1605644 (Refugee)

1605644 (Refugee) [2018] AATA 5724 (20 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605644
COUNTRY OF REFERENCE:                  China
MEMBER:Tania Flood
DATE:20 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 December 2018 at 2:13pm
CATCHWORDS
REFUGEE – Protection visa – China – religion – Catholic – inconsistent evidence – delay and timing of the applicant’s protection visa application –credibility concerns – decision under review affirmed

PRACTICE AND PROCEDURE –s438 certificate not valid
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499,
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 8 May 2015. The delegate refused to grant the visa on 30 March 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – 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.
Material under a public interest non-disclosure certificate
The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as the material relates solely to ‘internal working documents and business affairs’ No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material relates to the identification of the applicant which is not in dispute. The Tribunal has concluded that the material is of no relevance at all to the review and no further consideration has been given to the information.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to China now or in the reasonably foreseeable future for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to China there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
The applicant claims to have been born into a devout Catholic family in Hebei Province, China.
He claims he was repeatedly detained and persecuted for participating in underground Catholic church activities.
He claims he was baptised in China and read the bible every morning and night with his parents. He went to Sunday church and at times attended mass at the Bishops place.
He claims that in China the underground church is not accepted; underground Catholics are considered illegal religious activists; the government suppresses religious people and prohibits dissemination of the gospel. Clergy are imprisoned and worship sites are closed down.
He claims that in July 2012 Priest [A] set up catechism classes for children in his village and the classes were held at his family home. More than 20 children attended the class.
[In] July 2012 four to five people broke into his yard and accused him of participating in an illegal underground church. He was arrested and detained at the police station. He was held overnight and questioned until the following morning. He was forced to confess, abused, reproved and assaulted and accused of violating state law. He was released when his father paid a fine and he received a warning.
In 2014 he was questioned in relation to a priest he picked up from the underground church. He was questioned, harassed and then released.
In the past his father was jailed when he protected the Priest from being harmed. His sister also participated in the underground church and was detained twice. She
was granted protection in [Country 1].
In Australia he feels safer to talk to the Lord and attend church on Sunday. He will make an effort to serve the Australian community by actively participating in the church and preaching the gospel.
If he returns to China he will face persecution and will be punished for his past activities and for his future practice of his religious beliefs.
The applicant attended a Protection Visa interview on 9 March 2016. During that interview he indicated that the information contained in his Student Visa application was not truthful and made up by the agent who assisted him. The agent suggested that once his visa was approved she would travel to Australia as his wife.
Following the interview with the delegate the applicant produced a letter of certification from Father [A] [certifying] that he was baptised and has received the sacraments of confession, penance and the Eucharist.
Independent country information
DFAT’s Country Information Report: People’s Republic of China, dated 21 December 2017 states;
China is a religiously diverse country with a rich and complex society of faiths, belief
systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the
‘three teachings’, a philosophical framework which historically has had a significant role in
shaping Chinese culture, including traditional folk religions. Christianity has been present in
China since the seventh century but increased when Catholics became active in the late
thirteenth century and through Protestant Christian missionaries in the nineteenth century.
The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total,
including over 23 million Protestants, six million Catholics, and over 22 million Muslims.
Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic
institutions and as many as 140,000 registered places of religious activity are officially
recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising,
particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.
Several hundred million people observe to some degree aspects of Buddhism,
Daoism and ‘folk religion’. Despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief,
and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.
The conditions governing the establishment of religious bodies and religious sites, the
publication of religious material, and the conduct of religious education and personnel are
outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the
national level, the CCP’s United Front Work Department, State Administration for Religious
Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs
bureau, have significant discretion in implementing the regulations.
Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and
Protestantism), members of which must register with the government’s Patriotic Associations
mentioned above. These organisations are overseen by SARA and must be independent of
foreign associations (notably the Vatican). Protestants must be non-denominational.
Registered religious organisations may own property, publish literature, train and approve
clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.
Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in
private settings but not in public. Foreigners may not proselytise. Registered religious
organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.
In April 2017, President Xi Jinping called on CCP officials working in religious
administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.
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. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
Catholics
The CCPA has managed Catholic affairs in China, including the appointment of
bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint
bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to publicly pledge support for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.
In 2016 the Vatican and CCPA agreed on the ordination of two bishops, but there is
still no agreement on the treatment of bishops ordained by each respectively but not
recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly
supporting the CCPA.
