1516789 (Refugee)

[2019] AATA 5183

1516789 (Refugee) [2019] AATA 5183 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516789

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:1 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 April 2019 at 2:37pm

CATCHWORDS
REFUGEE – protection visa – China – religion – applicant child’s mother’s underground Roman Catholic church membership and activity – harassment and threats by classmates, teachers and police – mother’s student visa cancelled after one month – mother’s delay in applying for protection – mother’s protection visa application refused – credibility – inconsistent evidence – mother’s church membership and activity in Australia – country information – mother’s fear not well founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicant baby who claims to be a citizen of China, applied for the visa on 21 October 2014 and the delegate refused to grant the visa on 12 November 2015.

3. The delegate refused the visa application on the basis that the visa applicant did not satisfy cl.866.221(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4.    In her application, a certificate of baptism dated [4]/2015 is provided for the applicant. The applicant also stated the following:

My mother [Ms A] is a PRC citizen. She arrived in Australia on a student visa [in] December 2007. My father [Mr B] is also a PRC citizen. He arrived in Australia on a student visa [in] February 2008.

I should be regarded as PRC citizen like my parents but I am really not willing to go to China as I fear that I will be deprived of my basic human rights and I will be unable to survive in China.

My mother is a faithful Roman Catholic. Before my mother came to Australia she was a member of the Roman Catholic underground church in China. She was baptised [in] August 2005. After then she attended a secret youth group together with her good friend [Ms C]. The secret youth group was led by [Ms D], a nun of the underground church. In March 2007, my mother and [Ms C] were found to secretly pray the rosary in the evening. They were then sent to the police station for two reasons as follows. Firstly the students were forbidden to have any religious practices on campus. Secondly my mother and [Ms C] refused to expose the church leaders as well as sources of the rosary beads and the Bible which was published in [Country]. Although my mother and [Ms C] had to make confessions at the police station, they were detained at the Fuqing detention centre for [number] days. During that period, they were abused, humiliated and particularly harmed inhumanely by the police and criminals. Owing to confessions of my mother and [Ms C], the secret youth group was destroyed by the police and [Ms D] as well as some of other members were arrested. [Ms D] was secretly sentenced to [number] year imprisonment in the end.

Shortly after my mother came to Australia in December 2007, she found [Church 1] in [Suburb]. Since then she has been attending the Roman Catholic Church. Meanwhile she kept in contact with [Ms C] for a long time.

[Ms C] had to leave the school in January 2008. She then went to Xinyang City, Henan Province and worked at [a workplace]. The [workplace] was run by Mr [E], who was a good friend of [Ms C]’s [father]. In 2012, [Ms C] became a nun of the underground church in Henan Province. After that, [Ms C] had played a leading role in organizing catechumen classes. Unfortunately [Ms C] was arrested by the Public Security Bureau [in] July 2013 as she was discovered to organise a catechumen class in Xinyang city during summer school holiday. Consequently [Mr E]’s [workplace] was raided and closed down by the authorities. [Mr E] was also arrested. Owing to my mother’s frequent contacts with [Ms C] via Internet the police suspected that my mother had played a special role in [Ms C]’s activities. As a result my mother has come to particular attention of the PRC authorities. My grandparents and uncle have been implicated and subjected to investigation by the PSB.

If my mother goes back to China she must be arrested by the police and subjected to cruel torture and human treatments. She will be subjected to persecution due to her religious belief. Her freedom and livelihood must be threatened seriously. However, my mother’s application for a protection visa has been unsuccessful.

My mother believes that the decision made by the Refugee Review Tribunal on her application is incorrect. Firstly the RRT misunderstood my mother’s claims in relation to her sufferings with her good friend [Ms C] in March 2007. The sufferings of my mother and [Ms C], including having been questioned by teachers, beaten up at the police station and detained for [a number of] days at Fuqing detention centre were for two reasons, which I have mentioned above instead of their possession of a Bible and rosary beads. One reason was that the students were forbidden to have any religious practices on campus and the other was that the authorities wanted to the church leaders as well as sources of the rosary beads and the Bible published in [Country]. Therefore, even if my mother did not occupy any leadership or organisational role with the secret youth group, she still became a target investigated by the authorities.

Secondly the RRT expected that my mother at least would have asked for medical treatment or medical assistance or even received it before she was released from detention. China is notorious for its police violence. It is widespread that people have been subjected to cruel torture or inhuman treatments when they are questioned or interrogated or detained by the authorities. Facing those brutal police, is it possible for my mother’s detainee to ask for medical treatment or medical assistance at the detention centre? On the other hand, is it possible for those brutal police to be kind enough to arrange my mother to receive medical treatment before she was released from detention? The RRT’s expectations were obviously illogical or unreasonable.

It is true that my mother has not been charged with any offences and that she has not been issued with any documentation in relation to her detention. However, they do not mean that my mother has not been detained. Apart from the reasons for my mother’s detention, my mother was released mainly for two reasons as follows. One was that my mother had made confessions. Owing to her confessions, the secret youth group was destroyed. [Ms D], the church leader and a nun of the underground church as well as some of other members were arrested by the police. [Ms D] was later on sentenced to [number] year imprisonment. Another reason was that my grandfather bribed the police with big money through his friend. That’s why my mother was not been charged and not issued with any documentation. Apparently the RRT failed to consider my mother’s evidence correctly and carefully.

Thirdly, my mother does not accept the RRT has fairly considered the written submissions after the second hearing regarding the availability of Bibles in China. As a matter of fact, the Chinese government only approves of the printing and distribution of bibles through the TSPM bookstores and churches but never ever allowed those who print or distribute Bibles through other means such as smuggling the bibles from [Country] because the government does not want that religious bodies or religious affairs are subject to any foreign domination. Therefore those who print or distribute Bibles through other means must face imprisonment for such illegal activities in China. That’s why the PRC authorities wanted to know who provided the Bible to my mother and [Ms C] when they found the Bible was published in [Country].  [Ms D], who had provided the Bible to them, had later on been arrested by the police and imprisoned by the authorities.

Fourthly the RRT attempted to make light of or ignore or even distorted my mother’s evidence about how she had obtained her passport. As a matter of fact, my mother’s records of having been detained by the PSB made it very difficult for her to get a passport. My grandfather had to spend big money to bribe the police through his friend. Furthermore, my grandfather had to ask his friend to carefully arrange my mother’s departure from China. Otherwise it would be impossible for my mother to obtain her passport or left China.

