1603516 (Refugee)

[2016] AATA 4272

1603516 (Refugee) [2016] AATA 4272 (1 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603516

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE:1 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 August 2016 at 12:28pm

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. The applicant is a citizen of China. He is aged in his late [age] and he is from Fujian province. The applicant arrived in Australia on a Subclass 571 (Student) visa [in] January 2008. He was subsequently granted further Student visas and a Subclass 485 (Graduate Skilled) visa. The later visas were granted on the basis of his dependent relationship with his wife whom he married in Australia. The applicant has departed Australia twice since his arrival in Australia, the first time between [July] 2011 and [August] 2011 and the second time between [May] 2012 and [June] 2012. The applicant made a further application for a Student visa [in] May 2012. The application was refused by the Department [in] November 2012 and affirmed by the Migration Review Tribunal on 13 September 2013.

2. The applicant applied to the Department of Immigration for the Protection visa [in] October 2013. The applicant claimed that since his arrival in Australia he has become a member of the Roman Catholic faith. The applicant claimed that as a result of this, and because he gave a bible and information regarding an Australian Chinese Catholic website to his friends in China, his father’s home was searched and his father was told that the applicant should cease his “illegal” activities. The applicant claims that he will be harmed upon his return to China as a result of the authorities’ interest in him and as a result of his attendance at underground Catholic churches.

3. The delegate of the Minister for Immigration refused to grant the Protection visa [in] October 2014. The delegate accepted that the applicant has become a Catholic whilst in Australia, but did not accept that he had satisfactorily explained why he is reluctant to attend the registered Catholic Church in China. The delegate also accepted that the applicant may have given a bible and information to his friends, but was not satisfied that the friends were subsequently sought or arrested by the Chinese authorities or that his father’s home was searched or his father threatened. The delegate accepted that the applicant had not become a Catholic for the purposes of strengthening his application, but found that the delay between the applicant’s first attendance at a Catholic church in February 2012 and the lodgement of his Protection visa application in October 2013, some 20 months later, as well as his return to China after he had become a Catholic, did not support his claims to fear harm in China. The delegate found that the timing of the Protection visa application indicates that the applicant was more interested in seeking to extend his stay in Australia following the failure of his Student visa application, rather than genuinely seeking Australia’s protection.

4. The Refugee Review Tribunal (RRT) (differently constituted) affirmed the delegate’s decision on 26 November 2015. On 10 March 2016, the Federal Circuit Court ordered that the matter be reconsidered on the basis that the decision record of the previously constituted Tribunal revealed a probable error of law. The matter is now before this Tribunal following an order of the Federal Circuit Court.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant claimed, in response to questions on the application form as to why he left China, that he arrived in Australia on a Student visa [in] January 2008. He states that he cannot return to China because he will be subjected to persecution from the Chinese authorities. The applicant states that his father was divorced with a [child] when he married the applicant’s mother. The applicant’s parents quarrelled frequently and divorced when he was young. The applicant lived with his father and rarely saw his mother. His father did not care for him and left him with his grandmother. He did not feel loved by either of his parents. The applicant’s father felt guilty about the lack of attention he gave to the applicant and organised for him to study in Australia. When the applicant came to Australia to study he had intended to concentrate on his studies and return to China.

6. The applicant states that in February 2008 he met [his wife] and they married in February 2009. The applicant supported his wife financially and eventually ceased his studies in Australia. In September 2011, the applicant found his wife with another man and he was very upset. He did his best to save his marriage and would not agree to a divorce. However, [his wife] moved out in November 2011. The applicant was very depressed. In February 2012 he “got to know a faithful Roman Catholic”. The applicant began attending [Church 1] in [Suburb 1]. He also went to another Catholic church in [Suburb 2]. The applicant gradually felt himself changing, and he tried to forgive his wife and not hate her anymore.

7. The applicant also states that in China he had two good friends, [Mr A] and [Ms B], whom he had studied with them in [High] School. Before he left China in 2008, [Mr A] was successfully enrolled in [an educational institute] and [Ms B] remained in Fuzhou. When the applicant returned to China he met them both in Fuzhou. He learned that they had become Roman Catholics and members of the underground church. They told the applicant that he should take the opportunity to participate in Catholicism in Australia. He did not pay much attention to their words because he was madly in love with his wife at that time.

8. In May 2012, the applicant returned to China for the second time. [Mr A] and [Ms B] had married by that time and operated a [shop] in [Fuzhou]. The applicant met them to tell them that not only had he become a Roman Catholic believer but also to give them a Bible as a gift. He knew that [Mr A] was specialising in [a certain area] so he gave him the website of the [Organisation 1] ([website deleted]) in Australia as he believed that [Mr A] could use it to learn more about the Roman Catholic Church in Australia.