In the past, local authorities required priests to submit sermons and prayers in
advance for approval and to regularly provide names and addresses of congregation members. DFAT understands this is no longer required in areas where the Catholic Church has built trust with local officials over time. Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.
The DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China, dated 3 March 2015, presents the following information about unauthorised Catholic churches in China:
Unregistered Catholic Organisations
Catholics who refuse to acknowledge the authority of the CPA have been described as
“underground” or “unofficial” Catholics. There are approximately 40 Catholic bishops that
remain independent of the CPA and operate unofficially.
Reports issued by the United States Commission on International Religious Freedom
indicate that dozens of Catholic clergy, including three bishops, remain in detention, in home
confinement, or disappeared in 2013. Overseas travel by prominent church members or
leaders are largely viewed by authorities as out of bounds, owing to long-held fears about foreign funding or influence on communities in China. According to media reports, around half of 100 students who had planned to travel from China to South Korea to attend the Asian Youth Day event in August 2014 were prevented from attending.
As with members of Protestant churches in China, Catholics in China can experience
officially-sanctioned harassment and discrimination when their activities are viewed by
authorities to be politically sensitive. Incidence of societal discrimination and violence against Catholics in China is generally low.
Different Treatment for Leaders and Worshippers
Leaders of registered churches tend to face more interference from authorities than
ordinary worshippers. For example, senior church members can be required to seek approval from government authorities before travelling overseas whereas ordinary churchgoers may not. Leaders involved in activities seen to be “politically sensitive” by authorities (such as protests against land demolitions or human rights advocacy) are especially at risk of attracting adverse attention– but again, this is likely not just because they are leaders of a church but also because of their participation in other activities viewed as sensitive or “illegal” by the authorities.

According to the US State Department, China 2017 International Religious Freedom Report, the Political Prisoner Database maintained by human rights NGO Dui Hua Foundation contained the following number of religious prisoners at year’s end: 308 Protestants, 277 Almighty God Church members, 107 Muslims, 30 Buddhists, and 9 Catholics, compared with 207 Protestants, 366 Almighty God Church members, 66 Muslims, 21 Buddhists, and 23 Catholics at the end of 2016.
An article by B. Fulton, ‘New Religion Regulations to Take Effect in February’, China Source website, 13 September 2017,states:
The long-awaited revision of the draft religion regulations circulated last September was signed into law last month and will take effect February 1, 2018. Last autumn’s draft evoked a groundswell of concern among Christians in China, many of whom had hoped the government would provide a path toward legal status for China’s unregistered churches. The final version retains the harsh language targeting unregistered religious activities, unofficial religious schools, unauthorized religious instruction, and religious believers going abroad for training, conferences, or other activities. In keeping with the times, the regulations require that religious information services on the Internet be registered with the religious affairs department at the provincial level or above.
An English translation of the regulations is available on the China Law Translate web site. The new religion regulations are sweeping in scope and, if fully enforced, could mean major changes for China’s unregistered church, not only in its worship and meeting practices, but also engagement in areas such as Christian education, media, and interaction with the global church. Yet the nature of these activities and, indeed, of much religious practice throughout China, makes enforcement extremely problematic.
As Gareth Fisher pointed out in his 2014 study of lay Buddhist practices taking place in the
courtyard of a prominent temple in Beijing, much of China’s religious life occurs on “islands of religiosity” within the contested grey area between official and unofficial practices. How to define what constitutes “religious activity,” “religious sites,” or “religious content” depends ultimately on the subjective definition of officials charged with enforcing the regulations.
Whether officials at the local level will want to enforce the regulations is another question
altogether. In recent years the most common way for local police to keep tabs on leaders of
unregistered Christian groups has been by meeting regularly to “drink tea,” an arrangement
that has served both parties well. Recently an unregistered church pastor told of a conversation in which a local policeman criticized the new regulations, complaining they would disrupt the cordial relationship they had, up until now, enjoyed. Regulating China’s religious life using the myriad provisions contained in the new regulations
seems a bit like trying to nail the proverbial Jello to the wall. Having more nails in the toolkit does not make the task any easier.