Fifthly the RRT failed to consider my mother’s evidence as a whole. Both my mother and [Ms C] have been friends for 16 years since 1997. During such a long period, my mother was converted to be a Roman Catholic by [Ms C] and her father. Both of them were activists of a secret youth group of the underground church. Both of them were detained by the police for [number] days in March 2007. After my mother came to Australia she kept in contacts with [Ms C] who later on became a nun and church leader of the underground church in Xinyang City, Henan Province. Accumulatively, the police must believe that my mother has played a particular role in the underground church through [Ms C] when the police found my mother’s frequent contacts with her via Internet.

Finally the RRT accepts that my mother is a Roman Catholic, a member of the underground church and my mother has continually been attending the Roman Catholic Church since she came to Australia. But the RRT failed to consider that there is no genuine freedom of religious belief in China, and that a genuine Roman Catholic like my mother who has already come to particular attention to the Chinese government must be subjected to persecution on her return.

Impacted by my mother, I must become a faithful Roman Catholic. As my mother must be subjected to persecution by the Chinese government, I fear that I will be deprived of my basic human rights not be unable to survive in China.

5.    The applicant’s mother appeared before the Tribunal on 17 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Fr [F] and [Ms G] (the applicant’s godmother). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6.    The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7.    Fr [F] stated he knew the applicant’s mother had attended Church for a long time but could not be more precise and had obtained information about when she first attended from her. He stated a desire to come freely and worship God without harassment motivated her to attend church. He stated he thought she was genuine because she came regularly and her body language indicated she was familiar with the practice. When asked what he meant he stated there was contrast between Catholics and those not familiar with Catholic ways who presented as not belonging to the community and that she presented as someone who was at home in a Catholic community, that is she was at home with the celebration of the Mass, nothing seemed strange to her, she was able to follow what was being done and outside of that was at home with other members of the community. He did not know if she was married in the Catholic Church.

8.    The Tribunal asked if he had ever questioned the motives of people who came to his church and stated no because he did not see it as part of his role as a Catholic priest and that everyone was welcome.

9.    Fr [F] stated he was aware that there was harassment of people who did not follow the party line in China. He stated he did not think the applicant’s mother was motivated to come to church because of the migration outcome.

1. The applicant’s mother stated she wrote the applicant’s statement and her words were translated by the representative who read the English back to her Mandarin in and it was correct. The applicant’s mother stated it was because of her that the applicant would suffer in China.

2. The applicant’s mother stated she arrived in Australia [in] December 2007 on a three year student visa but did not know when that visa ceased. The Tribunal put to her that it understood that her student visa was cancelled less than one month after she arrived. She queried whether that was possible given that she attended class until February/March 2008. When asked when she thought her visa was cancelled she stated she did not know and only knew when the previous Tribunal member had said her visa had been cancelled. When asked if she was not studying then what made her think she could remain in Australia she stated she studied English when she first came but after her father lost his job she stopped going to class. She then stated because the visa was issued for three years and she was working hard trying to save money she did not know it would be cancelled.

3. The applicant’s mother stated she was married in 2013 but not in the Catholic Church because a priest said he recognised civil registration marriage. She agreed that she wanted to be married in the Catholic Church but stated her husband had only recently agreed to do so and had said he would do a course next year. She also stated that afterwards they would hold a simple church wedding which the priest had advised was acceptable because they had a registered civil marriage. The Tribunal put to her that raising children in a Catholic marriage was a basic part of her faith and asked for her comment. She stated she was working hard to persuade her husband to become Catholic and hoped they would have a Catholic marriage. The Tribunal put to her that Father [F] did not know if she was married in the Church or not. She stated she had asked another priest whether she still needed to hold a church wedding because they had already had a civil marriage and he told her all that was required was a simplified wedding ceremony. When asked what the significance of marriage was in the Catholic faith, she stated marriage united two people as one to form a family and to tolerate and love each other. She also stated in the beginning when God created Adam and Eve marriage was meant to be “you in me and I in him and they form a union”. When asked if marriage had anything to do with God, she stated marriage was by the word of God and required couples to be “you in him and him in you to have a union or oneness”. She also stated that she agreed that it was important to marry in the Catholic Church but had registered her marriage with the civil authorities because of her husband and afterwards had tried to persuade him to have a Catholic wedding which he had agreed to. The Tribunal put to her that when the Tribunal talked to her in 2014 she told them that the priest was not in good health and that the sacrament of marriage required three month’s notice and did not state that her husband was not Catholic and yet four years later she was still not married in the Catholic Church. She stated she had asked the priest who had said the church accepted a civil registered marriage, she had three children who were not in good health and the priest had said to just do a simplified wedding ceremony.

4. The applicant’s mother stated she knew the sacraments of baptism, communion, confession, confirmation, the application of holy oil and marriage. She stated she had received the sacraments of baptism, communion, confirmation, confession and the application of oil. The Tribunal asked when the application of oil was done and she stated baptism and confirmation. The Tribunal put to her that there were two other sacraments. She nominated priesthood and said there were seven sacraments. The Tribunal put to her that there was also anointing of the sick. The interpreter then said that was the word he did not know and had interpreted it as the ‘application of oil’. The Tribunal indicated it had sought clarification from the applicant’s mother as to when the application of oil was done and did not hear that it was done when a person was sick. The applicant then stated she knew this.

5. When asked which sacraments she had received the interpreter said she stated baptism, confirmation, confession, ointment and two words he was not familiar with.

6. The applicant’s mother stated confirmation was after baptism and strengthened faith. She stated she was confirmed [in] August 2005 which was when she received baptism. The Tribunal put to her that the previous Tribunal had noted that she had initially said she had not been confirmed because she did not think that her knowledge of Catholicism was at the right level and that she planned to get confirmed but had not done so but at the next hearing, had said that she had been confirmed. She stated at the time she did not understand what the member was asking.