9. After the applicant came back to Australia in June 2012 he continually attended [Church 1] in [Suburb 2]. He forgave his wife and they were divorced [in] December 2012. Unfortunately, the Chinese authorities had recently attacked “illegal” activities on the Internet and the shop that was run by [Mr A] and [Ms B] came to the particular attention of the PSB. [In] October 2012, the [shop] was raided by police from the PSB and [Mr A] was accused of spreading illegal information, which he was told seriously damaged public security and social order and he was arrested immediately. The [shop] was sealed by the police. [Ms B], who was staying with her grandparents in Fuzhou when the shop was raided, did not dare return to Fuzhou. She was able to learn through “secret contacts” with the PSB that [Mr A] had confessed everything under “cruel torture” and she had been placed on a blacklist by the PSB.

10. [In] October 2013, [Ms B] contacted the applicant secretly and told him what had happened in Fuzhou. She said that [Mr A] had told the police that the applicant had given him the website address of the [Organisation 1] in Australia and a bible and the police believed that he had assisted [Mr A] to spread illegal information on the Internet. She repeatedly urged the applicant to never return to China. [In] October 2013, the applicant’s father’s home in Fuzhou was raided by the police. Although the police did not find anything, they still took his father to the PSB and threated him and told him he would be arrested if he did not stop the applicant’s “illegal” activities. The applicant fears if he returns to China he will be arrested and imprisoned by the PSB.

11. Documents provided in support of the application included a letter from [Ms C], dated [February] 2014. [Ms C] states that she arrived in Australia in 2008 and has been participating in the Catholic Church in [Suburb 1] and [another] church in [Suburb 2]. She states that she knows that the applicant suffered as a result of his broken marriage and relationship with his ex wife and she tried to help him by involving him in some Chinese Catholic groups. His mental wounds healed and he became actively involved in the church and was baptised and confirmed in 2013. Several photographs of the applicant at various activities associated with the church were also provided.

12. The applicant also provided a letter from [an Organisation 2] [official]dated [March] 2014, stating that the applicant has been a member of the church community since February 2012 and he attends regularly and participates in Eucharist celebrations and bible sharing groups. He received the sacrament of baptism and confirmation [in] December 2013 and his baptismal name is [name]. A copy of the applicant’s baptism certificate was also provided.

13. The applicant was interviewed by the delegate [in] March 2013. The Tribunal has listened to the CD Rom recording of the interview.

    Application for review

14. When lodging the application to the Tribunal, as previously constituted, the applicant provided a copy of the delegate’s decision record. The applicant subsequently provided additional supporting documentation, including supporting letters from [an official] of the [Organisation 2], [Mr D], and several other persons who attend the applicant’s church who state that the applicant is a “faithful Catholic” who regularly participates in church activities and attends regular services.

15. The applicant appeared before the previously constituted Tribunal on 30 September 2015 and 18 November 2015. The Tribunal also received oral evidence from [Father E] and [name].

16. As indicated above, the matter was remitted to this Tribunal for reconsideration. Following the remittal to the Tribunal, the applicant’s representative provided a submission, dated 14 July 2016. The submission included a statutory declaration by the applicant, dated 14 July 2016, in which the applicant states that he lodged his application for a Protection visa in October 2013 and he maintains that all his claims are true; supporting letters from [Father E], a Chaplain and Pastor; and from [an official] of the [Organisation 3] and a supporting letter from [Mr D], [an official] of the [Organisation 2]. The letters confirm that the applicant has been attending the [Organisation 3] church since February 2012. [Ms C] states that the applicant is a “devout Catholic” who helps with various activities.

17. Several photographs of the applicant at various church activities were also provided.

18. The applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. At the Tribunal hearing, the Tribunal explained to the applicant that although some aspects of his evidence had been accepted by the Department and previously constituted Tribunal that it may make entirely different findings on the evidence he has provided, in particular his claims to have genuinely become a Catholic and to have been sought in China as a result of his purported distribution of material to his friends.

19. At the Tribunal hearing, the applicant provided various newspaper articles which are discussed below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for a Convention reason?

20. As indicated above, the applicant has claimed that he has a well founded fear of persecution as a result of his religion, which he has claimed is Roman Catholicism. Having considered all of the evidence, including the applicant’s oral evidence to the Department and during the Tribunal hearings, as well as the applicant’s written claims and the independent evidence, the Tribunal has serious concerns that following his inability to remain in Australia as a dependent on his wife’s visa, the applicant became a Catholic in Australia in 2012 and was baptised several months later for the purpose of fabricating claims for protection in Australia, and to that extent he has sought to embellish his claims by also claiming to have distributed material in China which will result in him being targeted by the Chinese authorities. Nevertheless, the Tribunal is prepared to accept that the applicant has, as a result of his involvement in Catholicism in Sydney, developed an interest in Catholicism following his attendance at Catholic mass and as a result of his involvement in various Catholic activities for some time whilst he has been in Australia. The Tribunal has some doubts that the applicant’s involvement and extent of commitment to Catholicism in Australia will extend to any continuing involvement in underground churches in China. However, even if he continues to participate in such activities, the Tribunal is not satisfied that that there is in a real chance he will suffer serious harm upon his return to China. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s Catholicism