A survey of the Congressional-Executive Commission on China Political Prisoner Database’s China: List of Political Prisoners Detained or Imprisoned as of October 1, 2015 (1,327 cases), published on 11 October 2016, discloses that instances of individuals becoming political and religious prisoners in Hebei have been arguably few, and relate in the main to the ban on Falun Gong practitioners, “leakers of state secrets” and protests over land expropriation. This report, which does not claim to be a complete record of such detentions, still cites very few arrests of Catholics between 2004 and 2015: six individuals, all clerics (one of whom a state authorised priest who was attempting to dedicate a new state-registered church), arrested and detained for various lengths of time by authorities for such “offences” as organising unauthorised processions and meetings. It is evidently the authorities’ treatment of Falun Gong practitioners that has earned Hebei a “moderate” rating, second to “low”, below “high” and “very high”, in Freedom House’s 2017 survey of “Religious Persecution by Province” in China. (The Battle for China’s Spirit Religious Revival, Repression, and Resistance under Xi Jinping,” Freedom House, February 2017).
Freedom House, A Freedom House Special Report, The Battle for China’s Spirit, Religious Revival, Repression, and Resistance under Xi Jinping, February 2017 states:
As China experiences a spiritual revival across a wide range of faiths, the Chinese government’s religious controls have taken different forms for different localities, ethnicities, and denominations. In many parts of China, ordinary believers do not necessarily feel constrained in their ability to practice their faith, and state authorities even offer active support for certain activities. At the other extreme, Chinese officials have banned holiday celebrations, desecrated places of worship, and employed lethal violence. Security forces across the country detain, torture, or kill believers from various faiths on a daily basis. How a group or individual is treated depends in large part on the level of perceived threat or benefit to party interests, as well as the discretion of local officials.
Under Xi, new legal mechanisms have codified previously informal restrictions. Crackdowns on unregistered and even state-sanctioned places of worship and religious leaders have increased, with several clerics receiving long prison terms. Yet there have also been a number of positive developments in unexpected quarters. Sino-Vatican relations have warmed, raising the possibility of an agreement on the appointment of Catholic bishops. Such a pact would remove a major source of division in the Chinese church.
Xi has also presided over the general closure of civic space in China, and religious groups have not escaped the increased repression. Indeed, one of the main findings of this study is that religious persecution has increased overall, with four communities in particular experiencing a downturn in conditions— Protestant Christians, Tibetan Buddhists, and both Hui and Uighur Muslims.
Although some Catholic churches have been subjected to forced cross removals, relations between Beijing and the Vatican have warmed since March 2013. The two sides appear to be on the verge of a breakthrough agreement governing the appointment of bishops in China at a time when more than 40 vacancies have opened. Nevertheless, some prominent figures in the church remain sceptical about how much any deal would reduce repression of underground Catholics.
Many religious controls in China are imposed nationwide, and instances of persecution have been recorded in every one of China’s 31 provinces, autonomous regions, and province-level municipalities since November 2012. Still, the degree of persecution and the primary groups targeted vary from region to region. In Fujian Province the degree of persecution is reportedly low.
Although China’s Catholics have been affected by some of the dynamics described above, particularly the cross removals in Zhejiang, the overall trajectory of the government’s policies toward Catholicism is distinct from the situation for Protestantism and appears to have serious potential for positive change. After a notable deterioration in Sino-Vatican relations from 2010 to 2012, by mid-2016 there was a sense of optimism surrounding the relationship and hope for some kind of breakthrough, especially regarding the appointment of bishops.
With only 12 million followers spread throughout the country, Catholicism is perhaps the least politically threatening organized religious group in China in terms of size and geographic distribution, despite its ties to a foreign spiritual authority.
Is Persecution Worsening? Perspectives on the Changing Religious Policy Environment in China by two senior house church leaders, March 20, 2017 (Taken from published materials of Open Doors. Used with permission)
Views of Pastor A
Are Chinese Christians entering a harsh winter season?
In recent years, much overseas media has covered stories of persecution incidents in China. The demolition of crosses has been reported extensively over the past two years. Some have even said the church in China is entering a harsh winter season. This gives an imbalanced impression that persecution is a common phenomenon in China. When we analyse the environment facing the Chinese church, we must not lose sight of the particular context of individual persecution incidents. Otherwise, we will misread the signs and miss the opportunities that the Father has been giving to the church in China of this generation.
Overall, the fact is that some persecution incidents have occurred in recent years and still do today. At the same time, the majority of churches continue their meetings and ministries with unprecedented freedom. Let me give an analogy. The government at times arrests people who are suspected of committing financial crimes, but that does not mean the government intends to forbid all activities of the financial market. Similarly, persecution incidents happening in China do not imply a harsh winter for the church—a nationwide crackdown on Christianity.