7. The Tribunal also put to her that the previous Tribunal did not accept that she had participated in a secret youth group in March 2007, was not satisfied that she was detained and questioned because of Bible and rosary bead possession, noted that she was [a young age] at the time and was engaged in routine religious activities in an underground youth group, that there was no suggestion that she occupied a leadership role and did not accept that she would be detained for [number] days because of those activities. She stated that they wanted to find out the identity of the leader and who gave her the [Country] Bible and rosary and because she refused to identify them she was arrested and detained. When asked how she knew the Bible was published in [Country], she stated that Bibles in government sanctioned churches showed the name three self-patriotic association and her Bible said it was printed in [Country]. When asked why they were using a [Country] Bible she stated because she was an underground Roman Catholic. When asked why she couldn’t use a Chinese Bible she stated she was opposed to the government sanctioned church and would not use their Bible and that they would only give a Catholic Bible if she went to a government sanctioned church. When asked for clarification she stated the content would be the same but she would have to agree to go to a government sanctioned church. The Tribunal put to her that she had told the previous Tribunal that Bibles were not widely available in China but country information stated that in February 2010 40,000,000 Bibles had been legally printed and distributed in China. She said it wasn’t the Bible they were worried about but who gave her the Bible. The Tribunal put to her that she said she was [an age] year old girl in a group of [a number] people and asked if other persons in the group knew where the Bibles came from. The applicant stated she was in trouble because the teacher caught her, she had refused to disclose the information, the police had tortured her and eventually she revealed the identity of the people.

8. The Tribunal put to the applicant’s mother that the previous Tribunal did not accept that she had been implicated in [Ms C]’s activities in 2013.  The applicant’s mother stated that she had online contact with [Ms C], Ms [C] and the [workplace] owner had been arrested, and because of that internet contact, it was suspected that the applicant’s mother played an important role because the Chinese government monitored the Internet. She stated after their arrest the police went to her parent’s home and told them that underground members were arrested and suspected that the applicant’s mother played an important role. She also stated she maintained communication with [Ms C] and shared the pamphlets and tracks she brought home from church and also shared with her that in Australia there was religious freedom and human rights. 

1. The Tribunal put to the applicant’s mother that the previous Tribunal found that at its highest, her claims were that she sent some religious material to Ms [C] and that their communication also included details about how her friend was training to be a nun and was not convinced that would mean that the police would speculate that she was involved in what happened in China in July 2013. The applicant’s mother stated that it stemmed back to when they were still students because they had been arrested and detained and authorities now discovered that she had been maintaining internet communication and would conclude she played some important role in Ms [C] becoming a nun. The Tribunal also put to her that the previous Tribunal said that given that the police would have known that she would have been overseas it seemed unlikely that they would have then gone to her home which was in another province to the July 2013 incidents. She stated all the police stations were networked and all it took was a phone call.

2. The Tribunal put to the applicant’s mother that the country information suggested that in 2010 Fujian was generally regarded as a Province which applied religious regulations more liberally than other provinces in China. She stated there was still persecution and she was 100% loyal to Rome because that was a real Roman Catholic and she would continue to attend the Catholic Church. The Tribunal also questioned why was she not married in the church if she was 100% committed and she stated that she also had to consider her husband who had now come to an agreement. She had also asked a priest about it and the priest had said only a simplified wedding ceremony was required.

3. The Tribunal put to the applicant’s mother that she stated she had been to church since 2008 but had not applied for a protection visa until five years later even though her student visa was cancelled less than one month after she arrived. She stated that was because she had revealed the identity of other members that led to their suffering in detention. She had felt guilty and did not want to benefit from lodging a protection visa application while they suffered.

4. The Tribunal put to her that it appeared that her intention to stay in Australia predated her protection visa application by five years. The Tribunal put to her that it had to think about what she had done in Australia and why she had done it. It also stated that it had information before it suggesting that she had been attending church since 2008 and would think about that.

5. The applicant’s mother stated that in Australia the applicant could freely choose her religion.

6. The Tribunal then spoke to [Ms G] who stated the applicant’s mother’s children suffered from allergies. She said she was the applicant’s godmother and felt responsible to attend the hearing because at church she regularly saw the applicant’s mother. She stated she saw the applicant’s mother every week at church and had first met her probably in 2008. When asked why she said 2008 she stated her own child who was born in 2004 had been young at the time and the applicant’s mother had not been much older than her own child. When again asked why she had identified 2008 and asked if the applicant’s mother had mentioned that was the year she started attending she stated they met through a mutual friend and she had a number of God children sometimes she intentionally memorised certain things. The Tribunal put it that was a very significant Catholic event in 2008 and asked if she knew what it was and she stated it was world youth Day.  

7. The Tribunal put to the applicant’s mother that if it was not satisfied that she was genuine then it may not be satisfied that if the applicant returned to China she would be a practicing Catholic. The Tribunal put to her that it would still need have to think about whether she would suffer significant harm if she returned to China but even if the Chinese authorities knew that they had been attending church if they didn’t attend church in China then the Tribunal may not be satisfied that the applicant would suffer significant harm if she returned to China. The applicant’s mother stated she was genuine and because of her, the applicant would also be Catholic and would be persecuted. The applicant’s mother also said that she would continue to tell people who the true Catholic Church was.

8. The applicant’s mother stated she met her husband in 2011 and he was still not Catholic.

9. The applicant’s mother then stated she would be taken by force and sterilise because she had three children. The Tribunal put to her that was a new claim and the country information on Fujian didn’t suggest that. The Tribunal also put to her in any event it was the applicants and not her case that the Tribunal was considering.

10. Following the hearing, the Tribunal sent the following letter to the review applicant:

The length of time your mother was unlawfully in Australia before she applied for a protection visa
According to movement records, your mother arrived in Australia [in] December 2007 on a student visa that ceased on 9 January 2008. She was again granted a student visa on 9 January 2008 that ceased on 8 April 2009 after which time she obtained bridging visas and did not apply for a protection visa until 6 August 2013.

This is relevant because the Tribunal may find that this is not consistent with her claims that she was involved in the underground Catholic Church in China, was arrested and subjected to serious discrimination at school and that considering her safety, her father organised her study in Australia. If the Tribunal finds that her delay in lodging a protection visa application is inconsistent with her claims she was involved in the underground Catholic Church in China then subject to your comments, it would not accept that she or you are genuine Catholics and would affirm the decision under review.

Your mother’s failure to marry in the Catholic Church
When the Tribunal talked to your mother about her failure to marry in the Catholic
Church in 2014 she told them that the priest was not in good health and that the
sacrament of marriage required three months notice. This is relevant because at
hearing on 2018 your mother indicated that she was still not married in the Catholic
Church because her husband had only recently agreed to do so (and would do a
course next year) and the priest had advised a simple church wedding was acceptable
because they had registered a civil marriage. The Tribunal may find that your mother’s
explanations as to why she failed to marry in the Catholic Church have changed. In
addition, her continuing failure to marry in the Catholic Church may be inconsistent
with her claims she was involved in the underground Catholic Church in China and is a
genuine Catholic. If it find this, then subject to your comments, it would not accept that
she or you are genuine Catholics and would affirm the decision under review.