21. As indicated above, the applicant has claimed to have first become interested in Catholicism in 2012 due to the breakdown of his marriage. During the Department interview, the applicant was asked about his conversion to Christianity and asked why he decided to become a Catholic in 2012, given that he had Catholic friends in China whom he had known for some time. The applicant stated that he met his wife soon after he arrived in Australia and they dated, married and formed a family together. It was later, when his marriage broke down that he felt very sad and he then became a Catholic, which “saved” him.  The applicant believes that it takes a while for God to choose people and he believes “God arranged this” and he has his reasons. When asked similar questions by the Tribunal regarding the factors which led to him becoming a Catholic, the applicant stated that [in] February 2012 his friend came to dinner. The applicant was still upset at that time about the breakdown of his marriage and was unable to control his emotions, and his friend asked him whether he was interested in Catholicism. The applicant had not previously given much thought to this, but his friend told him a story about a person who had an arrow in his heart which was poisoning his body and told him that until the arrow was removed he could not be healed. When advised by the Tribunal that it is unclear how this resulted in him making the major decision to become a Catholic, the applicant stated that he had tried different ways of healing himself, but they had failed. In response to the Tribunal’s comments that he appears to have been baptised after he lodged the Protection visa application, despite claiming to have been involved in the Catholic church on quite a significant basis since February 2012, the applicant stated that he was not baptised until that time because he did not believe he was “good enough” and had to take catechism classes. When asked how long it usually takes to be baptised from the time of commencement of catechism classes, the applicant stated that it is usually one year, but he felt that he had “too many sins to become a Catholic” and he continued to “really hate” his ex-wife. When advised that Catholics believe that baptism is about the cleansing of sins and there is no requirement that they are “good enough” the applicant stated that he could have been baptised at Easter, but he was not fully prepared.

22. When the applicant was asked by the delegate why he waited until 2013 to lodge his application, he stated that although he had been in Australia for some time he did not become a Catholic until 2012 and it is “God’s decision”. When advised by the delegate that it seems unlikely he has lodged the application because he fears harm in China, the applicant denied that this was the case. The applicant denied that he had become a Catholic for the purpose of establishing claims for protection and stated that he did not know he could apply for protection, and his friends had not been arrested until October 2013. When asked whether he had become a Catholic because he had decided he wanted to remain in Australia by lodging an application for a Protection visa, the applicant stated that this is not true and although he had lived in Australia for some time he was happily married and it was only after his marriage broke down that he thought he would become a Catholic.

23. When the Tribunal’s concerns regarding the timing of his conversion to Catholicism and the delay in the lodgement of the application were discussed with him during the most recent hearing, the applicant stated that he found out in September 2013 that his application for a Student visa had been refused. He had not attended the hearing with the MRT because he did not receive the invitation to appear. The applicant stated that he then lodged an application for protection because six weeks later he discovered that his friends had been arrested. The applicant stated that it was this which led him to make an application for a Protection visa in October 2013. He later also told the Tribunal that he also fears that he will be prevented from practising as an underground Catholic in China and from distributing religious material on the Internet.  When advised that it appears very coincidental that [Mr A] was arrested so soon after his application to the MRT was unsuccessful, the applicant stated that it may appear coincidental but he had hoped he could continue to be a student in Australia. The applicant also stated that prior to October 2012 he had “no idea” about protection visas and did not know he could apply for protection on the basis of his religion. When advised that this is difficult to believe, given that he had been in Australia since 2008, had studied in Australia, attended church since early 2012 and there is also a large Chinese community in Australia, the applicant stated that although he had been studying and attending church no-one told him about protection visas.

24. The Tribunal has had regard to the statements of support from several persons attesting to the applicant’s attendance at Catholic Church and other activities from 2012. The Tribunal accepts that although the statement by [Father E] is based on what he has been told by the applicant and some others, there are statements from other persons who confirm the applicant’s claims to have been involved with the Catholic Church since February 2012. The Tribunal accepts that the applicant was involved to some extent with the church since February 2012, but considers his evidence regarding the considerable delay in the lodgement of the application, and his baptism in December 2013, several months after he commenced his involvement in 2012, and his pursuit of a Student visa until September 2013, raises serious concerns as to the extent of his involvement. The Tribunal does not accept that the applicant was not baptised until 2013 because he did not consider himself “good enough” or because he had “too many sins”. In the Tribunal’s view, the timing of the applicant’s baptism in December 2013, which was two months after the lodgement of the Protection visa application, raises further concerns regarding his motivation for the baptism at that time.

