1603167 (Refugee)

[2019] AATA 5884

1603167 (Refugee) [2019] AATA 5884 (30 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603167

COUNTRY OF REFERENCE:                   China

MEMBER:Frances Simmons

DATE:30 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 30 June 2019 at 3:54pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – underground church – past persecution – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 438, 499
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 on 22 February 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are citizens of China. The applicants are husband and wife and they arrived in Australia together [in] June 2014 holding student visas. The applicants applied for protection visas on 19 March 2015. The first named applicant claimed that she was at risk of harm in China because of her Christian faith. Before the department the second named applicant [did] not make his own claims. The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia owed protection obligations.

3. The applicants appeared before the Tribunal on 19 December 2018 to give oral evidence and present arguments. The Tribunal also received evidence from [Pastor A] of [Church 1]. Having considered all the evidence before it, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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). 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).

7. 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.  

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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

9. 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 – 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has before it the Departmental [file] and the Tribunal file.

11. A certificate purportedly issued pursuant to s.438(1)(a) of the Act has been placed on folios 77and  79 of the Departmental file restricting the disclosure of the information contained therein.[1] If a certificate is issued because the disclosure of information or documents would be contrary to the public interest, it is necessary for the certificate to specify the reasons why. For s.438 certificates, this is any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.[2] The certificate in question states that the disclosure of the information would be contrary to the public interest because it would reveal ‘information relating to internal working documents and business affairs’.

    [1] Department file, f.101

    [2] Section 438(1)(a)(i) of the Act.

12. In MZAFZ v MIBP[3] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were that the relevant folios contained information ‘relating to an internal working document and business affairs’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure.[4] Following this reasoning, the Tribunal finds that the s.438 certificate on the Departmental file is invalid. The Tribunal has had regard to the information on the folios purportedly covered by the certificate.

    [3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]–[48].

    Background and immigration history

13. [The first applicant] was born in Jilin province in China on [date]. According to her protection visa application she lived at the same address in Jilin province from June 2008 until June 2014. Between 2004 and 2008 she lived in [Country 1]. Prior to that time she lived in Jilin province. The first named applicant married the second named applicant [in] February 2012. They have stated that they have a son who was born on [date] and who is remains in China.

    Summary of claims

14. The applicant’s written claims are on Departmental file (folio 48-50) and she expanded on these claims at an interview with the delegate on18 February 2016.

15. [The first applicant] claims that she is at risk of harm in China because of her religion.[5] According to her written claims, when [the first applicant] was [age] years old her parents divorced and her mother remarried. As a child [the first applicant] was cared for by her aunt who introduced her to the Christianity. [The first applicant] attended the underground church with her aunt.  [The first applicant] travelled to [Country 1] with her mother and stepfather in 2004. Whilst in [Country 1] she attended the local church with her mother and step-father. In 2008 the family returned to China and her step-father’s friend gave him a bible as a souvenir.

    [5] CLF[file number] f. 48-50 and f. 98 (audio recording of the interview with the delegate on 18 February 2016). The applicant’s evidence at interview is accurately recorded in the delegate’s decision record a copy of which was submitted to the Tribunal by the applicant. 

16. [The first applicant] returned to her birthplace in [name] County and her step-father and other went to Shandong province. She began attending the underground church with a friend, [Ms A] and her family. On 1 February 2012 [the first applicant] married [the second applicant]. [The second applicant] ran a [business] in another city in China. She claims her aunt, friends and local church members cared for her while she was pregnant.

17. [In] 2013 she was attending a bible class her aunt’s dormitory when the local police came to their house. The police had been monitoring her aunt’s house for a long time. [The first applicant] panicked when she saw her aunt being handcuffed by the police. She was taken to hospital where she gave birth to a premature child. [The first applicant] was not arrested however her aunt was arrested for fifteen days. After this incident the underground church became more secretive.

18. [In] December 2013 they were attending church to celebrate Christmas in [Ms A]’s mother’s house. She said that they were raided and arrested. She was released after she signed a guarantee letter not to attend any illegal underground church activity. She was almost locked up for 24 hours and the police monitored her after her release. When she told her husband what happened he advised her to go abroad to escape persecution from the CCP. An agency applied for a student visa for her and her husband as a dependent on his visa. They were granted visas on 13 May 2014.