Your mother’s confirmation
The previous Tribunal noted that at hearing on 13 August 2014 your mother said that
she understood the interpreter and initially said she had not been confirmed because
she did not think that her knowledge of the Catholic religion was at the right level and
that she planned to get confirmed but had not done so but at the next hearing on 11
September 2014, she said that she had been confirmed and at hearing in 2018 she
stated that she was confirmed [in] August 2005 which was when she also received
baptism.

This is relevant because the Tribunal may find that your mother’s changing evidence
about whether she received confirmation in China is not consistent with her claims she
was involved in the underground Catholic Church in China and subject to your
comments, would not accept that she or you are genuine Catholics and would affirm
the decision under review.

The alleged events in China
At the previous Tribunal in 2014 your mother stated that Bibles were not widely
available in China.

This is relevant because country information states that according to the US
Department of State 2009 50,000,000 Bibles had been legally printed and distributed
in China (see
\\ntssyd\refer\Research\usdos\irf\irf09\ is relevant because the Tribunal may find it is not satisfied your mother knew how
many Bibles were already available in China and was not able to explain why she
allegedly needed to use a [Country] Bible instead of a Chinese Bible. This, her age
([age]) and her evidence that she was engaged in routine religious activities and did not
occupy a leadership role in [an] member underground youth group, may lead the
Tribunal to not accept that she was detained for [number] days because of those alleged
activities. In addition, it may lead the Tribunal to find that it does not accept that your
mother was implicated in her friend’s activities in July 2013.

If the Tribunal does not accept that your mother was detained, it may not accept she
was telling the truth about her alleged activities in China and may not accept she is a
genuine Catholic. If it does not accept she is genuine, it would not accept that you are
genuine and would not consider you have attended Church in Australia otherwise than
for the purpose of strengthening your refugee claim. The Tribunal would disregard
your conduct in accordance with s. 91R(3) of the Act.

It may also not accept that you would practice Christianity if you returned to China and
in relation to your refugee claims and subject to your comments would affirm the
decision under review.

The Tribunal would still need to think about your mother’s Australian Catholic Church
attendance however even if the Chinese authorities knew that she had been attending
Church in Australia the Tribunal may not be satisfied that this and the potential finding
that she and you are not genuine Catholics would mean that you would suffer serious
harm on return to China. If the Tribunal finds this, then subject to your comments it would affirm the decision under review.

The Tribunal would still need to think about you and your mother’s Australian Catholic
Church attendance in relation to whether you would suffer significant harm however even if the Chinese authorities know you or your mother have been attending church in Australia the Tribunal may not be satisfied that this and the potential finding that she and you are not genuine Catholics would mean that you would suffer significant harm on return to China. If the Tribunal finds this, then subject to your comments it would affirm the decision under review.

1. The Tribunal received the following response:

The length of time I was unlawfully in Australia before I applied for a protection visa

The Tribunal has raised the issue of my delay with which I lodged a protection visa application in August 2013 despite arriving in Australia in December 2007. The Tribunal has clarified the importance of this piece of information as it may be inconsistent with my previous claims to have been involved in underground Catholic Church in China.

In my most recent statutory declaration I had commented on the specific issue and gave my reasons to explain why I decided to delay my application for a protection visa. However as I mentioned in my recent statutory declaration the information provided on this topic were in addition to the explanation I gave in my own application many years ago. I assumed the Tribunal were familiar with the contents in my protection visa application and the reasons why I chose to delay my protection visa application. These reasons I gave have not changed and I will reiterate them here because they were very important and were very carefully considered prior to my making the decision to delay my application. In the following paragraph I will recount the situation I was in before I arrived in Australia as was mentioned on previous occasions to provide context for my reasons of delaying my protection visa application.

In China I encountered a situation involving Chinese police whom received notice of my and my friend’s involvement in the underground church. My friend [Ms C] and I met serious consequences including arrest and detainment in Shangjing town police station where we were both beaten and abused in the name of official interrogation. We were forced to confess to our crimes and sent to Fuqing detention centre for further punishment. We were further abused in Fuqing detention centre for [number] days. Our confessions directly led to the destruction of our secret youth group of the underground church and the arrest of my leader [Ms D]. She was imprisoned for five years and I can only imagine the horrifying and merciless abuse she received during those five years. Following my release from Fuqing detention centre I returned to school where my detainment became widespread news. I was humiliated, ridiculed and tormented by my classmates who all tried their hardest to prevent me from forgetting the hell I endured in the previous month. My father could not bear to see his precious daughter break down into tears again and again and decided to send me to study in Australia through the help of his friend. He spent an enormous amount of money and enabled me to safely land in Australia.

The series of events I encountered, prior to arriving in Australia left me with unhealable emotional scars. My mind and my emotions were in turmoil because I felt relieved that I was so far away from all the troubles and all the dangers but I also felt guilty and undeserving that I had abandoned my friend and my leader to suffer whilst I walked freely. I tried to reason with myself again and again but I could not escape the feeling of selfishness and disloyalty. I caused so much harm and pain on to those I valued so dearly yet I was unpunished. I was never able to overcome this feeling of guilt.

In my attempt to describe with as much precision as I can the feelings and emotions in my mind I am relying on the Tribunal to emphasise with the personal situation I was in. My guilt was the reason for deciding not to apply for protection at the time of my arrival and thereafter. I wrestled with the thought of lodging an application but I ultimately viewed it as the final act of betrayal to my friends, to my faith and to everything I stood for. I reasoned with myself, through my own morality and my religious values that lodging for protection would put me beyond any opportunities to repent and save my soul. The physical environmental circumstances I was in also made this decision easier because seeking a life in an alien country with no money and no understanding of the language seems like an unachievable task and something that did not seem any less difficult than returning to China to face my demons. In the end I decided my plan was to stay in Australia for a substantial period of time return to China when my case was more likely forgotten and I could avoid any extra attention.