25. The Tribunal also found the applicant’s account at the most recent hearing and previously of his reasons for becoming a Catholic to be unpersuasive, and his account during the most recent hearing to be indicative of someone who was reciting a prepared response. The Tribunal considers that the applicant’s explanation for why he became a Catholic after such an extensive period of time in Australia, where he does not claim to previously had anything other than very limited involvement in Catholicism or any other type of Christianity, to be unpersuasive. Although the Tribunal accepts that a marriage breakdown can be traumatic and persons experiencing this may take solace in religion, the Tribunal considers that the timing of the Protection visa application, which was made shortly after the applicant’s application for a Student visa failed before the MRT, combined with evidence indicating that although he had been in China and distributed material in June 2012 it was several months later in October 2013 that his father was purportedly harassed and his friends arrested and only then that he then found out about Protection visas, to raise serious concerns about the applicant’s motivation for applying for a Protection visa. The Tribunal does not accept the applicant did not know about Protection visas and considers that had he genuinely been committed to Catholicism to such an extent that he feared returning to China that he would have sought to lodge an application for protection at an earlier time, rather than pursuing a Student visa application to the Department and the MRT, and then only lodging a Protection visa following the refusal by the MRT.

1. In the Tribunal’s view, the lodgement of the application in October 2013, rather than at a considerably earlier time, in circumstances where he claims to have become a Catholic in early 2012, as well as the timing of  other factors discussed above, raise serious concerns that applicant became involved with the Catholic Church following the breakdown of his marriage because of his inability to remain as a dependent on his wife’s visa and that he  commenced fabricating claims for protection in the event that he was unsuccessful in obtaining a further Student visa. As stated above, the Tribunal does not accept his explanation for delaying his baptism until December 2013, given that his evidence indicates he could have been baptised at a considerably earlier time, and considers that the timing of the baptism raises further serious concerns that this was also motivated by his desire, a short time after his application for a Student visa failed, to embellish his application for a Protection visa.

   The distribution of religious material

2. In the Tribunal’s view, the applicant’s evidence in relation to the distribution of religious material to his friends in China is further indicative of the fact that the applicant has fabricated his claims for protection. As indicated above, the applicant has claimed that when he returned to China between May to June 2012 he gave a bible and a website address relating to Catholicism in Australia to his friends, [Mr A] and [Ms B] who are underground Catholics.  The applicant has claimed that it was after [Mr A] was arrested in October 2013 for possession of the Bible and the website address and the distribution of material that the police discovered that it was the applicant who was responsible. When asked by the delegate and the Tribunal at the most recent hearing why he would need to provide this information to [Mr A] and [Ms B][the] applicant stated that because some websites are blocked by the Chinese government they had to find the website through him.

3. When asked during the hearing why the Chinese authorities would be interested in him as a result of a bible and a website which does not appear to have anything on it which is critical of the Chinese government, the applicant stated that the link has a reference to some speeches given by the Pope, and one of them refers to a letter to Chinese believers. The other speeches relate to the ordination of bishops by the Roman Catholic Church and this is a “big problem” for underground Catholics in China. The applicant told the Tribunal that the bible had his name on it and they linked the bible to him, and during torture [Mr A] confessed that it was the applicant who had given him the website address. The applicant stated that [Mr A] was detained and sentenced to [number] years imprisonment. The applicant was advised that the independent information regarding the attitude of the Chinese authorities to bibles and religious websites does not support his claims. The applicant was advised that there no evidence of people accessing religious websites being harmed and indeed in Fujian, and indeed very little evidence of any persons being detained as a result of their involvement in underground Catholic churches. The applicant stated that many people have been persecuted for this reason and the fact that this has not been reported does not establish that such arrests are not occurring.

4. The applicant referred to the several articles he provided which he stated discuss the restrictions and monitoring of religious activities by the Chinese authorities; the way in which bishops are selected and ordained according to the approval by the CCP; the demolition of some churches and crosses in China; and some reports of protests against the President of the CCP when he visited the United States and protestors called for greater Internet freedom and the release of dissidents and persons detained for their religious beliefs. The applicant stated that just because it is not reported in China it does not mean it has not happened. If it is occurring in other parts of China there is no reason to believe that it is not happening in Fujian. The applicant also stated that [Mr A]’s wife is still in China, but she is on a “black list” and is making plans to smuggle herself to [another country].

5. The Tribunal has considered the articles and other independent evidence referred to by the applicant. As discussed at the hearing, the information cited by the delegate indicates that censorship and access to foreign sites which relate to the persecution of Christians is prohibited in China. As also discussed during the hearing, the website the applicant claims he gave to his friends in China does not contain information which is critical of the Chinese government, and the main page refers to [an organisation] which is the umbrella organisation for the [Organisation 1], the [Organisation 3] and [another organisation]. It also lists the names of other organisations and has links to other websites. Although there may be some links which refer to the Vatican and statements by the Pope, the applicant has not pointed to anything which is directly critical of the Chinese communist party. Furthermore, as discussed at the hearing, although the applicant disputed that many of the bishops in China have in fact been approved by the Vatican, the independent evidence referred to in the delegate’s decision record indicates that the Catholic Patriotic Association allows the Vatican “discreet input into selecting some bishops, and an estimated 90 per cent of CPA bishops have reconciled with the Vatican”. Whilst it reports that in some locations local authorities pressure unregistered Catholic priests and believers to renounce all ordinations approved by the Holy See, most of the Catholic bishops appointed by the Chinese government as CPA bishops were later “elevated by the Vatican through apostolic mandates”. There are also reports that “despite the tension between the Catholic Patriotic Association and unregistered Catholics, in many provinces CPA and unregistered Catholic clergy and congregations work closely together”.