19. [The first applicant] attends church in Australia. Her aunt and friends have advised her not to return to China or she would be arrested and detained. She met an old lady from her hometown who told her that persecuted Chinese Christians could apply for protection visas in Australia. Because of her limited English proficiency she spent most of her time studying and did not know about the protection visa.

20. The applicant submitted a letter to the Department written by [the] assistant minister at [Church 1] dated [February] 2016. The author writes that the applicants have been known to him for 11 months in his capacity as assistant minister at [Church 1] in [Suburb 1] NSW. The applicants were both attending regularly their morning services, he found them to be honest and reliable, and they had the respect of all who knew them in the church community.[6]

    [6] Departmental file, f.85

    Application for review

21. The applicant provided a copy of the delegate’s decision with her application for review. The delegate’s decision record sets out the delegate’s concerns about the credibility of the applicant’s claims. When the applicants appeared before the Tribunal the applicant reiterated her claims that she had been harassed, monitored and briefly detained because of her membership of a small unregistered church gathering in China.  The applicant was questioned about these claims and the Tribunal put to the applicant that it had concerns about the credibility of her claims to have attracted the adverse attention of the Chinese authorities because of her involvement in an underground house church in China.

22. The applicant gave evidence that together with her husband she has attended [Church 1] in Australia since 2015.  The pastor of [Church 1] attended the hearing and gave evidence in support of the applicants. In evidence to the Tribunal, the applicant claimed that she could not attend a registered church and that evangelising was a basic requirement of her Christian faith. The applicants’ evidence to the Tribunal on 19 December 2018 as well as the evidence of their witness, [Pastor A], is discussed further in the assessment of claims and evidence.

    Independent country information

23. At the hearing the Tribunal discussed with the applicant DFAT’s Country Information Report: People’s Republic of China, dated 21 December 2017. This report states, in part:

    China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century.

    The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims.

    Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.

    In practice, the number of religious believers is likely to be much higher and rising,particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. ….

    ….

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

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

    Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational.

    Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.

    Unregistered religious organisations are illegal and vulnerable to punitive official action.

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

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

24. At the hearing, the Tribunal put to the applicants that DFAT assesses that:

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

    In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.

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

    Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families … DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China…

1. The Tribunal acknowledges that, as discussed at the hearing, more recent reports suggest that there has been deterioration in the state of religious freedoms in China.[7] Since DFAT published its report in 2017 there has been a recent shift in the regulation of religion in China in an attempt to ‘Sinicise’ religion to ensure that it does not undermine the authority of the CCP. In February 2018 new national regulations came into effect which requires churches to register with the government and worshippers to attend registered churches with penalties for attending illegal religious gatherings.[8] In March 2019, Christian NGO China Aid published its 2018 annual report focusing on the treatment of Christians in China and concluded that state actors intervened more often in religious practice compared with the previous year.[9]

   [7] 'International Religious Freedom Report for 2017 - China (Includes Tibet, Hong Kong and Macau)', US Department of State, 29 May 2018, Section II, p.8, OGD95BE927626; 'China Aid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, pp.57-60, 20190307125741.

   [8] DFAT Country Information Report, People’s Republic of China, 21 December 2017; and Department of Home Affairs, Unregistered Christians, People’s Republic of China, COISS, September 2018.

   [9] 'China Aid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, pp.57-60, 20190307125741

2. The DFAT report makes no reference to situation of Christians in Jilin province and therefore the Tribunal sought and obtained up-to-date information from the Country of Origin Information Services Section (COISS) about the situation of (a) practitioners at unregistered Protestant house churches in Jilin province (b) registered churches in Jilin province. [10]   

   [10] China: CI190318111436318 – Christians – Protestants – Jilin province, 5 April 2019.

3. Reports about Christianity in Jilin more generally indicate that the authorities have intervened in religious practice of those practicing banned heterodox religions, such as The Church of Almighty God and the Local Church or Shouters.[11]  With respect to the situation of Christians of unknown denominations COISS reported:

   [11] China: CI190318111436318 – Christians – Protestants – Jilin province, 5 April 2019.