Undeniably, my plans changed dramatically in 2013 when my friend [Ms C] was suddenly arrested by the PSB. [Ms C] had furthered her religious studies over the years and became a nun of the underground church. She had been tasked with the organisation of secret catechumen classes which were found out and raided by the police in 2013. As the leader of these classes, she was going to face very serious consequences. Her arrest gravely implicated my plans because she and I maintain close contact over the years. Somehow the police was able to find out about our contact and I was given particular attention to because I was seen as her accomplice as I had been in the past. Both my parents and my [sibling] were implicated by this situation as they were interrogated by the police. Their interrogations were signs that my return to China became extremely dangerous. I knew if I return to China I would not make it past customs before I would be arrested. The situation was further worsened by the fact that my visa was not going to last forever and my return to China was very near. It was because of the direness of the situation that forced me into no other choices but to apply for protection.

My failure to marry in the Catholic Church

The Tribunal raises the issue that my failure to marry in the Catholic Church is inconsistent with my claims have been a genuine Catholic. The Tribunal recognises my previous explanation in 2014 that the priest was not in good health and that the sacrament of marriage required three months’ notice but later mentioned in 2018 my husband had only recently agreed to do so (and would do a course next year) and the priest advised a simple church wedding was acceptable because we had registered a civil marriage. Tribunal is aware of the inconsistency between the two explanations and is taking it into consideration.

In regards to this matter I firstly clarify that I still stand by the claims I have made in the past pertaining to this matter and as mentioned in above. That being said, as a Catholic I should get married with my husband in rite of Roman Catholic Church. There is no defending my decision and I can only hope the Tribunal can forgive my mistake and look towards my lifelong devotion towards Roman Catholicism and every other aspect of my life to make up for this mistake. The decision to marry outside a Catholic church was not made intelligently and I only considered the consequences after it had taken place. Fortunately the chaplain pastor of my church, Father [F] was merciful enough to validate our civil marriage in the eyes of our faith. As for the differing comments I made on this issue, I want to clarify that they were not made in defence of the marriage but which provide information and context of the situation. I think I did not convey the message in the correct manner but my intentions were to describe the situation which was my husband and I were planning to marry in the Catholic Church however the pastor was not well and we had to delay it for a significant amount of time. Out of inpatients and impulse my husband and I decided on having a civil marriage instead. In retrospect, I regret the decision despite having father [F]’s blessings. Once again I hope the Tribunal can look towards my other acts of devotion and contributions towards my faith and believe in the genuineness of my faith.

My Confirmation

The Tribunal raises the issue of the inconsistency between my claims of having confirmation with respect to my identity as a Catholic. The Tribunal mentions that I stated I had not been confirmed yet but plan to receive confirmation in the 2014 hearing but then later claimed I had already received confirmation in 2005 when I is baptised in the 2018 hearing.

Admittedly the two different claims are inconsistent and may cause confusion for the Tribunal. I will firstly clarify the truth that is I was actually confirmed during the same time I is baptised in 2005. I made a mistake and said the wrong thing during my hearing in 2014. At the time I was very nervous and under a lot of pressure and had a lot of thoughts going through my head. I can only ask for the Tribunal is kind understanding for this issue.

The alleged events in China

Tribunal raises two issues regarding the alleged events in China firstly my knowledge of the availability of Chinese Bibles yet still needing [Country] Bibles and secondly my young age and low position in the church yet still being detained by the police.

Both issues were actually raised by the Tribunal on previous occasions and I provided an explanation on each occasion. Are still stand by my previous claims on this matter and will reiterate them here.

In terms of the need for [Country] Bibles this was a result of the inability for underground churches to receive copies of Chinese Bibles. Chinese Bibles are produced and distributed under strict supervision by Chinese officials. Officially these Bibles are only available in three self patriotic movement churches and bookstores and only members of the TSPM churches can have access to them. There was and still is no way for underground churches to obtain a Chinese Bibles and our only way of obtaining them was to smuggle them from the overseas such as [Country]. The exclusivity of Chinese Bibles also means that all Bibles produced outside of China is indicative that the owner of that Bible belongs to an unofficial or illegal church or underground church. When my teachers found out about [Ms C] lend me praying the rosary, they pointed tower [Country] Bibles as evidence for their suspicions that we were members of an illegal church.

After confirming we were indeed members of an illegal church, my teachers notified the police and led them to our arrest. The police arrested us indiscriminately and forced me to reveal who the leader of my underground church was and who organised the church activities among students. The police did not care for our age or our role played in the underground church, they cared only for us to reveal the leader of our church and the organiser of the church activities among students. As the matter of fact the Chinese government has never ever tolerated any church activities among students in the school particularly at the middle school.

Owing to the contents in paragraph 14 and 15 I believe the Tribunal may have misunderstood the events leading to my arrest. Whilst I stand by the lack of Chinese Bibles for underground churches necessitating imports from [Country] as well as the fact that [Country] Bibles are indicative of illegal church activities my arrest by the police was not because of possessing [Country] Bibles. Instead it was because teachers found out about my praying the rosary and reported it to the police who arrested us because they believe we were members of an illegal or underground church and they intended to force us to reveal the leaders of our illegal church.

Country Information

1. The Immigration and Refugee Board of Canada response to information request dated 7 September 2005 comments on the situation of Catholics in Fujian province. It is stated in the response to information request that:

Human Rights in China (HRIC) commented in 4 August 2005 correspondence to the Research Directorate that the treatment of Christians is poor in southern China, particularly in the rural areas, though the organization could not elaborate, citing a lack of available information. In 2002, the Cardinal Kung Foundation reported that unregistered Catholics were arrested while attending catechism classes in Fujian (n.d.). In 2003, a group of seminarians in Changle, near Fuzhou, were also arrested while reading the book containing the day’s service during a picnic (Cardinal Kung Foundation n.d.). Most recently, in July 2005 Father Lin Daixian, along with nine parishioners and one seminarian, was arrested while conducting mass in a private home in Fuzhou (ibid., 28 July 2005). According to a Cardinal Kung Foundation press release, as at 28 July 2005, Father Lin was being held at the Pingtan detention centre (ibid.).