6. The Tribunal accepts that the articles provide by the applicant show that China is one of the “worst abusers” of Internet freedom and to continuing violations of religious freedom in various parts of China. The Tribunal also accepts the applicant’s claims that underground religions are not permitted and are illegal and in such an environment there remains a potential for the authorities to act in an arbitrary and capricious manner. The Tribunal also accepts that the Chinese authorities closely monitor all of its citizens and this includes considerable restrictions on the Internet and access to overseas websites. However, the information cited by the delegate and set out in the attachment to this decision does not indicate that all access to religious websites is restricted or that persons who may gain access to unofficial bibles and other material which discusses the Pope and the role of the Vatican will be harmed in places such as Fujian. Importantly, as discussed extensively during the hearing, the evidence does not support the applicant’s claims that persons involved in underground Catholicism in Fujian have been targeted in China, and the evidence obtained by the Tribunal indicates that the last arrest of an underground Catholic in Fujian was in February 2010. Nor is there any evidence that the possession of a bible from a Western country (which is not approved by the registered church) has resulted in persons being detained, tortured and sentenced for four years or being placed on a blacklist. The Tribunal considers that the applicant’s claims that the possession of this material resulted, some 16 months after the applicant claims to have given a bible and website address to [Mr A] and [Ms B], is not credible and indicative of the fact that he has fabricated this claim in an attempt to embellish his Protection visa application and establish that it is not only because he is an underground Catholic but also because he has been involved in providing illegal material that he will be sought in China.

   The applicant’s return to China

7. Having considered all of the evidence, the Tribunal does not accept the applicant’s claims that he became a Catholic in 2012 due to the breakdown of his marriage. The Tribunal considers that the various factors discussed above are indicative of the fact that he became a Catholic because he wished to manufacture claims for protection in Australia, and following his inability to remain in Australia on his wife’s visa and his inability to subsequently obtain his own Student visa, he made this application. The Tribunal does not accept he gave religious material to his friends and this resulted in them being sought by the PSB or that his friend [Mr A] is imprisoned or [Ms B] is on a blacklist. Nor does the Tribunal accept that his father was questioned or that the PSB or that his father’s home was raided or he was taken to the PSB and questioned about the applicant. The Tribunal does not accept that the police had or have any interest in the applicant or that he is wanted by the police or that he will be questioned or detained or otherwise subject to harm upon his return to China.

8. As stated above, although the Tribunal has some doubts that the applicant’s involvement in Catholicism in Australia, which the Tribunal has found was motivated by his desire to create claims for protection, will result in his continual involvement in China. However, the Tribunal accepts that the applicant exhibited a good understanding of various Christian concepts at both the Department interview and during Tribunal hearings, despite a tendency to obfuscate by providing long and rambling responses on his views of the parables and his beliefs. The Tribunal is prepared to accept that the applicant wishes to continue his involvement with the underground Catholic Church upon his return to China. The Tribunal is also prepared to accept that the applicant is unwilling to participate in the registered Catholic Church. During the most recent hearing, the Tribunal advised the applicant that even if it was accepted that he would wish to worship in the unregistered or 'underground' church there was no evidence that he would be harmed for doing so. The Tribunal advised the applicant that the information available to the Tribunal indicated that the authorities in Fujian are more tolerant than in other Chinese provinces; there are many unregistered churches in Fujian; these churches operate quite openly; that the authorities are tolerant in Fujian and the last incident in which anyone was actually recorded as having been arrested for belonging to the unregistered Catholic Church in Fujian was been in 2010 (when Father Liu Maochun was arrested). The applicant denied on a number of occasions that the independent evidence indicates that there is considerably greater religious freedom in Fujian than some other provinces and claimed that there is a lack of reporting, rather than a lack of persons being arrested and detained due to their involvement in underground churches. At the Tribunal hearing, the applicant referred extensively to the ordination of clergy nominated by the Catholic church and stated that the Patriotic Association is independent of the Roman Catholic Church and will not allow bishops ordained other than by the Patriotic Association. The applicant stated that the Constitution does not allow underground religions and although the records rarely mention Fujian this does not mean it is not happening. He confirmed that his friends [Mr A] and [Ms B] had not been harmed in China because of their attendance at underground churches, although they had been actively involved with the church since 2010.