New measures on managing unregistered churches
I am also aware of the spread of an internet message about four ways of managing unregistered churches:
1. Churches that are willing to join the TSPM system and be managed by the authorities can be granted registration.
2. Churches that decline to join the TSPM system but are willing to be managed by the authorities can have an informal registration with the authorities for reference.
3. Churches that neither join the TSPM system nor are managed by the authorities should continue to be educated by the authorities.
4. Churches that neither join the TSPM system nor are managed by the authorities and continue to be infiltrated by foreign forces should experience crackdowns.
These four measures are consistent with the pattern of current religious restrictions, and I personally believe they are not merely rumours. It is common knowledge that the government conveys messages about new policies through informal channels to test the waters, in particular when those new policies are controversial and might arouse public opposition. In this way, the government may ascertain how the local churches and local authorities will respond to the new religious policies. They can then determine to what extent the new policies will be implemented.
I personally find this new policy is not necessarily a sign of harsh winter. On the contrary, it creates even more space for church ministries. One might find the crackdown mentioned in measure #4 as very negative for the church. This is indeed the measure taken by the authorities over decades, so the church is no worse off now. However, in this generation, the overwhelming majority of churches in China are indigenous ones and are not funded by overseas entities. Overseas funding is usually taken as a sign of control and unacceptable by the government.
Measure#3 is the current situation of most unregistered churches. The authorities attempt to educate and manage unregistered churches by having “tea meetings” with pastors. Again, this situation is no worse off than previously. As the authorities continue to dialogue with the churches, the churches can, on the contrary, grasp the opportunities to educate them about how the churches can benefit society.
Measure #2 is a new measure that provides the opportunity for church registration which has been called for by unregistered churches for years.
Measure #1 is not a preferred choice for unregistered churches.
Personal experience of restrictions
I, personally, feel I have less control over my church and myself because of the relationship with the authorities in recent years. My church continues services in a commercial building without any interruptions. The authorities occasionally have “tea meetings” with me to receive an update on what is happening in my church. However, these meetings are becoming less frequent now—just two or three times a year. As part of the top leadership of my network, I, of course, do not naively believe I am free to do any kind of ministry. I expect tighter surveillance by the authorities than an ordinary Chinese pastor would receive. While hundreds of thousands of church leaders can freely communicate with local and overseas parties online, I often expect irregularities with my online service or electronic devices. While most pastors are free to travel to overseas countries for church events, I pray that the organizers of overseas events will not take too high a profile and cause the authorities to hinder my travel.
Pastor A is in the top leadership of a prominent church network in a rural area in China. He was imprisoned in a labor camp for a few years during the 1980s because he continued to evangelize under the tight religious control of the government. With the increase in urbanization, he migrated from his home village to a city and started an urban church in the 2000s. Now, for years, he has been shepherding a local church of hundreds of believers with a large proportion of well-educated young people. Like a good number of other urban churches, every week they conduct several church meetings in a rented apartment in a commercial building as well as tens of small group gatherings.
Views of Pastor B
Harsh winter is the right time to prepare ourselves
Historically, Christianity has been associated with Western imperialism. It is hard for the Chinese government to forget the painful invasion of western countries since World War I, in which western missionaries were seen as collaborating with foreign powers. The pouring of funds from overseas into the churches in China in past decades caught the attention of the Chinese government. Deeply rooted in Chinese culture, the provision of funds creates a master-and-servant relationship. Thus, the image of Christianity is closely related to infiltration by foreign forces.
Religious issues are seen as sensitive under the sovereignty of the atheistic Chinese Communist Party. The advance of Christianity in China has drawn the attention of the Chinese government, and some government officials perceive Christianity as a destabilizing factor. In addition, the Occupy Central Hong Kong incident in the second half of 2014, with Christians playing a pivotal role in its organization and actively supporting it, was seen as threatening from the perspective of the Chinese Communist Party. This has been taken as an apparent clue that Christianity could initiate and participate in social movements. That gets on the nerves of the state leadership.
Pine trees harden during a harsh winter
In Chinese culture, pine trees are often depicted as symbols of steadfastness and endurance while plum blossoms portray a strong personality that does not fear difficulties. When winter becomes harsher, pine trees harden even more and plum blossoms take time to flourish. We firmly believe that regardless of changing circumstances, the One who reigns over all, including our history, shall never change. Everything is in his good hand.