However, the executive secretary of the Hong Kong Christian Council commented that Fujian and Guangdong have “the most liberal policy on religion in China, especially on Christianity” (Executive secretary 1 Sept. 2005a). In his travels, the executive secretary has met with local authorities who, he said, usually tolerate activities of unregistered Christian groups (ibid.). While authorities are of a more tolerant nature in rural areas than in urban centres, they would usually take steps to discourage religious activity if it had a link to groups from outside China (ibid.). The executive secretary stated that he is aware of a number of unregistered churches that have been allowed to function for years (ibid.). Though he has received a few reports of arrests of Catholic priests in the years 2003 to 2005, the executive secretary noted that overall, Christians in Fujian and Guangdong “enjoy one of the most liberal polic[ies] on religious freedom in China” (ibid.). Further information on the treatment of Catholics specifically in Fujian and Guangdong could not be found among the sources consulted by the Research Directorate (Immigration and Refugee Board of Canada 2005, CHN100386.E – China: Situation of Catholics and treatment by authorities, particularly in Fujian and Guangdong (2001-2005), 7 September).

1. Two articles also provide information regarding underground Catholics in Fujian province. An article dated 14 January 2007 indicates that in Nanping in Fujian province, “A state-controlled Catholic Church draws new members, as does a parallel but underground Catholic Church that’s loyal to the Vatican.” According to the article:

While the Communist Party still controls China firmly, it partially relaxed its grip on religious activity. In pockets of China, such as here, religion thrives. Groups loosely aligned with different Protestant denominations battle for the hearts of followers, again operating social services such as kindergartens and retirement homes. A state-controlled Catholic Church draws new members, as does a parallel but underground Catholic Church that’s loyal to the Vatican. (Johnson, Tim 2007, ‘In China, Christianity rises again; RELIGION’, The Miami Herald, 14 January

1. While over 40 million Bibles have been legally printed and distributed in China, sources do not agree over whether this has been enough to satisfy demand or whether they are readily available in all areas. Some sources claim that there is a shortfall of Bibles in rural areas which is alleviated by illegally imported or illegally printed sources.  No reports were found on the availability of Bibles in Fujian specifically.

2. Bibles are printed in China by Amity Press and a few official Catholic Patriotic Association (CPA) presses. The US Department of State (USDOS) notes that “Amity has published more than forty million Bibles for the Chinese readership and distributes them through a network of 70 urban distribution points and a mobile distribution network that travels to rural areas”.[1] 

   [1] US Department of State 2009, International Religious Freedom Report 2009 – China, 19 September, ‘Legal/Policy Framework’, p.5 – Attachment 7.

3. Some sources indicate that Bibles are generally available in most cities:

   • In a 2007 Time magazine article, Jean-Paul Wiest, an expert on Chinese Catholicism who teaches at the Beijing Center, stated that his students have no problems getting religious materials and  that “Bibles are very widely available”. The article also claims that “in recent years it has become easier for house churches to procure Bibles, often buying them through registered churches. Some Bibles are even appearing in bookstores, despite lacking the registration numbers required of any printed work.”[2]
   • A 2005 article by Hans Petersen titled ‘Why can’t all Christian bookshops sell Bibles’[3],  agrees and gives the following details:

   -    in most cities the Bible is available at low-cost to the Protestant community – even unregistered house-church Christians are now able to purchase Bibles

   -    In practice, those Christians attending church on Sundays are able to make purchases of Bibles or Christian books for an hour or two after services. A few of the major church book-rooms are open during the week.

   -    To meet the growing demand for Christian books, legal Christian bookshops outside the CCC system are springing up all over China. Unconfirmed reports state there may be as many as 50 now operating in major cities such as Beijing and Shanghai. Forum 18 has visited two such in east China. These are completely legal outlets, often run by house-church Christians, with the necessary municipal permits displayed on the walls.

   [2] Ramzy, Austin 2007, ‘China’s New Bestseller: The Bible’, Time, 17 December – Accessed 20 December 2007 – Attachment 13

   [3] Petersen, Hans 2005, ‘Why can’t all Christian bookshops sell Bibles’,  Forum 18 News Service, 24 August – Accessed 12 October 2009 – Attachment 12.

4. Other sources claim that there are shortages of Bibles, particularly in rural areas:

   • The USDOS state “increasing interest in Christianity produced a corresponding increase in demand for Bibles and other Christian literature, and members of unregistered churches reported that the supply and distribution of Bibles was inadequate in some rural locations. Individuals could not order Bibles directly from publishing houses”.[4]
   • Michelle Vu of The Christian Post stated in 2007 that “access to religious material remains difficult in China despite the Chinese government’s claim that it prints a sufficient number of Bibles”[5], and in 2009 that “it is difficult for many house church Christians to obtain a copy of the Bible”.[6]
   • The 2005 article by Petersen titled ‘Why can’t all Christian bookshops sell Bibles’[7],  states that, unlike the situation in cities:

   -    the rapid growth of the church in rural areas means that there is always a shortfall in the availability of Bibles there. Poverty and poor transport combine to prevent new rural converts from easily obtaining Scriptures. The shortfall is made up by large numbers of Bibles “smuggled” in from such places as Hong Kong, and by those printed illegally within the country.

The sacraments

[4] US Department of State 2009, 2008 Human Rights Report: China, 25 February, Sec.2a – Attachment 9

[5] Vu, Michelle 2007, ‘China to Open World’s Largest Bible Production Plant’, The Christian Post, 10 December – Accessed 20 December 2007 – Attachment 14.

[6] Vu, Michelle 2009, ‘Report: House Church Persecution Increases 418 Percent in Beijing’, The Christian Post, 7 February – Accessed 5 February 2010 – Attachment 15.

[7] Petersen, Hans 2005, ‘Why can’t all Christian bookshops sell Bibles’,  Forum 18 News Service, 24 August – Accessed 12 October 2009 – Attachment 12.

1. According to the Catholic Archdiocese of Melbourne: The Seven Sacraments of the Church are as follows:

Christ instituted the sacraments of the new law. There are seven: Baptism, Confirmation (or Chrismation), the Eucharist, Penance, the Anointing of the Sick, Holy Orders and Matrimony. The seven sacraments touch all the stages and all the important moments of Christian life.

RELEVANT LAW

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

Refugee criterion

1. 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).

2. 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.

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

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

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

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

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

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

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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’).

