1603594 (Refugee)

[2019] AATA 6795

1603594 (Refugee) [2019] AATA 6795 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603594

COUNTRY OF REFERENCE:                   China

MEMBER:Frances Simmons

DATE:26 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 26 September 2019 at 8:12pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholics – underground church – religious profile of family members – baptised shortly after birth – attends weekly church services in company of family – attends a Catholic primary school – intensifying crackdown on unregistered religious groups – increasing efforts to preventing children from attending unregistered churches or engaging in religiously based educational activities – deteriorating situation for underground Catholics in Fujian province – deprivation of religious freedom – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
BXD15 v MIBP [2017] FCA 1209
El Merhabi v Minister for Immigration and Multicultural Affairs [2000] FCA 42; (2000) 96 FCR 375
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220.
MZAFZ v MIBP [2016] FCA 1081
MZZNF v Minister for Immigration & Anor [2015] FCCA 1792
NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922; 83 ALD 518
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 26 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who is a citizen of China, applied for the visa on 4 March 2015. The delegate refused to grant the visa on the basis that the country information did not support the conclusion that the applicant, who is a child, would be subject to serious harm or significant harm because of his religion or because of the involvement of his family members in the underground Catholic church. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.  

6. 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

7. 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

8. The applicant is a [age] year old child who was born in Australia on [date]. His parents are citizens of China. The Tribunal, differently constituted, affirmed the Department’s decision to refuse to grant protection visas to his parents on 25 November 2013.  The Tribunal has considered the evidence that has been put forward in support of the review application, the evidence that was before the delegate and the evidence that was before the Tribunal in 2013.

9. A certificate purportedly issued pursuant to s.438(1)(a) of the Act has been placed on folios 45, 47-48, 53-56, 105 and 117 of Departmental file [number], restricting the disclosure of the information contained therein. This certificate 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’.

10. In MZAFZ v MIBP,[1] 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’ as this had never been a sufficient basis for public interest immunity at common law or under statute and did not identify the harm that could be done to an agency by their disclosure.[2]

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

    [2] 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].

11. Following this reasoning, the Tribunal finds that the s.438 certificate on the Departmental file is invalid and treated the information in the ordinary way. Certain information (f.45, 47-48, 105, 117) is of no relevance to the review. A compliance interview (f.53-56) that the applicant’s father attended in July 2013 is referred to in the delegate’s decision and was discussed at the hearing.  

    Claims to the Department

12. The Departmental file contains the marriage certificate of the applicant’s parents, the applicant’s birth certificate, and a certified copy of the signed baptism certificate for the applicant dated [date], which provides his parents’ names and is signed by [Father A], the parish priest of [Church 1] in [Suburb 1]. The applicant claims that if he travels to China with his parents he will face persecution because of his religion and the religious profile of his family members.

13. The applicant expanded on his claims in a detailed written statement (made on his behalf by his parents) and in oral testimony (given on his behalf by his father) to the delegate. What follows is a summary of the claims made by the applicant before the Department.

14. The applicant’s father was born in [Village 1], [Town 1], Fuqing City, Fujian Province. He was born into a Roman Catholic family and baptised shortly after he was born. His father’s family all belonged to the Roman Catholic Underground Church (the underground church) in China, as they do not consider the official church, which has been called the “Patriotic Church” or "Registered Church", as a genuine Catholic church. They have never attended the official church.

15. The applicant’s father grew up attending the underground church. A copy of his father’s baptism certificate appears on the Departmental file. The applicant’s father did not claim to have had problems over his involvement with an underground church in China, but in 2005 the applicant’s grandmother was arrested and detained by the Public Security Bureau (PSB) for about one and half months before later being released. His grandfather arranged for his father to study in Australia so that his father could practise his religion freely and pursue educational opportunities in Australia.

16. [In] September 2006, the applicant’s father arrived in Australia. Around December 2006 his father had to stop studying in Australia as he was unable to pay tuition fees due to financial hardship. His grandfather was unable to work because he suffered from [a medical condition]. His grandparents had to borrow the money from their friends and they are still in debt.

17. The applicant’s mother came from Fuqing, Fujian Province. She arrived in Australia [in] May 2008. Before she came to know his father in August 2012, she was not a Roman Catholic. His father persuaded his mother to attend [Church 1] at [Suburb 1], where his father has attended regularly since he arrived in Australia in 2006. His mother was baptised in 2013, and has become a devout Roman Catholic. [In] June 2014, his parents married according to the rites of the Roman Catholic Church. As genuine Roman Catholics, his parents believe that they will be persecuted by the PRC authorities if they go back to China.

18. The applicant claimed that in July 2012, his father’s friend organised an underground Catholic Bible study group for high school students, which his grandfather and another friend helped him with. He claims that [in] 2013, all three were arrested and that his grandfather is still in detention in Fuqing. A copy of a document purporting to be his grandfather’s detention notification is on the applicant’s Departmental file.

19. The applicant’s written statement makes various criticisms of the findings made by the Refugee Review Tribunal (RRT) in 2013. The applicant argues that his father is not an ordinary parishioner because he is connected to his grandfather and two other named persons who played leading roles in the underground church. It is claimed that the applicant’s grandfather has been in [jail] since [2013].

20. The applicant claims that his parents are devout Roman Catholics and will be persecuted because of their religious beliefs if they return to China. The applicant has been baptised and become a Roman Catholic and therefore he will face harm in China. In the interview with the delegate it was claimed that he feared being separated from his parents if they were detained for reasons related to their religious profile.

21. The delegate accepted that the applicant and his family are committed Roman Catholics in Australia. The delegate found that the applicant ‘would not be punished on his own account’ because his parents are members of an underground Catholic church in China. The delegate considered it highly unlikely that the grandfather of the applicant set up a bible study group without the approval of the Catholic Church in China and that he was convicted of any offence in relation to such an activity. While the delegate accepted that a child would feel psychological pain if he were temporarily separated from his father if he were detained by the authorities, the delegate was not satisfied the harm feared satisfied the requisite level of serious harm.

    Application to the Tribunal

22. On 22 February 2019, the applicant provided a letter from [Father A], Chaplain Pastor of [Church 1], dated 17 February 2019, stating that the applicant’s parents, [Mr B] and [Ms C], are members of [Church 1] and that they have been regularly attending the Chinese Catholic Mass every Sunday at [Church 1] since 2006 and 2013 respectively. The Tribunal was also provided with photographs of the applicant’s family at church.