   In August 2018, Bitter Winter reported that the Chinese Communist Party (CCP) ‘implemented a reward-based reporting system and has mobilized sanitation workers, community building supervisors, retired seniors, waste pickers, and others to report information about Christians. The authorities have even encouraged government-controlled Protestant Three-Self Church adherents to report on house church worshipers’. The report provides the following examples of community members assisting the authorities in Jilin province:

   In May, a community in Hunchun city, Jilin Province, to implement the authorities’ policy of “cleaning up” the attendees of house church gatherings, mobilized one full-time building director in each residential building and paid them each additional 120 yuan per month to investigate and find out the homes where sermons took place or religious gatherings were organized. Rewards would be given for reporting people, and those who did not report would be punished.

   […]

   On February 20, a community office in Jilin city, Jilin Province mobilized idlers and retired seniors to report the locations of house gatherings and collect information on Christians in the jurisdiction, and to register the cases of families who often have strangers visiting their homes.[12]

   In July 2018, Bitter Winter reported that an individual was arrested by police after using his ID card to buy a train ticket in Sougyuan city, Jilin province. Reportedly, the individual who had previously been arrested for this faith was arrested with a Bible and ‘other Christian literature’. Subsequent to his arrest, police reportedly searched his house and arrested his wife as well. The report says that ‘when their son learned about the arrest of his parents, he used his connections to secure their release after 15 days’. The report also says that ‘police said that the government is striking hard against religion this year, and the Public Security Bureau has assigned this town to arrest 44 Christians’. Moreover, the report says that ‘detained believers are all given heavy sentences of three to five years’. Notably, the report is silent on the denomination of Christianity referred to.[13]

   In June 2018, Bitter Winter reported that two years ago ‘seven Christians from a house church in the city of Meihekou, Jilin Province’ were arrested and detained for a month and made to undergo ‘a conversion class’. One of the detained was able to use connections and bribes to secure release. According to one of the detained. The report is silent on the denomination of Christianity referred to. Accordingly:

   One of the Christians revealed that when the police were not getting any answers from the interrogation, they forced the believers to go to an intense indoctrination and conversion class, propagating the ideas of atheism and forcing them to watch videos slandering Christianity. They had to write “thought reports” and sign statements of guarantee that they would no longer believe in God – attempts to force them to give up their faith.[14]

   In June 2018, Bitter Winter published an article sourced from ‘direct reports from China’ that says ‘public security police, the SWAT police and urban management officers from Jilin Province’s Jilin city seized a church near a residential community called “Beijijayuan” on May 8 taking away four Christians’. The anonymous report says that ‘at around 12:30 p.m., two public security police cars, four SWAT cars, and five urban management car surrounded the church. The police officers taped off the church, closed it down, and removed the cross. Some Christians tried to reason with the police but failed’.[15] The anonymous report does not specify which denomination of Christianity the church and its attendees belong to.

   In July 2018, Bitter Winter reported that in December 2017 ‘two pastors from a house church in Songyuan city, Jilin, were arrested while preaching in Huocheng county of the Ili Kazak Autonomous Prefecture in Xinjiang’. Reportedly, the two were detained, interrogated and tortured before being released from the police station.[16]

   [12] ‘National Campaign to Report on Christians’, Bitter Winter, 8 August 2018, 20190403120626

   [13] ‘Public Security Bureau Issued Quotas to Arrest Christians’, Bitter Winter, 23 July 2018, 20190403120819

   [14] ‘Seven Jilin Christians Forced to Undergo Intense Indoctrination’ Bitter Winter, 28 June 2018, 20190403121128

   [15] ‘Police Seized a Church and Arrested Christians in Jilin’, Bitter Winter, 9 June 2018, 20190403121255

   [16] ‘Preacher Arrested and Tortured While Attempting to Save Others’, Bitter Winter, 30 July 2018, 20190403121429

