, with an indication that the applicant has been meeting regularly with the Church since November 2014. Provided are photocopies of pictures which appear to be a baptism.
Independent information
‘Evil cults’, including Local Church
Some religious groups are banned by law, designated as ‘evil cults’ (xiejiao)[1] and followers can be sentenced to terms in prison.[2] Article 300 of China’s Criminal Law states that those who participate in ‘superstitious sects or secret societies or weird religious organizations’ are subject to imprisonment.[3] A judicial explanation from 1999 described the term ‘evil cults’ as:
“those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by molding and spreading superstitious ideas, and endangering society.”[4]
[1] The term ‘xiejiao’ has been translated has also been translated as ‘heterodox teaching’, however the term ‘evil cult’ is more usually used in English now.
[2] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 4, paragraph 3 < OG54B544637
[3] US Commission on International Religious Freedom (USCIRF) 2015, USCIRF 2015 Annual Report - China, 30 April, pp 35-36 < > CISEC96CF1685
[4] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 4, paragraph 3 < OG54B544637
The following ‘Christian-related’ groups are banned as ‘cults’: the Local Church (also called the ‘Shouters’), Established King, Lightning From the East, Lord God Sect, Lingling Sect, All Scope Church, South China Church, Disciples Sect (Narrow Gate), Three Ranks of Servants, Cold Water Sect, Commune Sect, New Testament Church/Apostles Faith Sect, Resurrection Sect, Dami Evangelization Association, and World Elijah Evangelism Association.[5] The Chinese Communist Party (CCP) has a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults and its implementing “610” offices, which are tasked with eliminating Falun Gong, and addressing ‘evil cults’.[6]
[5] Yang Fenggang 2012, Religion in China: Survival and Revival Under Communist Rule, New York, Oxford University Press, pp.103–5, CIS961F9402249. The US Department of State gives variations of these names: the Local Church (‘Shouters’), Eastern Lightning, the Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and the South China Church. (US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 4, paragraph 3 < OG54B544637
[6] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 4, paragraph 4 < OG54B544637
There are no public criteria for determining, or method of challenging, the designation of ‘evil cult’.[7] Protestant communities have been concerned by some of the new ‘cults’, and particularly by Eastern Lightning because they consider it heretical, and because the vast majority of its converts are drawn from unregistered Protestant house-church congregations.[8]
[7] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, Section II, page 4, paragraph 4 < OG54B544637
[8] Dunn, Emily C. 2009, ‘“Cult,” Church, and the CCP: Introducing Eastern Lightning’, Modern China, Vol. 35, No. 1, Jan, page 107, paragraph 2 CIS26553
According to the United States Commission on International Religious Freedom (USCIRF), on 3 June 2014 the Chinese government published a list of 20 ‘cults’ and began ‘a sweeping crackdown’ against them.[9] As part of the ‘anti-cult’ campaign, the government ‘issued a directive to “eradicate” unregistered churches over the course of the next decade’.[10]
[9] United States Commission on International Religious Freedom (USCIRF) 2015, USCIRF 2015 Annual Report – China, 30 April, page 36, paragraph 1 < CISEC96CF1685
[10] United States Commission on International Religious Freedom (USCIRF) 2015, USCIRF 2015 Annual Report – China, 30 April, page 36, paragraph 1 < CISEC96CF1685
The China Aid Association also reported that more than 20,000 religious practitioners were accused of being heretics and were taken into police custody during the CCP’s ‘anti-cult’ campaign in 2014, with around 1,100 people convicted on criminal charges and sentenced.[11] China Aid described the 2014 campaign against ‘cults’ as ‘similar to the crackdown on Falun Gong in 1998’.[12] Many ‘anti-cult’ trials have been conducted in secret, with the accused forced to accept government-appointed lawyers and not allowed to hire their own legal counsel.[13] In addition, the Chinese government ‘intimidated and pressured family members of those accused of so-called “cult activities” to not raise their legal cases and incidents of persecution publicly, thus many remain unknown’.[14]
[11] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.6, paragraph 5 < > CISEC96CF1731
[12] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.3, paragraph 2 < > CISEC96CF1731
[13] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.7, paragraph 2 < > CISEC96CF1731