23. The Tribunal also received letters of support from [Ms D], dated 5 February 2019; [Ms E], dated 20 February 2019; [Ms F], dated 18 February 2019; and [Ms G], dated 17 February 2019. These individuals identify themselves as parishioners at [Church 1] and affirm that the applicant’s family members are known to them as genuine Catholics. Three of the letter writers affirm that the applicant’s father has been attending church since 2006, while a fourth writes she has known the applicant’s father since 2007 when she began attending [Church 1].

24. At the hearing on 5 March 2019, the applicant’s father submitted a copy of the 2017 Religious Regulations. The Tribunal questioned the applicant’s father about the religious beliefs and practices of the applicant and his family in Australia and the experiences of his family members in China. Both the applicant and his younger sibling were baptised at [Church 1] and are being raised as Catholics in accordance with their religious beliefs. The youngest child had ‘not yet’ applied for a protection visa. The applicant attends a Catholic primary school. The family attends church regularly on Sundays and the applicant’s father, who has attended [Church 1] since he first arrived in Australia in 2006, also distributes brochures about the church and religious matters on a monthly basis. Where relevant his evidence is discussed further below in the assessment of claims and evidence.

25. The applicant’s father testified that if he returned to China, he and his wife would be detained because of their religious beliefs and the applicant would also suffer because he would be separated from his parents. He gave evidence that his family members are all underground Catholics but that their ability to practise their faith is inhibited because they are subject to monitoring and, on occasion, harassment by the Chinese authorities. The applicant’s father reiterated his claims that his father and two of his friends were arrested and detained [in] 2013 because of their involvement in providing bible study groups for senior high school students and gave evidence that while his father (the applicant’s grandfather) was released in 2017 the family was subjected to monitoring.  

26. The applicant’s father testified his family could not attend a state-sanctioned church because it conflicted with his religious beliefs as he believed the Catholic Patriotic Association churches were controlled by the Chinese Communist Party (CCP).  The applicant’s father reiterated his evidence that he was born into the underground Catholic church. The Tribunal discussed with the applicant’s father that, while he said he was baptised in a private residence, he submitted a typed baptism certificate purportedly issued by the Fuzhou Archdiocese [named] Church, which suggested that it was a baptism certificate from a registered Catholic church or a false document. The applicant’s father maintained he was baptised at home and the interpreter, who was provided with a copy of the baptism certificate, indicated that it had been mistranslated as the original document referred to [named] town, not [named] church.

27. The Tribunal discussed with the applicant the country information about the situation of Catholics who attend underground churches in Fujian province and the provisional agreement with the Vatican and the CCP concerning bishops appointed by the CCP and bishops appointed by the Vatican.  The Tribunal read to the applicant extracts of a letter that Pope Francis wrote to Chinese Catholics in September 2018 urging Chinese Catholics to overcome divisions for a ‘new chapter of cooperation’. The applicant responded that the agreement between the CCP and the Vatican was temporary, not permanent, and that the Chinese religious regulations made it clear that the CCP was the only body that could control the church in China and the bishops appointed by the Vatican were monitored by the government so that they no longer had power. He claimed that his objection to going to state-sanctioned church was that members of the clergy would be unable to express themselves freely as the government would control what they said. He claimed that if the authorities attempted to arrest the priests at the underground church he attended he would try and prevent the authorities from arresting the priests.  The Tribunal raised with the applicant that, even if it were to accept that the applicant’s family members were committed members of the underground Catholic church, it might not be apparent what harm the applicant, who was a [age] year old child, would face for reasons of religion. Where relevant, this issue, the relevant country information and the applicant’s evidence at the hearing are discussed further below.

28. On 21 August 2019, the Tribunal received a further letter from [Father A], dated 18 August 2019, affirming that the applicant attends [Church 1] in the company of his parents and his younger sibling. The Tribunal also received a letter from [Father H], dated 18 August 2019. This letter states the applicant’s parents and their two children are active members of the [Church 1]. [Mr B] and [Ms C] have regularly attended mass at [Church 1] since 2006 and 2013 respectively, and their two children have attended mass and participated in church activities since their birth.  The Tribunal also received a letter from [Mr I], Principal of [School 1], which is a Catholic Primary School in [Suburb 2]. The letter confirms that the applicant commenced at the school in [year]. The Tribunal also received a certificate given to the applicant from [School 1], which contains the exhortation to ‘show respect and be more like Jesus’ as well as various photographs of the applicant at school.

    Independent country information

29. 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.

1. Other estimates of China’s Catholic population range between 5.7 million and 12 million, of which an estimated half affiliate with the state-sanctioned Chinese Catholic Patriotic Association (CCPA).[3]

   [3] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section I, 20190624153309.

2. According to DFAT, 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, which came into effect in 2005 and were revised in 2017. DFAT reports that:

   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.

3. At the hearing, the Tribunal put to the applicant 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…

4. The Tribunal acknowledges that more recent reports suggest that there has been an uptick in the repression of unregistered churches and a deterioration in the state of religious freedoms in China.[4] Since DFAT published its report in 2017 there has been a 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 require churches to register with the government and worshippers to attend registered churches, with penalties for attending illegal religious gatherings.[5] The enforcement of these regulations has reduced the space for unregistered Christian worship as the State attempts to coerce congregants of underground churches to join state-sanctioned churches. For instance, the most recent annual report by Christian NGO ChinaAid concludes that state actors intervened more often in religious practice compared with the previous year.[6]

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

   [5] Department of Home Affairs, Unregistered Christians, People’s Republic of China, COISS, September 2018.

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

5. With respect to the situation of Catholics in China, the government and the Holy See do not have official diplomatic relations, and the Vatican has no representative in China.[7] However, as discussed at the hearing, in September 2018, the Chinese Communist Party and the Vatican came to a provisional agreement on the appointment of Catholic bishops after years of negotiations.[8] The Vatican recognised the legitimacy of seven state-appointed bishops and re-admitted them into the church, and agreed on a process for the appointment of bishops in which the Holy See will approve or veto candidates nominated by Beijing authorities after an initial diocesan election.[9] This agreement has been criticised by those who fear it could divide Catholics in the country and cedes too much power to Beijing.[10]  

   [7] ‘International Religious Freedom Report for 2017 (Includes Tibet, Hong Kong and Macau)’, US Department of State, 29 May 2018, p.6, Section II Legal Framework, OGD95BE927626.

   [8] ‘A step towards full diplomatic relations between China and the Vatican’, The Economist, 25 September 2018, CXBB8A1DA35990; ‘China cracks down on religion, crosses burned at Christian churches, Xi Jinping photos installed’, Australian Broadcasting Corporation, 25 September 2018, CIS7B839419621.