Therefore, we should examine the situation and prepare for the worst. On the other hand, we should hold on to our hope that victory is a sure thing and walk faithfully with the Lord. As we revisit church history, God’s kingdom can be further expanded when his children grasp the opportunities to share the gospel during difficult times. Throughout the generations of the early church, the scattering or migration of believers helped to spread the gospel.
Today, some worry the churches in China are not aware of potential severe persecution as they seem to take an optimistic perspective towards the signs of a tightening environment. It can hardly be imagined how they would endure, or even survive, in a tightened environment. Yet from the history of the Chinese church, we can see that harsh winters realign the churches, test their foundation of faith, and enable believers to show their faithfulness to the Lord. Because the price for keeping the faith has been raised by the authorities, the churches in China will naturally purify themselves. True gold fears no fire. Difficult times can nurture disciples that are willing to carry their own crosses. Pastors will also have to serve with pure motives, be ready to be motivated by God’s love, and to shepherd the Lords sheep faithfully.
If the situation gets worse, local churches will be compelled to break up into smaller sizes. The scattering of believers will help to spread the gospel, as in the early church. As the government prepares to put a strong hand on donations, churches may face financial hardship. However, local churches will then be unable to “lay up treasures” in their bank accounts. After all, there will be no need for them to save money for establishing glamorous church buildings. As soon as donations are received, they will have to be given away—to the poor, to seminaries, and to charitable groups. This could speed up the development of church ministries in a wonderful way. The delegation of religious control to the authorities at the community level would, on the one hand, narrow the space for unregistered churches. On the other hand, for survival, local churches would be motivated to gain favour from the local authorities by doing good deeds in the community. It is time for more local churches to move out of their comfort zones to reach and serve the community, help the needy, and care for the neighbourhood—to truly become salt and light.
Chinese churches have gone through over 200 years of ups and downs. We may see the past as a nurturing stage when believers were pampered, trained and disciplined. Now that they are mature, it is time to put their strength to the test. Learning from the historical patterns of the church, we see that passionate evangelization comes from a burning spirit; a burning life comes after the test of fire. All in all, the harsh winter is a period of trials but also a season of hope. Farmers will have the time to relax, reflect and prepare for the busy harvest in the coming spring. When the winter trial is over, I believe God will enormously revive the churches in China and charge them with the Great Commission.
Churches in China have been abundantly equipped in the past decades; the restrictive environment is a mere, but crucial, push for them to reach their destiny in God’s kingdom.
Pastor B is an indigenous Chinese scholar with strengths in theological education and the history of the Chinese Church. He shepherds an unregistered urban church of mainly well-educated, middle-class people.
FINDINGS AND REASONS
Country of reference
When the applicant appeared before the Tribunal he produced his People’s Republic of China passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of China and has assessed his claims against China.
Given the reportedly large number of Catholics in Hebei Province and based on the applicant’s oral evidence and supporting documentation, the Tribunal accepts that the applicant and his family are Catholics. The Tribunal also accepts, on his oral evidence, that the applicant has been attending Catholic church services since soon after his arrival in Australia. However, the Tribunal has concerns about the veracity of the applicant’s evidence in respect of the claimed past harm in China.
Firstly, when speaking about the experiences of his family members in China the applicant stated that when he was young his father was once questioned in relation to him driving one of the priests around to different church services. Under further questioning he said that nothing further happened to his father apart from him being questioned. As to his sister, he said that she offered the use of several rooms in her house for Catholic study group and she was arrested because of that in 2013 and beaten while in detention. Thereafter he said that she became very afraid and so obtained a visa to [Country 1]. Under further questioning he said that this is all that happened to her. The applicant also informed the Tribunal that his mother, another older sister and older brother remain living in their area and while they attend church services they have suffered no harm at the hands of the authorities or anybody else.

During the hearing the Tribunal put it to the applicant that his oral evidence is inconsistent with claims made in his written statement. Specifically the Tribunal noted that his written claims indicate that his father was in fact jailed for protecting a priest from being harmed and his sister was detained not once but twice in connection with her underground church activities before seeking protection in [Country 1]. In response the applicant stated that it is possible he doesn’t remember the details correctly and that he was young at the time his father encountered problems with the authorities. Later in the hearing he added that his ability to express himself clearly may have contributed to inconsistencies in his evidence.