[14] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.7, paragraph 2 < > CISEC96CF1731
Eastern Lightning focuses on evangelising Christians because they are thought less likely than the general population to inform the authorities of their activities.[15] During 2014 the Church of Almighty God, also known as Eastern Lightning, was banned and more than 1,000 adherents were arrested and convicted.[16] In February 2015 two members of a banned religious group were executed for murdering a woman who rejected their apparent attempt to recruit her in a McDonald’s restaurant.[17]
[15] Dunn, Emily C. 2009, ‘“Cult,” Church, and the CCP: Introducing Eastern Lightning’, Modern China, Vol. 35, No. 1, Jan, p.107, CIS26553
[16] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.3, paragraph 2 < > CISEC96CF1731
[17] ‘China may increase penalties for illegal cults to life in prison’ 2015, Reuters, 24 June < CXBD6A0DE8867

In December 2012, Fujian was mentioned in relation to a nationwide crackdown on members of a Christian sect, the so-called Church of Almighty God, also known as Eastern Lightning.[18] The Longyan Public Security Bureau issued a press statement in December 2012 saying that 27 members of the Church of Almighty God had been arrested for illegal propaganda and spreading malicious rumours. Also in December 2012, six people were detained for 15 days in Gongkou village in Zhangzhou city, Fujian province for promoting the Church of Almighty God.[19] This well-known sect has been declared an ‘evil cult’ and its members have been subject to waves of arrest since the late 1990s. It has also been condemned by other Christian groups.[20]
[18] Li, Yao 2012, ‘Christians warn against cult influence’, China Daily, 20 December < > CX312592
[19] Department of Foreign Affairs and Trade (DFAT) 2013, RRT Country Information Request - CHN41439 - Family planning; Falun Gong; Christians, Returnees, and Corruption, Country Information Report No. 13/28, 3 July, CX310619
[20] See Section 5 Cults and Sects
DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 provides:
The interpretation of what constitutes a cult can vary throughout China, with some local authorities listing behaviours such as “deifying leaders, deceiving people, and spreading superstitions and heretical beliefs” as grounds for labelling a group a “cult”. Practices deemed superstitious, cult-like, or beyond the vague legal definition of “normal,” can attract harassment, detention and imprisonment by authorities (for example, in December 2012, Chinese media reported more than 1,300 people across 16 provinces had been detained for propagating rumours of an apocalypse). A joint interpretation issued by the Supreme People’s Court and Supreme People’s Procuratorate in 1999 stated that punishments for cult crimes can be applied when one “resists group bans by relevant departments, resumes banned groups, establishes other sects, or continues [illegal] activities”. Individuals who organise or use “superstitious sects, secret societies or evil religious organisations” to undermine the state’s laws or administrative regulations can be sentenced from three to seven years in prison under Article 300 of the Criminal Law. Government crackdowns against cults occur with relative frequency in China.
Groups such as the Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Zhong Gong (a qigong exercise discipline), and Falun Gong (see below) are banned by the Chinese government. The government also considers several Christian groups to be “evil cults,” including the “Shouters,” Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church.
Both registered and unregistered orthodox Christian Churches tend to deride the doctrines of “cultish” organisations as heresy. However, at the same time, government crackdowns on “cults” often bring attention and scrutiny of Christian house churches by government officials, scholars, and ordinary people who can find it difficult to distinguish between the two.[21]
…
The Shouters (also known as "Yellers", "Local Church", "Recovery Church", "Assembly Hall" and "Assemblies") are known for their habit of shouting while stomping their feet. Shouters are an offshoot of Watchman Nee's Little Flock in China and were led by Nee's student, Changshou Li who called himself, "Witness Lee". Li moved from China to Taiwan and then the United States, where he died in 1997. Li created the Shouters group in the US in 1962 which was then introduced to China in 1979. By 1983 the group had up to 200,000 followers across China. Witness Lee believed that the Shouters were the only true church; that teaching or preaching from the Bible was unnecessary; that the gift of tongues could be taught; and that the Shouters could save people by making them say "O Lord" three times.