   [9] ‘Pope defends China deal on bishops, says he will have final say on names’, Reuters, 26 September 2018, CXBB8A1DA35981; ‘What's new with the Vatican-China deal?’, UCA News, 27 September 2018, CXBB8A1DA36113; ‘Pope admits underground Chinese Catholics will suffer after Vatican deal with Beijing’, Associated Press, 26 September 2018, CXBB8A1DA36072.

   [10] ‘Vatican signs historic deal with China – but critics denounce sellout’, The Guardian, 23 September 2018,  20190123131200; ‘With Vatican Talks and Bulldozers, China Aims to Control Christianity’, The New York Times,  24 September 2018, CXBB8A1DA35924.

6. The Chinese authorities have taken measures against bishops who remain unregistered and unapproved by the state.[11] During 2018 and 2019, authorities in Fujian province attended the premises of various unregistered churches and requested that they register their churches with the Chinese Patriotic Catholic Association.[12] Reports indicate that a standoff that existed between the former Fujian Diocese of Mindong Bishop Guo Xijin and the State prior to the agreement with the Vatican remains. Prior to the Beijing-Vatican agreement, a Vatican delegation visited Bishop Guo requesting that he take a subordinate role under the government-appointed bishop, Zhan Silu, in the Fujian Diocese of Mindong.[13] Guo is one of at least two underground bishops recognised by the Vatican, but not by the Chinese authorities, who have been asked by the Vatican to step down in favour of state-approved bishops.[14] Guo has been detained for brief periods by the authorities and resisted pressure to join the official Patriotic Catholic Association.[15] In March 2019, Asia News reported that the Religious Affairs Office would not recognise Guo Xijin as a bishop unless he joined the official Patriotic Association and had labelled his ministry as ‘illegal’.[16]

   [11] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section II, 20190624153309;

   [12] 'Underground Catholic Churches Closed in Fuzhou Archdiocese', Bitter Winter, 17 December 2018, 20190327101020; ‘House Church in Fujian Shut Down 8 Times’, Bitter Winter, 24 March 2019, 20190405110657;  'House churches in Fujian, Jiangxi and Guizhou received government warning', ChinaAid, 19 May 2018, CIS7B839419449;  ‘And Persecution of Underground Catholics Continues’, Bitter Winter, 12 January 2019, 20190405104539.

   [13] ‘Catholic Bishop Says He’s Willing to Step Down for Vatican Deal With Beijing’, The New York Times, 11 February 2018, 20190405090213.

   [14] ‘Catholic Bishop Says He’s Willing to Step Down for Vatican Deal With Beijing’, The New York Times, 11 February 2018, 20190405090213; ‘Second Chinese underground Catholic bishop steps aside to be succeeded by party-approved clergyman’, Agence France-Presse, 19 December 2018, 20190405084957.

   [15] 'China detains 'underground' bishop with role in deal with Vatican', Reuters, 28 March 2018, CXBB8A1DA24639;  ‘Catholic Bishop Says He’s Willing to Step Down for Vatican Deal With Beijing’, The New York Times, 11 February 2018, 20190405090213; ‘Msgr. Guo Xijin and blackmail in the diocese of Mindong after the China - Holy See agreement’, Asia News, 4 March 2019, 20190405092949.

   [16] ‘Msgr. Guo Xijin and blackmail in the diocese of Mindong after the China - Holy See agreement’, Asia News, 4 March 2019, 20190405092949.

7. In December 2018, Bitter Winter reported that ‘authorities are requiring underground churches to join the state-approved Chinese Patriotic Catholic Association if they want to continue holding gatherings’. According to the report, police have limited the size of church gatherings and closed at least four chapels in Fuzhou city, while at several other venues, the religious activities have been restricted. The report states:

   In Fuzhou city, in coastal Fujian Province opposite Taiwan, authorities have raided and harassed multiple meeting venues of the Underground Catholic Church on the grounds that “to hold gatherings, it is necessary to join the Chinese Patriotic Catholic Association (CPCA).” During the raids, believers were photographed and videotaped, and their personal information was registered. Plainclothes police took secret photos and videos of church clergy while they were changing into their clerical vestments.

   In late September, an underground Catholic meeting venue, which could accommodate more than 1,000 worshippers, was closed. According to the building manager, the Vatican-China deal of 2018 seems to have emboldened the Religious Affairs Bureau. Many underground meeting venues have been placed under surveillance, and priests are often summoned for questioning by the National Security Bureau.

   The building manager remains sanguine, saying, “We’re not afraid of being questioned. We didn’t do anything wrong. We want a separation of church and state. The government cannot control our beliefs.”[17]

   [17] 'Underground Catholic Churches Closed in Fuzhou Archdiocese', Bitter Winter, 17 December 2018, 20190327101020.

8. In January 2019, Bitter Winter claimed that, following the provisional agreement with the Vatican, the CCP is ‘upping its suppression and persecution of underground Catholic churches and believers’, reporting that:

   The Chinese government further uses the tentative agreement with the Vatican to force all underground churches to join state-approved ones. Never mind a nearly four-month-old provisional agreement with the Vatican – one that was supposed to ease decades-long tensions regarding the appointing of bishops – the Chinese Communist Party, or CCP, is upping its suppression and persecution of underground Catholic churches and believers.

9. The report continues that in December 2018, ‘officers from a police station in Taining county of the prefecture-level city of Sanming in … Fujian Province stormed into a local underground Catholic church meeting place in order to arrest the church’s priest and nuns’. Reportedly, ‘[w]hen the mission failed, the officers threatened an elderly believer, saying: “If we can’t find the priest, then we will take all of you away.”’ The article says that the following day the police conducted searches of the ‘dormitory’ where it ‘harassed’ believers and according to one believer, ‘seals were placed over the door of every room inside the church’, the statue of the Holy Virgin in the center of the courtyard was removed and the church’s cross dismantled. According to the report:

   “The government says that we were holding illegal gatherings. They told us to join the Chinese Patriotic Catholic Association and that we have to raise the national flag and sing the national anthem in the future,” one believer said. “They are making us leave God and believe in them [the government].”[18]

   [18] ‘And Persecution of Underground Catholics Continues’, Bitter Winter, 12 January 2019, 20190405104539.