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

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

Section 499 Ministerial Direction

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee convention reasons in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In her application, the applicant claimed that her mother was a member of the Roman Catholic underground church in China, that her mother was baptised [in] August 2005, attended a secret youth group led by [Ms D], that in 2007 her mother and [Ms C] were found secretly praying the rosary in the evening and were sent to the police station because they were forbidden to have any religious practice and because they refused to expose the church leaders and source of the rosary beads and Bible, were detained and as a result of their confession, [Ms D] and other members were arrested and sentenced. She stated that after her mother came to Australia in December 2007, she found [Church 1] and had since attended. She also stated that [Ms C] who became a nun was arrested [in] July 2013 and owing to her mother’s frequent contact with her via the internet the police suspected that she played a special role in [Ms C]’s activities and that her mother’s family have been subjected to PSB investigation.

Preliminary issue

1. As discussed with the adviser and the applicant’s mother, the applicant’s reasons for claiming protection were drafted as if spoken by the applicant who could not have said those reasons given she was born on [date]. The applicant’s mother and adviser conceded that it was the applicant’s mother who had in fact said the claims. As discussed with the adviser and the applicant’s mother at hearing, the Tribunal raised concerns with a practice whereby claims purportedly written by one person who clearly does not have the capacity to do so are in fact claims written by someone else.

The alleged events in China

1. In her application, the applicant claimed that her mother was a member of the Roman Catholic underground church in China and that she was baptised [in] August 2005. While the applicant’s mother has also claimed that when she was baptised [in] August 2005 she also received confirmation, at a previous Tribunal hearing on 13 August 2014 and before a differently constituted Tribunal she stated that she had not been confirmed because she did not think that her knowledge of the Catholic religion was at the right level. When this was put to her at hearing in 2018 the applicant’s mother stated that she had not understood what the member had said but at the same hearing she stated that she understood the interpreter and her answer at that hearing along with her explanation for that answer suggest that she did understand. The Tribunal finds that the applicant’s mother’s answers in relation to whether she has been confirmed have changed. After the 2018 hearing the applicant’s mother stated that she had been nervous, under a lot of pressure and had a lot of thoughts going through her head when she had said that she had not been confirmed. The Tribunal does not accept that nerves or pressure is an explanation as to why she would tell the Tribunal she had not been confirmed if in fact she had. Neither does the Tribunal accept that she has been confirmed.

1. Neither does the Tribunal accept that the applicant’s mother was questioned and detained in 2007 for either possessing a Bible published in [Country] and rosary beads nor revealing the source of rosary beads or a Bible published in [Country] or revealing the leaders of her underground youth group. That is because her description of what allegedly happened to her as [an age] year old is not consistent with the country information that suggests that around the time that the applicant was allegedly detained in 2007, Christians in Fujian “enjoyed one of the most liberal polic[ies] on religious freedom in China. In reaching this conclusion the Tribunal has considered the evidence from the Cardinal Kung Foundation that states that there were some incidents involving unregistered Catholics in Fujian between 2002 and 2005 and the Hong Kong Christian Council commented in September 2005 that there had been a few reports of arrests of Catholic priests. The Tribunal notes that the majority of those reported cases involve seminarians and clergy. The Tribunal does not accept that given that the applicant’s mother was [age] years old when she was allegedly detained, engaged in routine religious activities in an underground youth group, and occupying no leadership role, that her religious practices and profile would mean that she would be questioned, detained, tortured and imprisoned for [number] days. In reaching its conclusions, the Tribunal has also considered that at the previous Tribunal in 2014 the applicant’s mother stated that Bibles were not widely available in China however according to the US Department of State 2009, 50,000,000 Bibles had been legally printed and distributed

in China (see \\ntssyd\refer\Research\usdos\irf\irf09\ Although the country information about whether Bibles are available in rural areas is equivocal, and country information about the availability of Bibles in Fujian specifically was not found, the country information suggests that in 2007, Bibles were widely available in China and could be bought through registered churches. The Tribunal is not satisfied that the applicant’s mother knew how many Bibles were already available in China and was not able to explain why she allegedly needed to use a [Country] Bible instead of a Chinese Bible. The Tribunal has also formed the view that the applicant had not turned her mind as to how many Bibles were available because she was not talking about events that had actually occurred.  In reaching this conclusion, the Tribunal also finds that if the applicant’s mother was a practising Catholic who had been detained in China and then humiliated, ridiculed and tormented following her release and if other members were arrested owing to her confession and her grandfather had been forced to bribe the police so that the applicant’s mother was not charged and if her grandfather had then carefully arranged for the applicant’s mother’s departure from China because of her alleged persecution then the applicant’s mother would have applied for a protection visa earlier than she did.

1. The Tribunal is also not satisfied, in light of the applicant’s mother’s failure to claim protection until nearly 6 years after her arrival in Australia and nearly six years after her student visa ceased that her behaviour indicates that she did in fact left China in fear or that she feared she would be harmed in China. Although the applicant’s mother claimed at hearing that she did not know that her student visa had ceased, she did not provide a plausible explanation at hearing as to why she thought she could remain in Australia even though she had entered as a student and was no longer studying. She also stated at hearing that she failed to claim protection because she did not want to benefit from lodging a protection visa application while other church members suffered, however her alleged guilt did not stop her from leaving China, coming and remaining in Australia since December 2007 and the Tribunal does not accept that her alleged guilt is sincere and stopped her from applying for protection after her arrival and thereafter.

2. The applicant has claimed that she ultimately applied for a protection visa in 2013 because Ms [C] was suddenly arrested, the police saw her as her accomplice and her parents and [sibling] were implicated and interrogated, her visa was not going to last forever and the direness of the situation forced her to apply. The Tribunal does not believe that the alleged incident in 2007 occurred. In addition, given that the applicant’s mother has not been in China since December 2007 and the police would have presumably known that she was overseas, the Tribunal does not accept that the police would speculate in 2013 that the applicant’s mother was involved in Ms [C]’s allegedly becoming a nun because she had maintained internet communication and sent Ms [C] material or that the police would have gone to the applicant’s mother’s home.   

3. In sum, the Tribunal finds that the applicant’s mother claims about what has happened to her in China have been fabricated to found her belated protection visa claims. The Tribunal does not accept that the applicant’s mother was converted to Roman Catholicism in China or that she was the member of a secret youth group of the underground Church. Neither does the Tribunal believe that she was baptised or confirmed or that others including [Ms C] or [Ms D] were detained by police in March 2007 or that [Ms D] was sentenced to five years imprisonment. Neither does the Tribunal accept that [Ms C] became a nun, organised catechumen classes that were then raided and that [Ms C] was arrested, [Mr E]’s [workplace] was raided and the police suspected that the applicant’s mother played a special role in [Ms C]’s activities because they discovered she had kept in contact with Ms [C].   