The Shouters lost much of its popularity when it splintered into several groups including the Church of Almighty God (also known as Eastern Lightning – see below). Both it and the Society of Disciples reported having hundreds of thousands of followers in the 1980s or early 1990s. Credible sources were not able to comment on the extent to which Local Church members were still active in China.[22]
[21] DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015. Paras 3.20 – 3.21
[22] DFAT Thematic Report - Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015. Paras 3.33 – 3.34
Recent religious crackdown in China
The Country of Origin Information Services Section of the Department of Immigration and Border Protection provided the following research response to the issue as to whether there has been a recent crackdown in China on Christians including information concerning proposed laws restricting Christian practice. The following response was provided on 30 November 2016:
While most sources indicate a recent crackdown on Christians in China comprising (amongst other things) assaults on churches, church members and the imprisonment of Christians,[23] other sources suggest a more nuanced picture, noting greater freedom for small, private house churches.[24] A wide range of sources discuss the September 2016 release of draft legislation outlining a new suite of regulations governing religious practice and worship. COISS has recently released a paper on the legislation, key summary points of which are included below.[25]
[23] See for example: USCIRF 2015, 2015 Annual Report - China, 30 April, p.33 < Accessed 26 November 2016 <CISEC96CF1685>; ChinaAid 2016, ChinaAid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, 1 March, p.2 < Accessed 25 November 2016 <CIS38A80122270>:‘China Tries Christian Church Members on Spying, Illegal Business Charges’ 2016, Radio Free Asia, 19 October < Accessed 28 November 2016 <CX6A26A6E13944>
[24] US Department of State 2016, 2015 Report on International Religious Freedom - China, 10 August, p. 10 < Accessed 26 November 2016 <OGD95BE926678>
[25] See: Country of Origin Information Services Section (COISS) 2016, Situational Update – China: Regulations on Religious Affairs, 18 November, p.8 <CR943F68571>
Major government reports
The Congressional-Executive Commission on China’s 2016 Annual Report outlines a range of State actions targeting Christians throughout 2015:
During the reporting year, Chinese government and Communist Party officials continued to prevent many Protestant Christians from worshipping freely, taking a range of actions that experts believed were connected to the national-level ‘‘sinicization’’ campaign.^[131]
…
In the past year, authorities in Zhejiang province continued to harass and closely monitor Christians. In one example, officials continued to implement a campaign launched in 2013 purportedly to address ‘‘illegal structures”, but which appeared to target Christian sites and crosses, many of which were state-approved.^[144] As of September 2016, officials reportedly had removed more than 1,500 crosses (an estimated 90 percent of all church crosses in the province) and destroyed more than 20 churches.^[145] Officials also appeared to have increased government presence within churches
…
Other local government actions against Protestant believers this past year included reported threats ^[151] and a ban on religious activities, including prayer, in hospitals.^[152]
…
Authorities in other regions of China also restricted Protestant religious observance this past year. Government officials detained Protestant believers,^[157] conducted raids on church buildings and gatherings,^[158] and pressured landlords to evict churches from meeting spaces.^[159] According to ChinaAid, churches in Guangdong province were hit especially hard, with numerous house churches subjected to government raids and many ultimately closed down.^[160][26]
[26] Congressional-Executive Commission on China 2016 , Congressional-Executive Commission on China Annual Report 2016, 6 October, pp.7-9 < Accessed 24 November 2016 <CIS38A80122196>
The USCIRF’s Annual Report 2015 speaks of ‘unprecedented violations’ in the realm of religious freedom in 2014, noting an ‘alarming increase in systematic, egregious, and ongoing abuses’. It ‘recommends that China be designated a ‘country of particular concern’, noting that the ‘State Department has designated China as such since 1999’.[27] It proceeds to state that:
[27] USCIRF 2015, 2015 Annual Report - China, 30 April, p.33 < Accessed 26 November 2016 <CISEC96CF1685>
…although Christianity is state-sanctioned, the government continues to engage in severe violations of religious freedom against both registered and unregistered Catholics and Protestants. Some have characterized the new wave of persecution against Christians that swept through China in 2014 as the most egregious and persistent since the Cultural Revolution.[28]
[28] USCIRF 2015, 2015 Annual Report - China, 30 April, p.33 < Accessed 26 November 2016 <CISEC96CF1685>
The US DoS’ 2015 Report on International Religious Freedom - China provides a mixed report on the treatment of Christians throughout 2015. While noting that ‘authorities still regularly harassed and detained small groups that met for religious purposes in homes and other locations’, the reports also writes that:
Some house church members said they had more freedom than in the past to conduct religious services, as long as they gathered only in private and kept congregation numbers low. In some areas, however, authorities shut down churches that tried to maintain a low profile.[29]
[29] US Department of State 2016, 2015 Report on International Religious Freedom - China, 10 August, p. 10 < Accessed 26 November 2016 <OGD95BE926678>
The UK Home Office’s March 2016 report Country Information and Guidance – China: Christians states:
In 2014, harassment of both underground and state-sanctioned churches increased, especially in Zhejiang Province where at least 400 churches were torn down or had crosses forcibly removed and/or demolished in 2014. Hundreds of people have been detained for short periods and some remain in custody, accused under ambiguous crimes more often used to punish political dissidents. Leaders and members of both registered and unregistered churches have faced increased harassment and arbitrary arrests; typically leaders of house churches are more vulnerable to these types of charges, but in 2014 pastors of sanctioned churches also faced detention or arrest.[30]
[30] UK Home Office 2016, Country Information and Guidance - China: Christians, 11 March, Para.2.2.4, p.5 < Accessed 28 November 2016 <OGD7C848D26>
In a March 2015 report, the Department of Foreign Affairs and Trade (Australia) contextualises physical assaults on church infrastructure within official provincial-level state campaigns:
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”.[31]
[31] Department of Foreign Affairs and Trade 2015, DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China, 3 March, para. 3.8, p.7 <CISEC96CF1260>
In a slightly earlier source, the US DoS reported in 2014 that treatment of unregistered Christian groups across the country varied, ranging from tacit approval and non-interference in activities to assault, imprisonment and criminal charges:
In parts of the country, local authorities tacitly approved of or did not interfere with the activities of some unregistered groups. Guangdong officials, for example, increasingly allowed unregistered places of worship to hold services provided they remained small in scale and did not disrupt “social stability.” In other areas local officials punished the same activities by restricting events and meetings, confiscating and destroying property, physically assaulting and injuring participants, or imprisoning leaders and worshippers. In some parts of the country, authorities charged religious believers not affiliated with a patriotic religious association with various crimes, including “illegal religious activities” or “disrupting social stability.” Local authorities pressured religious believers to affiliate with patriotic associations and used administrative detention, including confinement and abuse at RTL camps, to punish members of unregistered religious or spiritual groups. While the National People’s Congress Standing Committee passed legislation in December to abolish RTL camps and state media announced inmates would be released, state media later issued a clarification that all pre-abolition penalties would be considered legitimate. Advocacy groups reported some camps had simply been re-labeled.[32]
[32] US Department of State 2014, China (includes Tibet, Hong Kong, and Macau) – International Religious Freedom Report 2013, 28 July, sect. 2, para. 4, p.10 < <OG54B544637>
Other sources
In its 2016 Annual Report, ChinaAid writes that the ‘deterioration of religious freedom and human rights in China continued at an alarming rate’.[33] ChinaAid attributed this deterioration to efforts of the Communist Party of China ‘to maintain unity outside the party’.[34]
[33] ChinaAid 2016, ChinaAid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, 1 March, p.2 < Accessed 25 November 2016 <CIS38A80122270>
[34] ChinaAid 2016, ChinaAid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, 1 March, p.2 < Accessed 25 November 2016 <CIS38A80122270>
The report notes escalating levels of persecution targeting house churches:
In summary, as part of the Xi Administration’s tightened control over society, the regime targeted religious leaders, political dissidents, human rights lawyers and activists, and NGOs for persecution. Human rights and the rule of law deteriorated to the point of bringing China back to an era of political terror. Religious persecution, especially of house church Christians, was the most severe it has ever been.[35]
[35] ChinaAid 2016, ChinaAid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, 1 March, p.4 < Accessed 25 November 2016 <CIS38A80122270>
The report lists five main categories of what it describes as the intensification of suppression of urban house churches:
1) forcibly shutting down and banning house churches and their meeting sites; 2) requiring them to disband, then apply for official registration and join the Three-Self Church; 3) exerting pressure through city inspectors, neighborhood committees and the police to force landlords to terminate leases with house churches; 4) taking pastors and other church leaders into custody for public security or criminal offenses, and raiding and confiscating church property; and 5) other means including subpoenas, fines, intimidation and cutting off water and electricity.[36]