10. In ‘House Church in Fujian Shut Down 8 Times’, 24 March 2019, Bitter Winter reported that in 2018, police intervened in the House of Bethel church located in Fuzhou city on the grounds that it was “causing a disturbance to the public.” It is reported that the police claimed the meeting venue didn’t have a religious activity venue registration certificate and ordered them to join the government-sanctioned Three-Self Patriotic Movement (TSPM) Church, or else be ordered to cease gathering altogether.  The report continues:

    Since the believers were unable to find a meeting venue at that time, they had no choice but to continue their gatherings there with great caution. To prevent police raids, after each gathering ended, they hid all the Bibles and hymnbooks. Soon afterward, personnel from the local fire department came to the church to conduct an inspection and sought to shut down the church on the grounds that “fire control measures were inadequate.”[19]

    [19] ‘House Church in Fujian Shut Down 8 Times’, Bitter Winter, 24 March 2019, 20190405110657.

11. On 8 November 2018, China Aid reported that the Christian Yongfu Church in Fuzhou in Fujian province had been ‘harassed relentlessly by authorities over the past few months’ after the church refused to make building modifications, was raided eight times within a two month period, before members of the church were ordered to no longer attend services there and the electricity and water for the church building were cut off.[20]

    [20] 'Fujian church experiences multiple raids', ChinaAid Association, 8 November 2018, CXBB8A1DA38720; 'Authorities break into church, harass Christians', ChinaAid Association, 29 October 2018, CXBB8A1DA37580.

12. On 19 May 2018, China Aid reported that ‘local governments in Fujian, Jiangxi and Guizhou sent out notifications shutting down the house churches and requiring the members to join the government sponsored Three-Self Church’. Reportedly, some churches received written warnings while others received verbal warnings. According to the report:

    The Chinese officials have intensified the persecution against house churches since the beginning of this year even preventing the church members from gathering. In early May, a house church in Nanping County, Fujian province received one of these notices. An anonymous local Christian said, “The officials from the county religious affairs bureau forbade us to meet. They said that our gatherings were illegal. They also told us that we should go to the Three-Self Churches if we wanted to meet. In fact, this church only has 20 to 30 regular members, who are all residents nearby. There are no outsiders.”

    A local Christian named Lin said that the government has treated the house churches more and more harshly: “The persecution has escalated. The Communist Party members, civil servants, and teachers are not allowed to have religious beliefs. The government of Nanping is investigating local house churches and recording the personal information of the Christians.”[21]

    Children attending the underground Catholic church  

    [21] 'House churches in Fujian, Jiangxi and Guizhou received government warning', ChinaAid, 19 May 2018, CIS7B839419449.

13. The 2017 religious regulations stipulate new registration requirements for religious schools. Only the five patriotic religious associations or their lower-level affiliates are permitted to form religious schools. Regulations do not allow religious structures to be transferred, mortgaged, or used as investments and place new restrictions on religious groups conducting business or making investments, and limit foreign donations.[22] The CCP adheres to atheist ideology and law mandates the teaching of atheism in public schools. The regulations, along with polices enacted by patriotic religious associations, increasingly operate to prevent children under 18 years of age from participating in religious activities and religious education.[23] In 2019 the United States Department of State reported that: 

    The revised religious regulations implemented in February and policies enacted by the state-sanctioned religious associations inhibit children under the age of 18 from participating in religious activities and religious education. For example, one provision states that no individual may use religion to hinder the national education system and that no religious activities may be held in schools other than religious schools. At the county level, religious affairs bureaus in localities including Henan, Shandong, Anhui, and Xinjiang have released letters telling parents not to take their children under 18 to religious activities or education.  The law mandates the teaching of atheism in schools, and a CCP directive provides guidance to universities on how to prevent foreign proselytizing of university students. [24]

    [22] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section II, 20190624153309.

    [23] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section II, 20190624153309.

    [24] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section II, 20190624153309.

1. During 2018, in a bid to separate religion from education, some provincial and local governments pressured churches to prevent children under 18 years of age from attending services or studying the Bible. Reportedly, local government departments of religious affairs and churches in Jilin, Heilongjiang, Henan, Shandong, Anhui and Jiangxi provinces dissuaded or released public notices proclaiming minors could not enter religious venues or attend religious activities. In Henan province, officials reportedly repurposed some TSPM churches as Communist Party schools, cultural centres, and activity hubs.[25] In Zhejiang Province, educational authorities reportedly asked students about the religious beliefs of their families. Later Christian parents were visited by authorities to be persuaded to renounce their religious beliefs. On occasion authorities used employers to pressure parents to renounce their religious beliefs.[26]

   [25] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section II, 20190624153309.

   [26] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, Section II, 20190624153309.

2. An earlier report on religious freedom in China published in 2018 by the US Department of State (USDOS) highlights religious policy is applied unevenly across provinces, allowing for children to participate in religious-focused education and activities in some provinces, but reporting restrictions elsewhere. Despite noting ‘an overall tightening in spaces for unregistered churches to operate’, the USDOS recorded that in some areas, members of unregistered churches said they had more freedom than in the past to conduct religious services, as long as they gathered only in private and kept congregation numbers low. [27] However, the report says that ‘[c]ivil society reported authorities in one city forbade vacation Bible sessions for children during school breaks – a change from the previous year, while authorities refused to allow weekend religious education programs in numerous other cities across the country’ and reports that during 2017:

   Officials continued to hold “anticult” education sessions and propaganda campaigns affecting schoolchildren and their families. Some officials required families to sign statements guaranteeing they would not take part in unregistered churches and “cult organization” activities related to Falun Gong as a prerequisite for registering their children for school.[28]

   [27] 'International Religious Freedom Report for 2017 - China (Includes Tibet, Hong Kong and Macau)', US Department of State, 29 May 2018, Section II, p.23, OGD95BE927626.

   [28] 'International Religious Freedom Report for 2017 - China (Includes Tibet, Hong Kong and Macau)', US Department of State, 29 May 2018, Section II, p.30, OGD95BE927626.

3. One instance was located of children being prohibited from attending a church kindergarten in Fujian: in January 2019, Christian NGO China Aid reported that a kindergarten established by the Xunsiding Church and parents in Xiamen, Fujian, was demolished after being issued a notice by the ‘departments of religion and education’ advising them that the kindergarten is not authorised to engage in early childhood education.[29] However, in other provinces of China there are numerous reports of state actors dissuading children from attending churches during 2018.

   [29] 'Church kindergarten forcibly demolished', ChinaAid Association, 26 January 2019, 20190205135103.