The applicant’s mother’s practice in Australia

1. While the Tribunal accepts that the applicant’s mother has attended the Catholic Church in Sydney it does not accept that she has been doing so since 2008. That is because the Tribunal does not accept that the applicant’s mother was a practicing Roman Catholic before she came to Australia, nor does it accept that she would not have applied for a protection visa earlier than 2013 if she were a Roman Catholic before or since 2008. The applicant’s mother has claimed that she ultimately applied for a protection visa in 2013 because Ms [C] friend was suddenly arrested, the police saw her as her accomplice and her parents and [sibling] were implicated and interrogated, however the Tribunal does not accept that. In reaching its conclusions, the Tribunal has considered whether the applicant’s mother has conducted herself in a way that is consistent with her alleged Catholic beliefs. Firstly, she did not apply for a protection visa. Secondly, she has never received the sacrament of marriage in the Catholic Church even though she stated at hearing that she was in a registered civil marriage. When this was raised at hearing, the applicant’s mother stated that her husband had only recently agreed to marry in the Catholic Church and said he would do a course next year, and that she was working hard to persuade him to become Catholic but this is of recent invention since she told the former Tribunal in 2014 she had not been married because the priest had not been in good health and the sacrament of marriage required three months’ notice.  The Tribunal also finds that if she did not marry in the Catholic Church because her husband was not Catholic then she would have stated that at the 2014 Tribunal hearing. While the Tribunal has considered the applicant's mother’s explanations at her first hearing which were that the priest was not in good health and that the sacrament of marriage required three months’ notice, neither the priest’s illness or her need to give three months’ notice explains why, many years later, the applicant’s mother continues to remain unmarried in the Catholic Church. When this was raised at hearing in 2018, she stated that she had asked a priest who had said the church accepted a civil registered marriage, she had three children who were not in good health and she had asked the priest who said to just do a simplified wedding ceremony.

2. In the Tribunal's view, the applicant's mother’s initial explanation at hearing in 2014 and her subsequent changing explanations are those of a person who is simply saying whatever is convenient to her protection claim.  The Tribunal's overall impression of the applicant’s mother is that she has learnt about Catholicism in order to strengthen her protection visa application but has not provided a consistent account for the reason why she continues to remain unmarried in the Catholic Church. In the Tribunal's view, since lodging her protection visa application she has participated in some Catholic ceremonies such as church, while ignoring others, such as marriage. She has also learnt about Catholicism, but does not know things, such as all of the seven sacraments which, according to the Catholic Archdiocese of Melbourne, reflect important moments of a Catholic’s life. In reaching this conclusion, the Tribunal accepts the applicant’s mother initially identified the sacraments of baptism, communion, confession, confirmation, marriage and the application of holy oil and (after prompting) was able to identify the appointment of priesthood, but she was unable to identify the anointing of the sick. (In reaching this conclusion, the Tribunal is satisfied that it sought clarification of what the applicant meant when she said ‘the application of oil’ and that at that stage, she did not mean the sacrament of the sick). Moreover, it was the Tribunal’s impression that the information she did provide appeared to have been rote learned, rather than something she organically knew because of her experienced Catholic belief. The Tribunal is also of the view that the applicant's mother’s inability to answer this question is inconsistent with someone who claims to have attended church or underground Catholic gatherings in China and Australia since 2007.

3. In sum, the Tribunal does not find the applicant’s mother credible and does not accept that she is a genuine Catholic convert. In reaching this conclusion, the Tribunal accepts that the applicant’s mother has attended the Catholic Church in Sydney. The Tribunal has also considered Fr [F] and Ms [G] testimony that the applicant’s mother has participated in Catholic Church activities. Ms [G] has even stated that she probably first met the applicant’s mother in 2008 because she intentionally memorised certain things. However given that Fr [F] has relied on the applicant’s mother for information about when she first attended and given that the Tribunal does not accept that the applicant’s mother was a Roman Catholic before she came to Australia, nor does it accept that she would not have applied for a protection visa earlier if she were a genuine Roman Catholic, the Tribunal does not accept that Fr [F]’s evidence or that of Ms [G]’s evidence outweighs its concerns that the applicant’s mother has not been attending Church since 2008.

4. As stated, the Tribunal accepts the applicant’s mother has attended the Catholic Church in Sydney but has done so in order to strengthen her protection visa claims. In the Tribunal's view, the Tribunal does not accept she is a genuine Catholic and is not satisfied that she is or will be perceived in China to be a Roman Catholic or that she has any genuine desire or intention to practice her faith including proselytising in the reasonably foreseeable future in China. In reaching this conclusion the Tribunal has considered the evidence of Fr [F] however he has acknowledged that he has never questioned the motives of those who attend his church. Neither does the Tribunal place enough weight on Fr [F] or Ms [G]’s evidence to overcome the Tribunal’s view that the applicant’s mother is not genuine. 

5. Finally, at hearing the applicant’s mother made the belated claim that she would be taken by force and sterilized because she had three children however as put to the applicant’s mother at hearing, her case has been decided by a previously constituted Tribunal and the issue before this Tribunal is whether there is a real chance the applicant will be persecuted for a Convention reason or whether there is a real risk that she will suffer significant harm.

6. It is claimed that the applicant is also Catholic and baptised. However, based on all the evidence before it, the Tribunal is not satisfied that the applicant’s mother is a genuine Catholic or that she has any genuine desire or intention to practice her faith or proselytise or for her or the applicant to attend underground Catholic gatherings in the reasonably foreseeable future in China. Neither does the Tribunal accept that the applicant’s mother’s or applicant’s attendance at the Catholic Church in Australia will be known to Chinese authorities. Neither does it accept that the applicant’s mother or applicant will be harmed.

7. Given the Tribunal's findings about the applicant’s mother, the Tribunal does not accept that the applicant is a genuine Catholic or will be perceived in China to be a genuine Roman Catholic who has any genuine desire or intention to practice her faith in the reasonably foreseeable future in China. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will be persecuted for a Convention reason.

8. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. 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).

10. In view of all of the above findings, for the same reasons the Tribunal has found the applicant does not have a real chance she will be persecuted, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to the receiving country, China, there is a real risk that the applicant will suffer significant harm.

11. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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

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

Angela Cranston
Member