4. With respect to the situation of registered churches in Jilin province COISS reported:

   In March 2019, Bitter Winter published an article about the state’s review of TPSM pastors in provinces, including Jilin. The report says that the ‘if a minister does not show sufficient zeal for the Chinese Communist Party (CCP)’s regulations or questions the Party’s policies, they will be removed from their leadership position’ and that ‘in some cases, atheist Party members are being appointed as the new leaders of churches’. Bitter Winter says that it ‘received a copy of a list issued at the end of 2018 by the Committee of the Three-Self Patriotic Movement of the Protestant Churches of Jilin Province’ titled ‘2018 List of Clerical Personnel in Jilin Province Who Have Been Revoked of Their Religious Duties by the Protestant Lianghui [CCC&TPSM]’. Bitter Winter say the list ‘shows that 119 clergy members had their clerical duties revoked for “not possessing or losing clerical qualifications”’ and that ‘in Changchun city (the capital of Jilin Province) alone, 24 clergy members were stripped of their qualifications’. The report states that ‘some clergy members were removed because they were suspected of being engaged in “foreign religious penetration” and that ‘some pastors in Yanbian Korean Autonomous Prefecture, for example, were suspected of having links to South Korean Christian groups’ while ‘others were dismissed because they were suspected of having connections with religious groups suppressed by the CCP government’.[17]

   In August 2018, Bitter Winter reported that ‘churches in Jilin’s Yushu city have been targeted increasingly by the Chinese authorities since the implementation of the new Regulations on Religious Affairs’. Bitter Winter says that ‘starting in late March, the authorities have sealed at least nine churches and taken down their crosses’. The report says that authorities told believers at the Three-Self church in Huancheng township that they could not continue to gather and that they would be arrested if they continued to do so. Reportedly, shortly after the Xinglong Three-Self Church in the town of Wukeshu was closed by the authorities as was the Three-Self church in Tuqiao town. Reportedly, in May, ‘several’ other churches were closed in Jilin province, including one in Bahao town, Gaowopengtun church in Heilin, a ‘gathering site’ in Xinyan village, Tiande village church, Xinfa village church, and also a church in Laoniugou village.[18]

   In July 2018, Bitter Winter reported that ‘many government-controlled Protestant Three-Self churches have been shut down or ordered to remove their crosses in the city of Changchun’. The report says that two Three-Self churches were affected. ‘In late April 2018, the local authorities, on the excuse that the church did not have a permit, forbade the congregation to hold meetings and ordered them to remove the church’s cross, threatening with sanctions if the believers refused to comply. The church’s leader, Wan, removed the cross’. ‘In early May, the local government ordered the dismantling of the cross on a Three-Self church in Helong town, Nong’an county, Changchun city. On May 30, local government officials forcibly removed an iron cross embedded in the church’s gatepost and demanded to remove all faith-related symbols.’[19]

   [17] ‘Official Clergy Purged for Not Being Communist Enough’, Bitter Winter, 6 March 2019, 20190403125139

   [18] ‘Three-Self Churches in Jilin Sealed, Crosses Taken Down’, Bitter Winter, 15 August 2018, 20190403125352

   [19] ‘Three-Self Churches in Changchun Ordered to Remove Crosses’, Bitter Winter, 26 July 2018, 20190403125544

5. In February 2019 China Aid published a report that outlines various incidents involving Christians and churches in 2018 across the Jilin province, many of which involve registered churches. In summary:

   ·In the beginning of April, Xinglong Three-Self Church in Wukeshu Town, Yushu, was sealed, the cross was dismantled, and more than 100 believers lost their fellowship place.

   ·In late April, a small Three-Self church in Changchun was ordered by the local government to stop meeting immediately for lack of approval, and the church must dismantle the cross. The local government also threatened the Christians using coercive measures if they did not obey. The leader of the church, Mr. Wan, had no choice but to dismantle the cross.

   ·At the end of April, the cross of a Three-Self Church in Yushu was dismantled.

   ·At the beginning of May, the cross of Yuejiatun Church in Yushu was dismantled, and the believers were ordered to stop their meetings.

   ·At the beginning of May, members of a Three-Self Church in Changchun, was ordered by the local government to dismantle their cross. On May 30, local government officials forcibly pushed down the iron cross embedded in the door’s threshold. Government officials also threatened that any symbols related to the Christian faith would not be allowed.

   ·In mid-May, a Three-Self Church in Yushu was ordered to stop gathering, and the cross was forcibly destroyed.