4. In April 2018 UCA News reported that ‘Beijing’s crackdown on Catholic and Protestant churches is intensifying in seven dioceses out of 10 in China’s central Henan province’. During the ‘crackdown’ ‘[o]fficials stormed several churches in Zhengzhou Diocese and drove children away during Easter Sunday Mass. Since then, police vehicles have been stationed outside churches every Sunday, and at least three officers have blocked minors, and even babies, from entering the churches in each of the diocese’s parishes’. The report says that Anyang Diocese school children were asked to report on their beliefs. Also, in Shangqiu Diocese, authorities told parents that their children would not be allowed to attend school if they believed in religions. The report does not indicate whether directives from authorities were issued in relation to children attending unregistered churches or churches within a diocese where the Bishop has not registered with the state’s Catholic Patriotic Association.[30]

   [30] ‘Church crackdown intensifies in China's Henan province’, UCA News, 20 April 2019, 20190411110641.

5. In April 2018 Asia News reported that a ‘circular notice’ had been issued banning religious education for minors in two provinces – Henan and Xinjiang. According to the report:

   In Henan, a circular notice dated April 8 prohibits all young people under 18 years of age from entering church to attend mass. It also forbids priests to organize any activities - conferences, summer or winter camps, etc ... - with young people. […] The directive - justified as an application of the new religious regulations - is to be rolled out across both official and non-official communities. A priest from Anyang says that every Sunday PA agents stand at the entry to his church sending children who want to attend the mass away and that they have also posted a sign carrying the ban. The circular note has been issued in every city, village, school. According to AsiaNews sources, the directive is in place not only in Henan, but also in Xinjiang.[31]

   [31] ‘Henan, church banned for children under 18: ‘taking the legs from under the Christian community’s growth among young people'’, Asia News, 17 April 2018, 20190327104717;‘Xinjiang, crosses, domes, statues destroyed: the new ‘Sinicized’ Cultural Revolution’, Asia News, 2 March 2018, 20190409145444.

6. In May 2018, Catholic news outlet America Media published an article about authorities prohibiting children from attending church in Henan province, which is ‘estimated to have a Christian population of several million – including roughly 300,000 Catholics’. The report says that according to a notice issued by the ‘state-backed Henan provincial Patriotic Catholic Association and Henan provincial Catholic Administration Commission dated April 8, churches must stop congregants from bringing their children to Mass and cease hosting retreats and training activities for children’.[32]In March 2018, UCA News reported that a ‘Catholic-run kindergarten’ in Henan was sealed after police stamps were posted on the school's gate on Feb. 14 and March 14’.[33]

   [32] ‘Why the Chinese government is targeting young Christians in its latest crackdown’, America: The Jesuit Review, 1 May 2018, 20190409151425; ‘Catholics in China's Henan warned not to cross 'red line'’, UCA News, 18 April 2018, 20190409151425.

   [33] ‘Chinese Catholic-run kindergarten seized’ UCA News, 28 March 2018, 20190409155129.

7. In March 2019, China Aid highlighted multiple instances of state actors intervening in the religious practice of Christian children including: reports that a church in Henan province displayed a notice “banning children from entering church”;[34] an elementary school in Tanghe county, Henan province, wrote an open letter to parents, threatening to kick their children out of school if the parents refuse to sign a statement promising not to lead their children to follow Jesus;[35] a report that in January 2018 Guanghe County in Gansu’s Linxia Hui Autonomous Prefecture issued a notice to middle, elementary, and kindergarten schools, forbidding their students to enter religious sites to participate in religious activities or go to scriptural schools to study or chant religious texts.[36]In addition:

   On April 8, 2018, Henan Provincial Patriotic Catholic Association and Henan Provincial Administrative Commission of the Chinese Catholic Church issued The Notice to Limit/Bar Minors from Entering Churches, stating that “According to the ‘principle of adhering to the separation of religion from education’ issued by the provincial religious affairs Bureau on April 3, and in implementing the stipulations in Regulations on Religious Affairs, i.e. ‘Religious activity sites are prohibited from hosting any form of training sessions to provide religious education to minors,’ the Chinese Patriotic Catholic Association and Chinese Administrative Commission of the Chinese Catholic Church in all areas shall implement the following regulations: ‘1) All the religious activity sites across the province shall not provide religious education and training to minors, or classes in the name of summer camps or winter camps; 2) Persuade believers who go to churches to attend worship services or Mass to find childcare instead of taking their children to church; 3) Take these regulations seriously. They used to be communicated through propaganda and education, but now are implemented as legal mandates; 4) People in charge of religious activity sites will be held responsible for the violations of the regulations above, which may lead to the clergy’s loss of registration with the government and the shutdown of the sites for religious activities.’” As a matter of fact, however, one of the grounds this notice is based on, “religious activity sites are prohibited from hosting any form of training sessions to provide religious education to minors,” does not even exist in the new Regulations on Religious Affairs. It was fabricated to justify the regulations listed in the notice.[37]

   [34] 'ChinaAid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.10, 20190307125741.

   [35] 'ChinaAid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.11, 20190307125741.

   [36] 'ChinaAid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.21, 20190307125741.

   [37] 'ChinaAid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.22, 20190307125741.

8. The report also says that ‘elementary schools and middle schools launched activities to resist and prevent religious activities’. Examples include:

   ·     In the Notice About Effectively Conducting Safety Education Among Elementary School and Middle School Students in 2018, the Ministry of Education’s Elementary Education Department emphasized “preventing religion’s infiltration into schools” and specifically requested “… increasing awareness of religion’s infiltration into schools and preventing it from doing so and deeply launching atheism, scientific knowledge, and culture into schools.”[38]

   ·     On Jan. 11, Guangxi province’s Hezhou Daily reported that the Zhaoping County Politics and Law Commission joined hands with the county’s propaganda department, United Front Work Department, public security bureau, education bureau, and ethnic and religious affairs bureau to launch the “Banning Religion From School Campuses” campaign, which covers eight schools, including Zhaoping Middle School and Zhaoping No. 1 Elementary School, and over 900 teachers.[39]

   ·     In March 2018, there was a Notice about Religious Policies Concerning Schools circulating on the internet, allegedly released by Henan province’s education departments. The notice specified that no religious organizations should be allowed to spread their faith in schools and that prayer and religious discussion were “illegal.” In addition, it urged teachers to explain the regulations outlined in the notice to the students and forbade students from taking friends to religious activities. The notice called schools “a battlefield for fostering the constructors of socialism for the CCP and China….”[40]

   [38] 'China Aid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.22, 20190307125741.