9. The applicant also claimed during the hearing that it is not only as a result of his involvement in underground Catholicism and the distribution of material that he will be harmed in China, but also because he will continue to proselytize on the Internet upon his return to China. The applicant told the Tribunal during the hearing that he enjoys using the Internet to promote religious material and also to arrange various activities and the Chinese government will not permit Christians to proselytize. When advised that evangelism is not a necessary part of the Catholic religion, the applicant stated that it is not a requirement to convert others but he believes that as a Catholic that it is necessary to spread the good news and he should spread the love of Gold to everyone. He stated, as an example, that although it is not necessary or required for Catholics to attend mass half an hour to pray and kneel down with the rosary many Catholics do it because they want to.

10. The Tribunal does not accept that the applicant will “proselytize” or evangelize to others upon his return to China. The Tribunal considers his claims that he will do so over the Internet to be indicative of his attempts to fabricate evidence to support his application for a Protection visa. The Tribunal does not accept that the applicant’s current involvement, although he might be involved in various activities, indicates he is actively involved in proselytizing or evangelizing or that he has proselytized or evangelized to others in China in the past or that he will do so in the future. Furthermore, although the Tribunal has had regard to the material provided by the applicant, the weight of the evidence which is set out in an attachment to this decision, indicates that for over a decade or more the adherents of the unregistered churches in Fujian, and the unregistered Catholic churches in particular, have been free to worship and to practice their religion in accordance with their beliefs. As discussed above, the Tribunal accepts the applicant’s claims that underground religions are not permitted and are illegal and in such an environment there remains a potential for the authorities to act in an arbitrary and capricious manner. The Tribunal also accepts that the Chinese authorities closely monitor all of its citizens and that there have been isolated instances in which practitioners of the unofficial Catholic Church in Fujian Province have been arrested, the most recent incident reported in independent sources is the arrest of Father Liu Maochun in 2010.  The Tribunal has had regard to the applicant’s claims about the lack of reporting in Fujian of harassment and arrests of underground Christians, but does not accept that the Catholic Community and other human rights groups would fail to report on the situation in Fujian and there is a noticeable dearth of reporting of abuses in Fujian by major human rights monitoring groups such as Amnesty International. The Tribunal considers that the fact that no similar instances of harassment or arrests have been reported in the period of over five years since 2010 indicates that there is in fact a high degree of tolerance for Christian activities in general and for the unregistered churches in particular in Fujian Province.

11. Having considered all of the evidence, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of his religion or for any other Convention reason. The Tribunal is satisfied that the applicant will be free to worship and to practice his religion as a member of the unregistered Catholic Church upon his return to China. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his religion or any other Convention reason, if he returns to China now or in the reasonably foreseeable future.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm?

12. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has found above that there is not a real chance that the applicant will suffer serious harm in China, even if he continues to have some involvement in underground Catholic churches in China. The Tribunal has not accepted that he will attempt to proselytise or evangelise or distribute material online when he returns. The Tribunal has also found that there is not a real chance that he will suffer serious harm if he returns to China. For the same reasons as those set out above, the Tribunal is also not satisfied that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to China.

13. The Tribunal finds, therefore, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

    CONCLUSIONS

14. 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).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. There is no suggestion that the applicant satisfies s.36(2)(b) and (c) 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

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

    Susan Pinto
    Member

    
    

    Relevant independent evidence

18. The following information is contained in the Department of Foreign Affairs and Trade (DFAT) Thematic Report, Registered religious organisations and other groups in the People’s Republic of China, 3 March 2015:

    Catholic activity has been growing steadily in China for three decades. The Chinese Catholic Patriotic Association (CPA) has managed Catholic affairs in China, including the appointment of Bishops, since 1957. The CPA does not recognise the authority of the Holy See to appoint bishops. From 1993 until 2010, the Vatican and CPA had struck an informal arrangement in some provinces, where the Vatican had some discreet input or even right of approval for bishop candidates prior to their ordination by the CPA. However, since 2010, the majority of bishops were ordained by the CPA without Vatican input. In April 2013, the CPA announced the Regulation on the Election and Consecration of Bishops, requiring candidate bishops to publicly pledge support for the CCP.

    Catholics who refuse to acknowledge the authority of the CPA have been described as “underground” or “unofficial” Catholics. There are approximately 40 Catholic bishops that remain independent of the CPA and operate unofficially.

    In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. Credible sources have told DFAT this was no longer required in areas where the Catholic Church had managed to build trust with local officials over time.

    Reports issued by the United States Commission on International Religious Freedom indicate that dozens of Catholic clergy, including three bishops, remain in detention, in home confinement, or disappeared in 2013. Overseas travel by prominent church members or leaders is largely viewed by authorities as out of bounds, owing to long-held fears about foreign funding or influence on communities in China. According to media reports, around half of 100 students who had planned to travel from China to South Korea to attend the Asian Youth Day event in August 2014 were prevented from attending.