   ·In mid-May, the cross of the Three-Self Church in Yushu was forcibly dismantled, and believers were ordered to stop their meetings.

   ·On May 20, a Three-Self Church in Yushu was shut down, and the cross was cut off with a chainsaw by the government officials.

   ·In May, a Three-Self Church in Yushu was sealed. The cross was dismantled, and the red cross symbol on the outer wall of the church was covered up.

   ·In May, a gathering place in Yushu was sealed and the cross was forcibly dismantled.

   ·In May, the plaque and cross of a Three-Self Church in Tiande Village, Heillin Town, Yushu, were forcibly dismantled by the Religious Affair Bureau.[20]

   [20] 'China Aid’s Top 10 Persecution Cases in China 2018', China Aid Association, 1 February 2019, p.11, 20190205131516

   ASSESSMENT OF CLAIMS AND EVIDENCE

6. The applicants travelled to Australia on Chinese passports and the Tribunal accepts on the basis of their passports that they are Chinese citizens. The Tribunal finds that China is the country of reference for the purpose of assessing the applicants’ claims to be owed protection obligations by Australia.

7. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[21] The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[22] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[23]

   [21] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.

   [22] MIMA v Rajalingam (1999) 93 FCR 220.

   [23] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

8. The Tribunal finds that the applicant is a citizen of China and that her home area is Jilin province. The applicant gave evidence that she is a committed Christian and that going to church on Sunday was the biggest part of her religious life and also that in her daily life she also tries to evangelise. She described evangelising as the most basic requirement of her Christian faith and gave evidence that she promotes Christianity to colleagues and people she feels able to speak to about her Christian beliefs. She explains that all people are born into sin and that the only way to clean yourself of your original sin is to become a true believer in Jesus Christ. The Tribunal accepts that the applicant attends church services at [Church 1] in [Suburb 1] every Sunday. The applicant gave evidence that she was a Christian in China but that she was first baptised in 2016 by [Pastor A].

9. The Tribunal accepts the applicant is a committed Christian. In reaching this conclusion the Tribunal has considered the applicant’s oral evidence at the hearing, where she responded to questions about her faith spontaneously and in detail. The Tribunal has also given significant weight to evidence of [Pastor A], who attended the hearing to support the applicants’ application for protection and who spoke to the Tribunal about the applicant’s religious activity in Australia, the strength of her commitment to the Church, and his own view that true Christians find that their belief in God is incompatible with the ideology of the Chinese Communist Party (CCP).  The Tribunal accepts that the second named applicant also considers himself to be a Christian but on the evidence before it is not satisfied that he does not share the same evangelical enthusiasm for the faith as his wife and that his wife is the driving force behind his decision to be baptised and attend church in Australia.

10. [Pastor A] told the Tribunal that he supported the applicants’ claims because they attended his church and were, in his opinion, genuine Christians, and he believed their fear of religious persecution and restrictions on their religious practice was well-founded. He gave evidence that it was his belief that the first named applicant had been a Christian in China and the second named applicant had been brought to the church by his wife. He explained there were about twenty people in the Mandarin group of the church and the applicants attend church every week. He had baptised both the first and second named applicant. In response to the Tribunal’s concerns that the that the fact that the first named applicant had not been baptised in China might be said to undermine her claim to have been Christian in China, he indicated he did not agree, saying that he was aware of some Christians from China who had not been baptised in China including for family reasons.

11. [Pastor A] spoke in detail about his views that the religious persecution and restrictions of religious practice in China is intensifying. In his view, the environment for Christians is China is increasingly oppressive, surveillance by colleagues and community is widespread, and that if your religious belief was serious then it was very likely that you would come into conflict with the CCP. [Pastor A] does not come from Jilin province but he expressed the view that religious persecution is worse in Northern and central China as compared to the more liberal province which his own family is from. [Pastor A] stated he had returned to China to visit his parents but when he did so he never declared his religious position as a Minister on his visa application as if he did so he would be required to sign an undertaking that he would not engage in religious activity. He expressed the view, and it impressed the Tribunal as sincere, that he did not believe the applicants would be able to practice their religion in China without fear or suppressing their true beliefs.