   [39] 'ChinaAid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.22, 20190307125741.

   [40] '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.22-23, 20190307125741.

9. The report states that ‘[s]ome schools in Henan and Zhejiang not only requires teachers to not practice a faith but also investigate students’ religious beliefs. Schools formulated surveys to have students provide information about their religious beliefs, and students who professed to be followers of a religion would be interviewed by school authorities. This has never happened in China’s history, not even in the Cultural Revolution.’[41] The report also provides examples of state-influenced actions that deter religious participation of children at churches, including the display of slogans on church walls and doors that say “Evangelizing minors is forbidden at religious activity sites,” including:

   [41] 'China Aid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, p.23, 20190307125741.

   ·     On Easter Day on April 1, while the Catholic Church in Henan’s Zhengzhou Parish was holding a mass, government agents broke into the church to drive out children. On the following Sundays, there were always law enforcement vehicles parked in front of the church and law enforcement agents guarding the door of the church, disallowing believers to bring their children into the church, not even babies.

   ·     In early April, the government forcibly put up a sign at the entrance of a Catholic church in Henan’s Anyang Parish, which said, “Minors are not allowed to enter the church.” On Sundays, law enforcement agents guarded the church’s entrance, and government agents went from door to door to warn people that “Religion is not allowed now; for those who continue to believe in religion, their children will be expelled from schools, and their old family members will lose their low-income subsidies; those who still refuse to give up religion will lose their jobs, and their retired family members will lose their pension as well.”

   ·     Schools in Anyang District asked students to reveal whether their parents are religious and what religion they believe in, and parents were asked to register their religious beliefs with the schools. On April 11 and April 12, Linzhou’s No. 9 Elementary School in Anyang and Chengguan Prefecture’s No. 1 Elementary School in Xinyang both released “An Open Letter to the Parents of Elementary School and Middle School Students: Why are Minors Not Allowed in Religious Activity Sites?” The letter stated, “It is illegal for any organization and individual to guide, support, allow, and condone minors to follow religion and engage in religious activities; believing and non-believing parents shall both tell their children not to enter into religious activity sites and participate in religious activities and training.” The “Open Letter” also required parents to sign the letter and put down their children’s names and class numbers.

   ·     On April 17, children’s Bibles and books were confiscated by government agents from Beixishang Church in Jiaozuo, Xinxiang Parish, Henan.

   ·     In August, news on the internet showed that instances had occurred in Henan’s Anyang and Anhui’s Ma’anshan in which believers were forced to sign an agreement promising not to believe in Christianity.

   ·     Multiple counties and cities in Shandong province screened CCP members for religious beliefs and asked them to sign a statement promising “not to believe in religion.” According to local Christians, in Qingdao and its suburbs, the government investigated both house churches and Three-Self Churches, including believers’ family backgrounds, history of religious beliefs, and social connections. A believer from Shandong who posted anonymously on the internet that the authorities used “guilt by association”, “shared interests” and other means to make the financial interest of all the employees at a workplace contingent on a few Christian CCP members’ decision, so that if one Christian refused to sign the statement, all his coworkers would suffer, and every person would lose a hefty bonus of up to 20,000-30,000 yuan ($2,978.76-$4,468.14 USD). Therefore, many Christians struggled deeply and had to sign the statement to promise “not to follow religion.” Some Christian CCP members serving on church staff were given fines.

   ·     Threatening to “pull children out of schools” and “withhold the 160-yuan ($23.83 USD) subsidy income from seniors,” Henan province’s prefectures and township governments coerced Christians to give up their beliefs. Village officials went from door-to-door to demand believers to relinquish their religious items and forbid their children to believe in Christianity.

   ·     In mid-August, a Christian named Chen Shuaiyuan in Xuyi County, Henan, was told by the village commission to sign a statement to promise to “give up belief in Christianity, obey the CCP’s instructions, and follow the CCP adamantly.” His family and friends were also asked to sign the statement as witnesses of him making this promise.

   ·     On August 29, Preacher Zeng and an elder from Enfu Church in Tanghe County, Henan, along with a few female church members, were summoned to Nianpanqiao Villagers’ Committee by the township government. In the presence of the headmasters of all the elementary schools in the area, church leaders and members were pressured to sign an agreement to forbid children from attending the church’s Sunday services.

   ·     On Sept. 2, Tongzhaipu Township’s Zhongxin School in Henan’s Tanghe County sent an open letter to parents, intimidating them into signing a statement to promise not to make their children follow Jesus, or their children would be expelled from school.

   ·     A school in Lucheng District, Wenzhou, Zhejiang, issued a notice to its teachers, claiming that according to the guidelines from the local education bureau’s emergent meeting, teachers in the district’s education system must “not believe in religion”, “not preach about religion” in classrooms, and students must “not learn about religion.” According to this notice, from Sept. 20- 30, the provincial (Zhejiang province) government would be secretly inspecting Wenzhou and churches in Wenzhou, and the scope of inspection would include “whether teachers engage in evangelism on the weekends and whether students receive religious teachings.” Starting from Oct. 5, the State Council would come to Zhejiang province to openly inspect and secretly investigate, and Wenzhou would be the focus of their inspection.

   ·     Since October 2018, Tianzhong Church in Yicheng District, Zhumadian, has publicly prohibited five categories of people from entering churches: the CCP members, government officials, minors, school students, and military servicemen on active duty.[42]

   [42] '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.50-52, 20190307125741.

10. The report says that during 2018 restrictions were imposed on some religious schools:

    ·     On Feb. 14 and March 14, citing “incomplete legal papers,” public security agents closed down Tian’ai (Heavenly Love) Kindergarten twice, which was operated by Zhifang Church in Anyang Parish, Henan province. Ironically, several other kindergartens nearby, which are without a church background and are less well-equipped, have never been closed down.

    ·     Since October 2017, the government in Beijing’s Changping District has been constantly pressuring the landlord of the Beatitudes School, run by Beijing-based Aijiabei Christian Church, to terminate the lease. Under intolerable stress, the school moved away in January 2018. On the morning of March 25, however, about 20 men suddenly broke into the school’s new location and tossed out office and teaching supplies. At about 5:00 a.m. on March 29, under the protection of police, about 10 security guards blocked the entrance to the school, cut open the lock on the gate, broke into the kindergarten to disperse staff on duty, took teaching supplies, including chairs and books, and used shields and metal pitchforks to intimidate teachers and parents, and even dispersed and injured some parents. On March 29 and 30, for two days in a row, the authorities hired security guards to block teachers and school employees off from the school’s entrance.