    As with members of Protestant churches in China, Catholics in China can experience officially-sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive. Incidence of societal discrimination and violence against Catholics in China is generally low.[1]

    [1] DFAT Thematic Report, Registered religious organisations and other groups in the People’s Republic of China, 3 March 2015. Paras3.1.13-3.17

1. Fujian is a province on the south-eastern coast of China, and is the province from which most asylum seekers have come to Australia, including the applicants. Many, including the applicants, come from the county of Fuqing City[2], which is part of the prefectural city of Fuzhou in the north of the province. Although both the province and the county contain relatively large numbers of Protestants, there are few reports of repression of house-church Christians in the province and the county. In the 2006 edition of China’s Christians Millions Lambert also describes religious policy in Fujian as ‘relatively liberal’ however, he also notes the occurrence of ‘occasional crackdowns on house churches’. Lambert provides the following information on the Christian community in Fujian and the treatment of house churches (bolding added):

   Fujian has a thriving and rapidly growing Christian community. As a coastal province in the south east, it was one of first to be evangelised from the early 19^th century. By 1949 there were about 10,000 Protestants. Official estimates of Protestant Christians in 2004 were 1,179,000 – a twelve-fold growth after fifty-five years of Communism. In early 1999 a TPSM spokesman stated there were 4,000 registered churches and meeting points. In 2000 the TSPM magazine Tianfeng revealed there were over 1,200 pastoral workers in Fujian.

   Fuzhou, the capital, with its six surrounding rural counties and two smaller municipalities had at least 350,000 Protestants in 2002, meeting in 300 registered churches and 2,000 meeting points. In 2004 Fuqing City had 350,000 believers meeting in 520 churches, according to a Hong Kong Pastor. After Wenzhou, it is the area with the second greatest number of churches in the whole country and has been dubbed ‘China’s Second Jerusalem’. About 26 per cent of the population are Christian. Pingtan, a large island off the coast, has also seen incredible growth, from under 5,000 Christians in 1959 to 60,000 today, divided equally between registered and unregistered congregations. At least 15 per cent of the island’s population are Christians.

   The ‘Little Flock’ or ‘Assemblies’ were started by Watchman Nee in the 1930s and are still strong in Fujian, especially in the Fuzhou and Fuqing areas where they number many thousands. Many of them prefer to have no links with the TPSM. In Xiamen at least one third of the believers meet in over 100 independent house churches, according to a knowledgeable Hong Kong Christian. The ‘True Jesus Church’, another indigenous church is also strong in the province with some 70,000 members in total. They are very strong in Putian County, numbering about 20, 000 there. There are about 210, 000 Roman Catholics in Fujian. In general, the official religious policy has been applied relatively liberally in Fujian, although there have been occasional crackdowns on house churches and ‘underground’ Catholics.[3]

   [2] Fuqing is a ‘county-level’ city and is largely agricultural with over 90% of its one million population living in rural areas. It has a long history of legal and illegal emigration abroad.

   [3] Lambert, T. 2006, China’s Christian Millions, Monarch Books, Oxford, pp.240-1, CISBE8E6BE680

2. Lambert’s characterisation of Fujian as a relatively liberal province in relation to religious policy was supported by a Canadian government fact-finding mission to the province in 2000[4] and the executive secretary of the Hong Kong Christian Council in 2005.[5]  A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries[6]  newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that ‘[i]n general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house-church Christians in this province’. It should be noted that one of the sources for this report is the TSPM/CCC.[7]

   [4] Immigration and Refugee Board of Canada 2000, CHN34099.E ‘China: Report of a fact finding mission to Fuzhou by political counsellor, Canadian Embassy, Beijing’, 23 March < OGA7924783

   [5] In comments to the Immigration and Refugee Board of Canada (Immigration and Refugee Board of Canada 2005, CHN100387.E – China: Situation of Protestants and treatment by authorities, particularly in Fujian and Guangdong (2001-2005), 1 September < > OG8866BA47)

   [6] Global Chinese Ministries is described on the website of the Overseas Fellowship Mission (OMF) as: “Written by China expert Tony Lambert, this monthly newsletter shares current events, milestones and testimonies from around China to help you pray for Chinese people all over the world.” Source:

   [7] Global Chinese Ministries 2009, ‘The Protestant Church in Fujian Province’, OMF (Overseas Missionary Fellowship) International website, April  < CISE1310071628.  The information is said to be taken from information has been taken from November 2008 Tianfeng and History of Christian Missions in China by K.S. Latourette. Tianfeng is a Protestant magazine published by the TSPM/CCC and can therefore not be taken to be unbiased in relation to house churches.

3. Fujian is rarely mentioned in reports on breaches of religious freedom by the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch or the various Christian NGOs that report on China.

   ·In its Annual Report published in April 2015, China Aid includes a diagram of the total number of people detained by province, however Fujian province is not included in the diagram.[8] In November 2007 the Department of Foreign Affairs and Trade (DFAT) advised that they had no information on the treatment of unregistered churches in Fujian and reported on the difficulty in gaining politically sensitive information in China[9]  There have been a few actions against local Protestants in Fujian have been reported[10],[11],[12],[13].