[36] ChinaAid 2016, ChinaAid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, 1 March, p.9 < Accessed 25 November 2016 <CIS38A80122270>
Summarising what it describes as the escalating ‘persecution’ of rural house churches in 2015, the report states:
Compared with 2014, persecution of China’s rural house churches also escalated, with the government using criminal charges, including allegations of cult involvement, to detain and arrest church pastors and evangelists. Religious affairs management agencies and public security bureaus increased their scrutiny of rural house churches. In China’s southwest and northwest, local police frequently raided house church services, and the number of church assets confiscated and church leaders placed in administrative detention increased dramatically. Religious persecution was exceptionally serious in the provinces of Shandong, Jiangsu, Anhui, Zhejiang, Guangdong, Fujian, Yunnan, Guizhou, and Sichuan, and in the Xinjiang autonomous region.[37]
[37] ChinaAid 2016, ChinaAid 2015 Annual Report - Promoting Religious Freedom and Rule of Law, 1 March, p.14 < Accessed 25 November 2016 <CIS38A80122270>
Separately, in November 2016, ChinaAid reported on the ‘escalating pressure’ placed upon Christians in the northwestern province of Xinjiang:
A local Christian told a China Aid reporter on Nov. 13 that religion was a sensitive issue in Xinjiang. In the past two months, Xinjiang authorities detained or arrested dozens of Christians for holding house church gatherings, including: three Christians in Wensu County, two people from Xinhe County, three people from Baicheng County, seven people from Akesu, two Christians in Yanqi County, two individuals in Hejing County, and 16 people in the Kuerle region, 13 of whom were also physically attacked.[38]
[38] ‘Xinjiang escalates pressure against Christians’ 2016, ChinaAid, 18 November < Accessed 28 November 2016 <CX6A26A6E13988>
In October 2016, Radio Free Asia reported on a ‘nationwide crackdown on house churches not affiliated with the Three-Self Patriotic Association of government-approved churches’.[39] The article notes the ‘shrinking space’ for people with religious beliefs and ‘worsening of the environment’ for religious worship under the draft religious rules released in November (discussed below). It further reports on the trial of two members of an unofficial Protestant house church on ‘spying charges’ following ‘an ongoing crackdown on their Huoshi Church by police and religious affairs officials’.[40] The article continues:
[39] ‘China Tries Christian Church Members on Spying, Illegal Business Charges’ 2016, Radio Free Asia, 19 October < Accessed 28 November 2016 <CX6A26A6E13944>
[40] ‘China Tries Christian Church Members on Spying, Illegal Business Charges’ 2016, Radio Free Asia, 19 October < Accessed 28 November 2016 <CX6A26A6E13944>
The administration of President Xi Jinping regards Christianity as a dangerous foreign import, with officials warning last year against the "infiltration of Western hostile forces" in the form of religion.[41]
[41] ‘China Tries Christian Church Members on Spying, Illegal Business Charges’ 2016, Radio Free Asia, 19 October < Accessed 28 November 2016 <CX6A26A6E13944>
A crackdown on Protestant churches in the eastern province of Zhejiang has widened and intensified to other regions of China during the past year, church members have told RFA.[42]
[42] ‘China Tries Christian Church Members on Spying, Illegal Business Charges’ 2016, Radio Free Asia, 19 October < Accessed 28 November 2016 <CX6A26A6E13944>
In May 2016, Christianity Today reported on the widespread removal of crosses from more than 400 churches in the eastern seaboard province of Wenzhou under the orders of provincial party secretary Xia Baolong.[43] An earlier, related story from the New York Times indicates that local officials defended such actions on the grounds that the churches ‘violated zoning restrictions’.[44]
[43] ‘400 Down, More to Follow’ 2015, Christianity Today, 26 May < Accessed 28 November 2016 <CX6A26A6E13992>
[44] ‘Church-State Clash in China Coalesces Around a Toppled Spire’ 2014, The New York Times, 29 May < Accessed 28 November 2016 <CX6A26A6E13947>
Reflecting on similar instances of authorities bulldozing churches, a November 2014 article from the Financial Times reports that the ‘destruction of the Sanjiang church was the beginning of a concerted year-long campaign to rein in Christianity in the province.’[45] The article quotes Fenggang Yang, director of the Centre on Religion and Chinese Society at Purdue University, as saying ‘the party still sees Christianity as a very serious threat that it needs to suppress’.[46] The report also notes ‘growing tensions… between Christianity and the Communist government’.[47]
[45] ‘The rise of Christianity in China’ 2014, Financial Times, 7 November < Accessed 28 November 2016 <CX1B9ECAB7343>
[46] ‘The rise of Christianity in China’ 2014, Financial Times, 7 November < Accessed 28 November 2016 <CX1B9ECAB7343>
[47] ‘Church-State Clash in China Coalesces Around a Toppled Spire’ 2014, New York Times, 29 May, < Accessed 26 November 2016 <CX6A26A6E13947>
Several recent sources comment on violence targeting Christians:
An April 2016 article published by Christianity Today reports on the death of a pastor’s wife in Henan province as she ‘and her husband were buried as they attempted to prevent their church from being bulldozed by developers’.[48]
[48] ‘China Reveals What It Wants to Do with Christianity’ 2016, Christianity Today, 28 April < Accessed 28 November 2016 <CX6A26A6E6366>
Freedom House’s Freedom in the World 2016 China chapter states that ‘Some groups, including certain Buddhist and Christian sects, are forbidden, and their members face harassment, imprisonment, and torture’.[49]
[49] Freedom House 2016, Freedom in the World 2016 - China, 7 March, p.5 < Accessed 28 November 2016 <NGE43874C127>
An August 2015 report by CNN notes that ‘a video shows Christians in China’s Zhejiang province pushed back by security forces armed with batons’ during attempts to tear down the cross of their church.[50]
[50] ‘More violence against Christians in China’ 2015, CNN (IReport), 6 August < Accessed 28 November 2016 <CXBD6A0DE19016>
The World Watch Monitor - 2015 List of Violence Against Christians reported that no Christians were killed for faith-related reasons and 258 churches were attacked in the period between
1 November 2013 and 31 October 2014.[51] This quantum of church attacks marks China as the leading country in terms of attacks on churches in the reporting period.[52]
[51] World Watch Monitor 2015, Violence against Christians in the WWL 2015 reporting period (1 November 2013 – 31 October 2014): Christians killed for faith-related reasons & churches attacked, 1 January < Accessed 28 November 2016 <CISEC96CF15118>
[52] World Watch Monitor 2015, Violence against Christians in the WWL 2015 reporting period (1 November 2013 – 31 October 2014): Christians killed for faith-related reasons & churches attacked, 1 January, p.2 < Accessed 28 November 2016
Proposed Regulations on Religious Affairs
A recent COISS Situational Update from 18 November 2016 discusses in detail the proposed Regulations on Religious Affairs (see ‘Additional Reading’ below).
Briefly, the Situational Update summarises:[53]
• Religious affairs are closely monitored and controlled by the Chinese government through the State Administration for Religious Affairs (SARA) and lower level religious affairs bureaus. These organisations work with the United Front Work Department (UFWD) to select leaders for official ‘patriotic’ religious associations representing the five main religions in China.[54]
• The current Regulations on Religious Affairs (2005) require religious groups to register and report on their religious activities. Officials may impose harsher requirements and penalties for groups that are perceived to be a threat to state party objectives. This creates a significant obstacle for some groups to practice their faith. Many practice their faith in secret house churches.[55]
• The draft Regulations on Religious Affairs (2017) were released for comment in September 2016 and are anticipated for release in 2017. They include measures bringing greater scrutiny of the finances of religious groups, restrictions on religious schools, and limits on access to foreign religious writings, including on the Internet.[56] They tighten controls to enable imprisonment and excessive fines for those who do not adhere to the regulations.[57]
• The regulations may significantly curtail activities of protestant Christians, in particular those in house churches, as the government will have greater ability to apply punishments to those who use unapproved homes or other venues for religious practices or hold prayer meetings.[58]
• For Catholics, the regulations severely restrict the church’s foreign contact, theological training and overseas pilgrimages – reducing the influence of the Holy See – and render religious activities of unofficial bishops as illegal.[59]
Shandong Province
[53] Country of Origin Information Services Section (COISS) 2016, Situational Update – China: Regulations on Religious Affairs, 18 November, p. 2 <CR943F68571>
[54] Congressional-Executive Commission on China 2016, Congressional-Executive Commission on China Annual Report 2016, 6 October, p.122 < Accessed 28 November <CIS38A80122196>
[55] Congressional-Executive Commission on China 2016, Congressional-Executive Commission on China Annual Report 2016, 6 October, p.121 < <CIS38A80122196>
[56] ‘China Seeks Tighter Grip in Wake of a Religious Revival’ 2016, The New York Times, 7 October < Accessed 11 October 2016 <CX6A26A6E10627>. An unofficial translation of the draft regulations is available at State Council 2016, Religious Affairs Regulations Draft Revisions (Deliberation Draft), unofficial translation by ChinaLawTranslate, 8 September < Accessed 10 November 2016 <CIS38A80122593>
[57] Lawrence, B 2016, ‘China’s Religious Persecution Report (2015-2016): An Executive Summary’ 2016, China Aid,
[58] Carney, M 2016, ‘Chinese Communist Party readies crackdown on Christianity’, ABC, 8 October < Accessed
[59] Congressional-Executive Commission on China 2016, Congressional-Executive Commission on China Annual Report 2016, 6 October, p.123 < <CIS38A80122196>

In a 2016 report Freedom House categorises provinces in China in terms of the levels of religious persecution within those provinces. The risk in Shandong Province is listed as ‘very high’.