    ·     On April 16, about 20 agents from the religious affairs and education bureaus broke into Maizhong Kindergarten, founded by the Xiamen-based Shangli Church. Without showing any legal documents, they claimed to “have received reports” and therefore initiated “law enforcement” actions. They asked questions about the number of students. the textbooks used by the school, and the registered religious publications. The person who headed the group claimed that Maizhong Kindergarten was not registered with the government and therefore was “illegally providing education.” They showed up with cameras and video recording equipment and filmed the children’s morning worship service. Agents from the religious affairs bureau thoroughly documented the names of classrooms and reviewed the church’s worship songs and Bibles. They also required the school to submit the roster of students, course schedule, and study materials.

    ·     On June 26, government agents from the education bureau, public security bureau, religious affairs bureau, civil affairs bureau, and the comprehensive management and stability maintenance office came to the school run by Bible Reformed Church, demanding that faculty and students’ personal information be registered and ordering the church to stop running the school illegally and asking to send students to public schools.

    ·     In the Early Rain Covenant Church case, the church’s humanities school, seminary, and Covenant Reformed School were all outlawed, with all facilities ransacked and looted.[43]

    [43] '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.55-56, 20190307125741.

1. An earlier report in 2014 by the Canadian Immigration and Refugee Board quotes the President of ChinaAid as stating that that the arrest and interrogation of members' children "does happen" and that children who are found attending a Sunday school that is raided "may" be interrogated in order to get more information and arrest the adults, as well as reports that authorities “harassed or detained” the family members and children of religious leaders and religious freedom activists.[44]  

   ASSESSMENT OF CLAIMS AND EVIDENCE

   [44] Canada: Immigration and Refugee Board of Canada, China: Treatment of "ordinary" Christian house church members by the Public Security Bureau (PSB), including treatment of children of house church members (2009-2014), 10 October 2014, CHN104966.E, available at:  

   Country of reference

2. According to the protection visa application, the applicant is a citizen of China. The Tribunal accepts the basis of the certified copy of the applicant’s birth certificate that he was born in Australia, and that his parents are both citizens of China. Under Australian law, the applicant did not acquire Australian citizenship by virtue of his birth here.

3. According to Article 5 of the Nationality Law of the People’s Republic of China, if a parent of a person born abroad is a Chinese national or both parents are Chinese nationals, then that person shall have Chinese nationality. The Tribunal accepts that according to Chinese law the applicant is a national of China by virtue of being born abroad to two Chinese nationals.

4. Therefore, the Tribunal accepts the applicant is a citizen of China and that China is the receiving country for the purpose of assessing his claims.

   Credibility assessment

5. 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.[45] In this case the applicant is a [age] year old child. The Tribunal has therefore assessed the credibility of the claims made on behalf of the applicant by his father. 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.[46] 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.[47]

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

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

   [47] 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.

6. The Tribunal accepts that the applicant’s parents are committed Roman Catholics. Based on the oral and documentary evidence before it, the Tribunal accepts that the applicant was baptised shortly after his birth in [year], attends weekly church services in the company of his family, and attends a Catholic primary school because his parents want him to receive an education that reflects their religious beliefs and values.  The weight of evidence before the Tribunal leads it to conclude, as did the delegate, that the applicant’s parents are committed Roman Catholics. When the applicant’s parents appeared before the Tribunal (differently constituted) in 2013 they were accompanied by [Father A] of [Church 1] and two female parishioners, and these witnesses testified that the applicant’s parents were genuine Catholics. Six years later the applicant’s parents still attend [Church 1] and the Tribunal has  considered the letters of support from [Father A] and an assistant pastor signed in 2019, affirming that the applicant and his family are committed Catholics. The Tribunal is also accepts, based on the evidence before it, that the applicant’s father was born into the Catholic faith, was an adherent of the underground Catholic church in China and that his paternal grandparents and extended paternal family are adherents of the underground Catholic church in Fujian province.

7. The application made by the applicant’s father in 2013 failed because, while the Tribunal accepted the applicant’s parents were Catholics, the Tribunal did not accept applicant’s father would be at risk of harm in China because his family members had attracted the adverse attention of the authorities and disbelieved the claim that the applicant’s grandfather was detained in 2013. At the hearing the applicant (through his father) reiterated his claims that his grandmother was detained in 2005 because of her involvement in a women’s church group and also expanded upon his claims that his grandfather was detained between 2013 and 2017 because of his role in establishing a bible study group. The applicant claimed that while the detention notice submitted to the previous Tribunal indicates the maximum period his father could be detained was 30 days, his father had been arbitrarily detained for a longer period of time. However, as discussed at the hearing, the country information indicates that fraudulent documentation is readily available and the Tribunal considers that the detention notification has limited probative value.  Furthermore, as discussed at the hearing, the Tribunal finds it concerning that the applicant’s father did not refer to the detention of his father or the problems that he claims his family members have encountered because of their religion at his compliance interview in July 2013. Having regard to the country information, the Tribunal does not consider the applicant’s claims about the detention of his family members can be dismissed as implausible but does consider aspects of his evidence about this issue are problematic. However, ultimately, the issue of whether the applicant’s grandparents have been detained in China is not determinative of the outcome in this review.

8. The Tribunal considers that the country information indicates that, as part of an intensifying crackdown on unregistered religious groups, the Chinese authorities are devoting increasing efforts to preventing children from attending unregistered churches or engaging in religiously based educational activities, as well as – in some locations – seeking to prevent children from attending state-sanctioned churches. In 2013, the Tribunal (differently constituted) that assessed the application by the applicant’s parents cited country information that suggested that the Chinese authorities were showing increased tolerance for unofficial religious activity and that Fujian province was generally regarded as one of the provinces of China that is said to have applied regulations on religion more liberally than others. However, six years later, the space for believers to practise their faith outside state-sanctioned churches is shrinking, not expanding. The situation of underground Catholics in Fujian province, which was previously considered to be a province that had applied regulations on religion more liberally than others, has deteriorated significantly in recent years.  As noted above, as a result of the provisional agreement between the Vatican and the CCP, underground churches in Fujian province have been shut down and members of underground churches have come under increasing pressure to join the Chinese Patriotic Catholic Association.