At the outset of the hearing the applicant informed the Tribunal that he prepared the materials for his application for a Protection Visa himself and that a friend helped him put it all together. He informed the Tribunal that he was aware of the contents of his written statement and said there was no need for any corrections. While the applicant might have been young when his father encountered problems he nevertheless had sufficient knowledge of the events when he made his written statement of claims. The Tribunal acknowledges the applicant is a young man and that the hearing procedures might have been somewhat foreign to him but is not satisfied that these reasons account for the inconsistencies in his evidence in respect of two rather straightforward issues, namely whether his father was jailed or merely questioned and whether his sister was detained once or twice.
Secondly, the Tribunal finds the events surrounding the applicant’s claimed arrest in 2012 difficult to accept in the circumstances. For instance, the Tribunal asked the applicant at hearing why it was necessary for the study groups to be convened at his home when his evidence is that there is a very large Cathedral in his area. The applicant responded that there are usually police and other people watching the premises in order to prevent people coming into contact with the priests in the church. The Tribunal put it to him that this seems implausible as his evidence is that hundreds of people attend church services in the Cathedral. He then said that the mass doesn’t count but after mass all contact is not allowed. In the Tribunal’s view, and as discussed with the applicant, if the authorities were so intent on preventing contact between parishioners and priests they would surely prevent the church services from being held altogether rather than interfering with activities outside of the mass. The Tribunal did not find the applicant’s explanation as to why the study groups were held at his family home to be convincing.
The applicant’s evidence is also that members of the study group were not physically present when the police burst into his yard and that he was home alone and therefore the person taken into detention for organising the activity. While his evidence as to what transpired in detention is relatively consistent the Tribunal finds it highly improbable in the circumstances that the applicant’s parents were not implicated in the activity or at the very least questioned in connection with it. When this was discussed with him at hearing the applicant repeated that he was home alone and the police did not wait for his family to return before taking him away. The Tribunal notes that the applicant would have been [age] years of age at the time and that his father was required to attend the police station and pay a fine for his release. That the police showed no interest in his father, who is the owner of the premises on which the claimed illegal activity took place, and given the applicant’s young age, is of concern to the Tribunal particularly as the applicant claims his father was already known to police for his past involvement with the clergy.
Thirdly, the applicant claims that he was located by the police again in 2014 in connection with driving a priest between house church gatherings in different areas. He said the police accused him of organising illegal gatherings and threatened to arrest and harm him if he didn’t inform on the priest. Under further questioning he said he told the police that he was the person who organised the illegal gatherings but they still let him go with a warning. If the applicant’s evidence regarding his family history and his own arrest in 2012 is to be believed, the Tribunal finds it improbable he would have been set free with a warning after admitting to being the organiser of an illegal religious gathering. In forming this view the Tribunal notes country information outlined above which indicates that religious leaders or activists engaged in politically sensitive activities are more vulnerable to adverse treatment by the authorities.
Fourthly, the Delegates decision which is before the Tribunal for the purpose of this review indicates that the applicant made an application for a Protection Visa approximately five months after arriving to Australia. When asked why he departed China in the first place he said it was because he was afraid of being arrested by the authorities on account of his religious activity. He said it was only after a friend told him about the possibility of applying for a Protection Visa that he approached the Department with this request. The Tribunal put it to the applicant that the Delegates decision indicates that he admitted he engaged the services of an unscrupulous travel agent who provided false information in respect of his student visa application. The Tribunal noted that this agent was very likely aware of the availability of processes for seeking protection in Australia. The applicant maintained that he only discovered he could make an application for protection after he stopped studying. The Tribunal has considered the applicant’s responses and given consideration to his relatively young age on arrival to Australia but is not satisfied in the circumstances that the five month delay in lodging a Protection Visa application is due to his lack of knowledge of availability of such a pathway. Given his stated reasons for departing China the Tribunal considers the delay in applying for the Protection Visa also calls into question the veracity of his claimed past harm in China.
For these reasons, the Tribunal has concluded that the applicant’s claims of past harm have been fabricated in a bid to strengthen his claims for protection. The Tribunal is not persuaded on the available evidence that study group meetings were held in the applicant’s home or that he was arrested, detained, beaten, forced to make a confession or accused of violating state law in 2012 or that he was questioned and warned again in 2014 for allegedly organising illegal church gatherings or transporting a priest. Further, the Tribunal is not prepared to accept that his father and sister also attracted adverse attention from the authorities or were ever detained and beaten in connection with their religious beliefs.