Assessment
The Tribunal is satisfied that the applicant is a citizen of China, and accordingly his claims will be assessed against China.
The mere fact that a person claims fear of persecution or harm for a particular reason does not establish either the genuineness of the asserted fear or that it has a real chance or real risk or arising, 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The applicant declined the opportunity to attend the hearing, indicating that he was unwell. However, the applicant made no request that the Tribunal postpone the hearing. The Tribunal considers that if the applicant had wished to give evidence to the Tribunal, and being willing to have his claims tested, he would have made such a request.
The Tribunal has had no opportunity to question the applicant about his claims in order to further explore the detail of his claims and to test his credibility. Notwithstanding that the applicant provided written claims and gave oral evidence at the interview with the delegate, there are many matters that the Tribunal would have wished to explore with the applicant in hearing including: the process the applicant underwent in deciding to become an adherent to Local Church in China and his Church activities in China; further exploration as to why the applicant did not join a Local Church in Australia until almost three years after arriving in Australia; further details as to claimed Local Church activity on return to China in 2013 and 2014; and claims of harm from authorities in July 2014.
In the absence of the Tribunal being able to explore these and other pertinent issues, the Tribunal is not satisfied as to key substantive claims of the applicant. The Tribunal is not satisfied that the applicant is a genuine adherent of, or practitioner in, the Local Church, either in China or Australia. The Tribunal is not satisfied that the applicant attended a sermon of the Local Church when he returned to China in September 2013. The Tribunal is not satisfied that the applicant was of adverse interest to authorities in China for attending this sermon and/or due to taking an electronic version of the Morning Revival at the sermon. The Tribunal is not satisfied that the applicant was summoned by security police for inquiries when he returned to China in July 2014. The Tribunal is not satisfied that the applicant was made to confess to attending the sermon, but denied taking any CD. The Tribunal is not satisfied that police searched the applicant’s house looking for evidence or that the applicant was physically assaulted by police or kept in custody for [a number of] days. The Tribunal is not satisfied that the applicant was made to sign a statement denouncing the Local Church.
Whilst the Tribunal is prepared to accept that the applicant has attended a Local Church on occasion since November 2014, and there are pictures showing the applicant at what appears to be a baptism, the Tribunal is not satisfied that the applicant is a genuine adherent to the church. The fact of the applicant attending a Local Church in Australia for the first time in November 2014, notwithstanding that he claims to have become a convert to the Church in 2010 and arrived in Australia in early 2012, could lead the Tribunal to consider that the applicant undertook some Local Church attendance and activities as a means to further his application for the protection visa, not because he was a genuine adherent.
The Tribunal has taken into account the supporting letter from the Local Church and pictures of what appears to be a baptism, but they do not persuade the Tribunal that the applicant is a genuine adherent to the Church given other concerns referred to.
The Tribunal is not satisfied that the applicant is a genuine adherent of the Local Church or that he would have any intention to practise in the Church on return to China.
Given those findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on being an adherent to the Local Church, or on the basis that he would attend the Local Church on return to China, or as a result of authorities having an adverse interest in the applicant based on Local Church activities on his return visits to China in 2013 and 2014.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason for any of the reasons claimed, or for any other reasons.
In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless 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.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

5 October < Accessed 11 October 2016 <CX6A26A6E10628>

11 October 2016 <CX6A26A6E10572>

[2017] AATA 3121

7 December 2017

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Statutory Construction

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