9. The Tribunal acknowledges that country information indicates that there are significant numbers of Catholics attending both registered and unregistered churches in Fujian Province.  While it is unnecessary for the Tribunal to consider whether ordinary members at an underground Catholic church in Fujian province would face a real chance of serious harm for reasons of their faith, the Tribunal considers that there is a real chance that a family of underground Catholics who seek to attend an underground church with their children and educate their children in the Catholic faith outside of state-sanctioned boundaries will attract the adverse attention of the authorities. As noted above, there are reports that underground churches in Fujian province have been forced to close, ordinary members of underground churches have been detained and, in some cases, raids on underground churches have resulted in the detention of children. There are also reports that the Chinese authorities employ more subtle forms of coercion to prevent children from being indoctrinated in the beliefs of the underground church: as noted above, there are multiple reports that parents are threatened that if they do not desist from taking their child to an unregistered church that child will not be able to enroll in school, as well as reports of increased surveillance of classroom discussions at all levels of education, enabling the State to identify and punish children for expressing religious views. 

10. The Tribunal accepts that the Chinese authorities use sophisticated surveillance technology to monitor, harass, intimidate and pressure members of religious communities who operate outside state-sanctioned boundaries, including in Fujian province. The Tribunal accepts that the applicant’s father, who gave evidence on behalf of the applicant, was able to explain why he and his family would attend an underground Catholic church, but not a state-sanctioned Catholic church. The Tribunal accepts that the applicant (through the agency of his parents) is committed to practising his faith in the underground Catholic church and, despite the recent agreement between the CCP and the Vatican about the appointment of bishops, maintains a strong objection to attending a state-sanctioned Church as he considers it to be controlled by the CCP, and not a true Catholic church. The applicant’s father told the Tribunal that if the priest was arrested he would try and stop this arrest and this would be seen as a challenge to the CCP. He also told the Tribunal that the applicant could not attend a registered church as the bishops are controlled by the CCP and if they attended these churches their spirits would not be saved.

11. The Tribunal accepts that if the applicant were to return to China with his immediate family he would attend an underground church with his family and the applicant (through the agency of his parents) would be raised as an underground Catholic, and also that his parents would seek to provide him with a religious education as they have done in Australia. The Tribunal accepts that the applicant (through the agency of his parents) would not attend a state-sanctioned church. Given the country information indicates that the Chinese authorities are restricting the freedom of children to attend unregistered church gatherings as well as, in some locations, state-sanctioned churches, the Tribunal accepts that the applicant’s participation in unregistered religious activities in China would elevate the risk that his parents would attract the adverse attention of the authorities. As noted above, there are reports that the Chinese authorities have arrested and detained children when they raid unauthorised religious gatherings, although such reports are relatively rare.

12. The Tribunal accepts that the applicant’s parents hold, on behalf of the applicant, a subjective fear that he will face serious harm because of his religion. The applicant, as a child, has no independent agency of his own, and his parents have determined that he receive the sacrament of baptism in accordance with Catholic tradition, attend Catholic church and Sunday school, be educated at Catholic school and be raised as a person of the Catholic faith.  Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) protects the right of every person to manifest religious beliefs and values and manifest them ‘either individually or in community with others and in public and private’ and specifically to engage in ‘worship, observance, practice and teaching’, while article 18(2) provides that no one shall be subject to coercion that would impair his freedom to have or to adopt a religion or belief of his choice and article 18(4) expressly allows parents the liberty to ensure the religious and moral education of their children in conformity with their own convictions. The Tribunal accepts that the applicant’s parents have decided to raise the applicant as a Catholic as a genuine manifestation of their religious beliefs and values, which they express through worship and by raising the applicant and his sibling in conformity with their religious convictions.

13. Section 5J(4)(b) of the Act requires that persecution involve ‘serious harm’ and s. 5J(5) of the Act sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. While the inability to practise religion is often enforced by other types of serious harm, such as arbitrary detention or denial of access to services or the enforced separation of a parent from a child as a result of the parent being arbitrarily detained[48], the Tribunal finds that the deprivation of religious freedom is itself a form of serious harm. The prohibition on children attending unregistered churches and, in some instances, registered churches, the banning of religious educational activities, and threats to deprive children of an education if they engage in religious activities or identify as persons of faith is a serious and sustained attack by the Chinese authorities on the right to religious freedom. In this environment, the inability of the applicant to freely practise his religion together with his family is a violation of the right to religious freedom. It is this deprivation of religious freedom that is the serious harm.

    [48] NBCY v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCA 922; 83 ALD 518 and El Merhabi v Minister for Immigration and Multicultural Affairs [2000] FCA 42; (2000) 96 FCR 375 at [16] to [17] are authority for the proposition that persecution can arise from fear of harm to one’s family; see also MZZNF v Minister for Immigration & Anor [2015] FCCA 1792 (30 June 2015) at [7]-[8] and at [29].

14. The Tribunal finds that if the applicant were to travel to China with his parents there is a real chance that he would be unable to freely practise his Catholic faith in an underground church. The Tribunal finds that the applicant would (through the agency of his parents) to practise his faith in an underground church and that, in these circumstances, there is a real chance that the applicant’s parents or (less likely but possible) the applicant would be detained as a result of official raids on underground churches or the applicant’s parents would face threats and pressure to sign undertakings not to make their child attend church or the underground church itself would be closed. The Tribunal is satisfied that this deprivation of religious freedom would amount to serious harm to the applicant and systematic and discriminatory conduct: ss.5J(4)(b), (c).

15. As set out in s.5(J)(3) of the Act, a person is taken not to have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country. However, as set out in s.5(J)(3)(c)(i), these reasonable steps do not include requiring a person to alter his or her religious beliefs or conceal them or cease to be involved in them or practise them. The applicant (through the agency of his parents) has been baptised in the Catholic faith and, according to the tenets of that religion, became a Catholic at that time, has attended Catholic church in Australia on a regular basis and is undertaking his education at a Catholic school. If the applicant were (through the agency of his parents) to take steps to cease to be involved in the practise of his faith and to forgo his religious education this would be an impermissible modification of conduct.

16. As the serious harm feared is from state actors, the applicant cannot relocate to a different part of China to enable him to avoid the harm he fears.

17. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution by reason of his religion and is unable to avail himself of effective protection measures, as it is the state that is the perpetrator of harm. The Tribunal is satisfied that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he meets the meaning of ‘refugee’ set out in s.5H of the Act.

18. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

19. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    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.

    …

    
    

‘United States Commission on International Religious Freedom Annual Report 2019’, United States Commission on International Religious Freedom (USCIRF), 29 April 2019, pp.35-39, 20190508143726; '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.28-37, p.45, 69, 20190307125741.