12. The Tribunal has significant doubts about the applicant’s claims to have attracted the adverse attention of the Chinese authorities in the past. Before the Tribunal the applicant reiterated her claims that she had always been a believer in Christianity. She told the Tribunal her mother was not a Christian and neither was her biological father but she was exposed to Christianity in China by her aunt, with whom she used to stay when she was on holiday from boarding school. She said she did not practise Christianity at school as it was not permitted. When she was eighteen when she travelled [Country 1] with her mother and stepfather. She claims that while she was in [Country 1] she met a Chinese Christian and there were five or six Chinese Christians in [Country 1] who would gather together. When it was put to the applicant that she told the delegate she attended church in [Country 1], the applicant reiterated that that what she had told the Tribunal was correct.  She said her mother because a believer in Christianity while they were in [Country 1] but after they returned to China her mother didn’t practice Christianity at all. The applicant said that when she returned to China in 2008 she lived with her aunt and twice a week they would attend a small gathering of eight to ten people and pray and study the bible together. She said that they celebrated Easter and Christmas and described the significance of these events in some detail. The applicant explained the significance of baptism and she said that she was not baptised in China because they could not find pastors to do so safely.

1. To the Tribunal the applicant reiterated her written claims that she was a member of a house church in China and, as a member of this house Church, she had had two encounters with the Chinese authorities. She claimed that the first encounter occurred in March 2013 when she was heavily pregnant and attending a small gathering of around nine people who had come together to study the bible. She claimed that the other members of the gathering (including her Aunt) were arrested but she was not because the police saw she was heavily pregnant and let her go. The applicant claimed she was left alone in the house and she called her in-laws who then called an ambulance and she was taken to hospital. She was then taken to a larger hospital where she gave birth to her child. The applicant claimed this incident was ‘not too serious’: the other members of the gathering were released in less than 24 hours after making a written undertaking not to be involved in the underground church . She claimed her aunt was released last. She thought her aunt was detained for two days but she said she could be wrong. She said she did not have any involvement with the house church for some time after her son was born because she was very scared.

2. On the evidence before it, Tribunal is unable to confidently dismiss the possibility that the applicant’s claim that she was involved in the underground church in China in the past was true. However, the Tribunal has formed the view that her claims that she has attracted the adverse attention of the Chinese authorities in the past are not credible.  As the Tribunal discussed with the applicant, the Tribunal was concerned that her evidence about the period of time that her aunt was detained for was inconsistent and shifted over time. In her written claims the applicant said her aunt was detained for fifteen days but before the Tribunal the applicant said her aunt was released after two days when she provided a written undertaking not to meet with the underground church and other church members were released within 24 hours. The applicant’s evidence to the Tribunal about the length of time her Aunt was detained for was also inconsistent with a letter she provided to the Department, purportedly from her Aunt, in which the author states that in March 2013 she was detained for fifteen days and that other people were detained for seven to fourteen days.

3. The Tribunal also found the applicant’s evidence about her second encounter with the Chinese authorities unpersuasive. The applicant claimed she began attending a house church with [Ms A] and her family and at a meeting of the house church shortly before Christmas in 2013 the group was raided and arrested by the police. In her written claims she said that she was locked up for almost 24 hours, made to sign a letter undertaking not to attend the underground church again, and monitored by the police. Before the Tribunal she reiterated these claims before claiming --- for the first time – that she was physically assaulted whilst in detention. The Tribunal does not accept the applicant has credibly explained why, if she was assaulted by the authorities when she was arrested, she would not have mentioned this fact at an earlier point in the protection visa application process. The Tribunal also found unpersuasive the applicant’s evidence that she did not make enquiries about what happened to the other church members who were arrested on this occasion until after she travelled to Australia.

4. The Tribunal finds the fact that the applicants departed China travelling on genuine passports issued in their true identities indicates that [the first applicant] was not of any adverse interest to the Chinese authorities. Chinese citizens are subject to high levels of state surveillance and the country information before the Tribunal indicates that a person who was of adverse interest to the Chinese authorities is likely to have difficulty departing the country. While the Tribunal has considered the applicant’s evidence that while she had attracted the attention of authorities, she was not a high profile person, the Tribunal also considers the timing of the applicant’s departure from China and her subsequent delay in applying for a protection visa cast some doubt on the genuineness – or at least the depth -- of her claimed fear of persecution. On the evidence before it, the Tribunal is not satisfied that the applicant was of any adverse interest to the Chinese authorities when she left China.