As noted above, the Tribunal accepts the applicant and his family members in China are practicing Catholics. When questioned about their religious activity in China the applicant said that his family are currently attending church services in the Cathedral near to his home. He said it is a large Cathedral with capacity for seven or eight hundred people. Under further questioning he initially could not say whether the Cathedral is a registered or unregistered church but he said that in the past he thinks it was not. He added that he knows the church they attend is being watched and that it displays the national flag. He said when he was in China he attended the same Cathedral on important dates and also attended church services in different homes. The applicant confirmed to the Tribunal that his family have not encountered problems for attending church in the Cathedral. He did not indicate that they were engaged in any other religious activities. Later in the hearing he said that his family are attending the patriotic church but in their heart they don’t recognise this church. He referred again to the fact that the church has been required to display the national flag and when asked how this interferes with their ability to observe their faith he said the priests are a bit different to the ones in underground churches. As to the applicant’s observance of his faith in Australia he said he attends church roughly every two weeks but doesn’t take part in other church activities.
On the available evidence the Tribunal finds that the applicant’s family are attending regular Catholic church services in China without harm from the authorities. The Tribunal accepts the likelihood that if the applicant returns to China he will also continue attending Catholic church services and in doing so he may move between attending church services in the Cathedral, which in all likelihood may be a registered church and smaller unregistered house church gatherings. Despite his written claims stating that he intended to serve the Australian community by actively participating in the church and preaching the gospel his evidence does not support that he is anything more than an ordinary parishioner who observes his faith by attending church on Sunday. When discussing the likelihood of him encountering difficulties with the authorities on return to China on account of his religion he agreed that he could attend church services but was at risk of harm due to having been involved in organising study group meetings. As noted the Tribunal does not accept the latter occurred and concludes that if the applicant returns to China he will continue to attend church along the lines of an ordinary parishioner, albeit at times in unregistered house church gatherings. The Tribunal is not persuaded he will engage in organising study groups or any other religious activities which might make him more vulnerable to harassment or harm from the authorities.
The Tribunal has had regard to the country information outlined above which was discussed in general terms with the applicant during the hearing. The Tribunal accepts that under Xi Jinping the regulations governing religious activity in China have been tightened. However, in the Tribunal’s view the country information nevertheless supports that Catholics remain able to practice their faith without fear of persecution. Indeed, the Tribunal finds it significant that recent reporting indicates that relations between the Catholic Church and the Chinese government appear to be warming despite the tightening of religious regulations. Freedom House’s report concurs that religious controls have taken different forms in different localities and for different denominations. The report notes that ordinary believers do not necessarily feel constrained in their ability to practice their faith despite the current environment. In the Tribunal’s view, the opinions of the two pastors cited above, reflect a similar opinion. For example, Pastor A states “Overall, the fact is that some persecution incidents have occurred in recent years and still do today. At the same time, the majority of churches continue their meetings and ministries with unprecedented freedom”.
In response to the observations made by the Tribunal in respect of the available country information the applicant responded that this information is a bit different to that which he receives from his family in China. He added that the government forcibly removes crosses in many areas of China.
The Tribunal accepts that there are reports of unauthorised church demolitions and cross dismantling in various locations in China. However, the fact remains that there are significant numbers of practicing Catholics attending both registered and unregistered churches in Hebei Province. Based on his oral evidence the applicant generally observes his faith by attending weekly or bi-weekly church services. His past practice in China suggests he would do the same albeit at times in an unregistered church. While it is acknowledged that those who practice their faith in unregistered institutions are more vulnerable to adverse attention the above information nevertheless indicates that it is priests, clergy members and persons engaged in public expressions of faith or activities which could be regarded as being politically sensitive who are more vulnerable to adverse treatment than ordinary parishioners. The Tribunal is satisfied the applicant is not a person with such a religious profile.
For the above reasons, the Tribunal considers the chance of the applicant, with his particular religious profile, being arrested, detained, harassed or harmed in connection with his religion if he returns to China now or in the reasonably foreseeable future to be remote. The Tribunal is satisfied that there is not a real chance he will suffer serious harm on account of his Catholic religion. Therefore the Tribunal finds he does not have a well-founded fear of persecution for this reason. The applicant does not claim to fear returning to China for any other reason.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will suffer significant harm. Therefore the Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2018] AATA 5724

20 December 2018

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