   [8] China Aid Association 2015, China Aid 2014 Annual Report – Religious and Human Rights Persecution in China, 30 April, p.13, Table 4 <​ > CISEC96CF1731

   [9] Department of Foreign Affairs and Trade (DFAT) 2007,  CISQuest CHN9120 - 'Shouters' Christian group and Fujian Province, 28 November, CX189037

   [10] Li, Yao 2012, ‘Christians warn against cult influence’, China Daily, 20 December < >  CX312592

   [11] Department of Foreign Affairs and Trade (DFAT) 2013, RRT Country Information Request - CHN41439 - Family planning; Falun Gong; Christians, Returnees, and Corruption, Country Information Report No. 13/28, 3 July, CX310619

   [12] See Section 5 Cults and Sects

   [13] ‘Abduction and Building Closures in Fujian’ 2010, China Aid, 19 October < CX264498

4. The following is an extract of a response from the Country of Origin Information Section of the Department on the treatment of underground Catholic Church is by authorities in Fujian province. The report is dated 11 November 2013.

   In Fujian province, as in the rest of China, there is an official Catholic Church (the Chinese Catholic Patriotic Association or CPA) which owes its allegiance to the Chinese Communist Party, as well as an underground Catholic Church which maintains its allegiance to the Vatican. Most sources estimate the number of Catholics in Fujian at around 200,000 (or around 0.6% of Fujian’s population of 35 million).[14] Fujian is generally considered to enforce regulations on religion less stringently than other provinces in the PRC.[15] However, police and local officials have sometimes arrested underground Catholic priests and, although not recently, police and officials have arrested parishioners and demolished churches.[16] Chinese authorities have also appointed bishops to dioceses in Fujian without the approval of the Vatican.[17]

   Mindong diocese in south-eastern Fujian province has an underground bishop who leads nearly fifty priests and approximately 97 per cent of the 70,000 underground Catholics; the registered bishop leads seven or eight priests and three per cent of the faithful.[18] An article sourced from the Miami Herald, dated 14 January 2007, claims that the Chinese Communist party has “partially relaxed its grip on religious activity” in parts of the PRC, and that in Nanping, in Fujian, “religion thrives”. The article also indicates that in Nanping a “state-controlled Catholic Church draws new members, as does a parallel but underground Catholic Church that’s loyal to the Vatican”.[19]

   Few recent reports were found of problems for Catholics in Fujian, the most recent being a 24 March 2010 article on the Catholic news website Asia News IT. The report details the arrest of Father Liu Maochun, an underground Catholic priest from the diocese of Mindong, for being involved in the organisation of a camp for university students. Another priest involved in the camp, Father John Baptist Luo Wen, had reportedly been arrested previously and released after 15 days imprisonment. The article further notes that two other priests involved in the camp “received a notice of detention and expect to be taken into custody in the near future”.[20]

   There have been no reports of church demolitions in Fujian since 2006.[21]

   [14] The number of 200-210,000 is given by three sources: Liu, W T & Leung, B 2002, ‘Organizational Revivalism: Explaining Metamorphosis of China’s Catholic Church’, Journal for the Scientific Study of Religion, 41:1, p.133; Lambert, T 2006, China’s Christian Millions, Monarch Books, Oxford, p 241; Charbonnier, Fr J 2008, Guide to the Catholic Church in China 2008, China Catholic Communications, Singapore, p.517, MRT-RRT Library; Christian website Operation World, however, estimates the number of Fujian’s Catholics as 400,000: ‘China’ 2010, Operation World website, 15 January < > Accessed 11 May 2010

   [15] Lambert, T 2006, China’s Christian Millions, Monarch Books, Oxford, pp.240-1

   [16] For example, see: ‘Another underground priest arrested in Fujian’ 2010, Asia News IT, 24 March < Accessed 20 April 2010 <Attachment>;’Church destroyed in Fujian, another to follow shortly’ 2006, Asia News IT, 4 September < Accessed 21 April 2010

   [17] Macartney, J 2006, ‘China provokes Pope by naming bishop without Vatican’s blessing’, The Times, 15 May

   [18] ‘Another underground priest arrested in Fujian’ 2010, Asia News IT, 24 March < Accessed 20 April 2010

   [19] Johnson, T 2007, ‘In China, Christianity rises again; RELIGION’, The Miami Herald, 14 January

   [20] ‘Another underground priest arrested in Fujian’ 2010, Asia News IT, 24 March < Accessed 20 April 2010

   [21] ‘Church destroyed in Fujian, another to follow shortly’ 2006, Asia News IT, 4 September < Accessed 21 April 2010

5. Information from the Country of Origin Information Section sought in 2016 for a different matter indicates that there is no more recent information about the treatment of Catholics in Fujian province.

   ATTACHMENT - RELEVANT LAW

6. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   Refugee criterion

7. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

8. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

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

9. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

   (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.

   Complementary protection criterion

10. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

    In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.