5. Notwithstanding these concerns, having considered all of the evidence before it and placing weight on the evidence of [Pastor A], the Tribunal accepts that the applicant is a genuine Christian. While the Tribunal has some doubts about this issue, the Tribunal considers it is possible that she participated in an unregistered church in China and, in any event, accepts that she is now a deeply committed member of an Anglican church in Australia led by [Pastor A].  The Tribunal places weight on [Pastor A]’s evidence to the Tribunal about the nature and strength of her commitment to religious practice in Australia over a period of four years. The Tribunal accepts that the applicant leads bible study class among the Mandarin congregation, engages in fundraising for the church, and sees evangelising as part of her mission as a Christian. The Tribunal accepts that the applicant is a genuine Christian and that she is not caught by s.5J(6) of the Act. The Tribunal accepts that she attends a church where the church leadership is critical of the CCP’s treatment of religious groups and registered churches in China.

6. The Tribunal is prepared to accept that the applicant would seek to continue to attend a similar kind of church in China if she returns to China. The applicant gave evidence that she was opposed to attending a registered church as was not a real church and the Chinese government established these churches as a tool so that they could monitor the activity that occurred within these churches. She referred to her concerns that registered churches are required to endorse the CCP policies and install security videos monitoring church goers. She told the Tribunal that the CCP was atheist party, and would persecute any form of religion. She said that if she were to return China it would be impossible for her to practice her religion, evangelise or study the bible. The Tribunal found the applicant’s evidence about her opposition to attending a registered church was persuasive, particularly in the context of the views of the [Pastor A], the leader of the church she attends in Australia. Having  spoken to [Pastor A], who was strident in his criticism of the CCP and described a belief in Christianity as incompatible with CCP ideology, the Tribunal accepts her evidence that she would seek to attend an unregistered church if she returns to home area of Jilin province.

7. The Tribunal accepts that the applicant attends church every week, leads bible studies classes, engages in fundraising for the church, and considers evangelising to be a core element of her religious practice. The Tribunal accepts that restrictions on religious freedoms are intensifying in China and, while there is significant variation between provinces, the country information indicates that if the applicant were to practise her religion the way the Tribunal accepts that she practises her religion in Australia, based on the country information set out in this decision record there is a small but real chance that she would face serious harm in Jilin province for reasons of her religion.  The Tribunal finds that if the applicant were to attend, as the Tribunal accepts she would wish to do, an unregistered church and engage in evangelical activity, there is a small but real chance that she would detained and otherwise mistreated while detained by the Chinese authorities. As detention involves a serious and significant denial of liberty, the Tribunal accepts that this would amount to serious harm for the purpose of the Act.

8. The applicant could avoid a real chance of persecution by not practising her faith or by modifying her conduct and suppressing the way she expresses her religious beliefs. However, the Tribunal cannot require the applicant to modify her conduct in this way as to her to alter, conceal her religious beliefs or cease to practice her religious beliefs as this would involve an impermissible modification of conduct: s5J(3)((c)(i).  Therefore s 5J does not apply.

9. The harm that the applicant fears emanates from the Chinese authorities. Whilst the Tribunal acknowledges that there are parts of China where religious activity in non-state churches is subject to less intense scrutiny by authorities than in Jilin province, the Tribunal is not satisfied that the applicant can relocate to another part of China to avoid the harm she fears. The Tribunal considers that the applicant's commitment to evangelizing and the fact that she would seek to raise her child, who is still in China in the Christian faith, is likely to increase the risk to her beyond that of an ordinary member of an underground or house church wherever she may be in China.

10. Accordingly, the Tribunal accepts that there is a real chance that the applicant will persecution in China for reasons of her religion. For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, she meets the meaning of ‘refugee’ set out in s.5H of the Act.

    CONCLUSION

11. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).

12. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the husband of the first named applicant and therefore a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i) As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

13. The Tribunal remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Frances Simmons
    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.

    …