1606761 (Refugee)

1606761 (Refugee) [2019] AATA 5843 (26 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606761
COUNTRY OF REFERENCE:                  China
MEMBER:Meena Sripathy
DATE:26 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 June 2019 at 12:43pm
CATCHWORDS
REFUGEE – protection visa – China – Religion – Christian – not satisfied applicant is genuine Catholic – motivations for attending church – lacking in convincing and authentic detail – Chinese Government forbids Catholic Church – fears being taken into custody – seeks spiritual freedom – not satisfied there is a real risk – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 April 2016 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 11 June 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant was a genuine Catholic as claimed and was not satisfied that he faced a real chance of serious harm on the basis of his religion or a real risk of significant harm upon return to China.
The issues in this review are whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, 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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
As a preliminary matter, the Tribunal notes that a Certificate under s438 of the Act was included on Departmental file [file deleted] in respect of folios 64,110. The reason given for the certification of the documents was that the folios contain information relating to an internal working document and business affairs. The Tribunal considers this is not a valid reason to invoke public interest immunity and on this basis it considers the Certificate to be invalid. In any event, the information contained in the folios (which are essentially Departmental processing checklists) are immaterial to issues arising in the matter under review and therefore the Tribunal did not specifically discuss them with the applicant.
The applicant is a [age] year old single man from Fuqing City, Fujian Province. He has parents and [a] sister who reside in his home province. He arrived in Australia [in] September 2006 on a student visa. He is the holder of a Chinese passport issued in [2006] and valid until [2011]. He indicates that he has not approached the Chinese authorities since then to renew his passport due to his fear of being reported for detention. He was a full time (school) student in China prior to coming to Australia and has no prior employment history there.
The applicant provided a Personal Statement (dated 10 June 2015) with his application in which he made the following claims for protection: His father [is employed] and has no religion and his mother is Buddhist. He came to Australia after completing his second year of study of senior high school to further his study. He commenced English study when he [arrived], however his study ceased when the college he was studying at closed down. He was afraid to tell his parents and his agent failed to make any other arrangements for him before his student visa expired. Therefore he remained in Australia with no solution to his visa problem. In 2009 he went to a Catholic Church in [Suburb 1] with a friend. He stated that he did not know many things about Catholicism but felt at home with friends. However he felt it was inappropriate for him to go to church as his father is a Community Party member and his mother is a Buddhist so he did not go back. A couple of months ago he was invited to the same church by another friend. He felt this was like his destiny and his thoughts changed. Since then he has been attending the church and he has learned that the Chinese Government forbids the Catholic Church. He does not consider the government recognised churches are orthodox Catholic churches and are political. As a devout Catholic he wishes to stay in Australia for his religion.
The applicant was interviewed by the delegate on 4 April 2016. A copy of the audio recording of this interview is included in the Department file and the Tribunal has listened to it.
Tribunal hearing
The applicant appeared before the Tribunal on 1 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent.
At the hearing the applicant confirmed his current living and work circumstances, and personal details provided in the application. He has parents and one [sister] in China, all living in Fuqing City, Fujian Province. He lived with his parents there from birth until he came to Australia in 2006. He came to Australia on his own passport, issued that same year without any problems. His purpose was to study. He said he started studying English and was intending to continue with [his] studies, but by mid 2008 the college he was at closed down. He said he tried to seek assistance from the college and his education agent but they did nothing for him. He was too afraid to contact the Department or his parents. He said he felt very helpless at the time and was unaware of what to do. He survived financially by finding odd jobs.
The Tribunal asked why he lodged the present application in 2015. He said in 2009 he was invited to attend a Catholic Church in [Suburb 1] by his then landlord. He found it contradictory to his beliefs at that time and did not go back. He was working and surviving during this time. One day he came across an old high school friend from Fujian named [Mr A]. He was also Catholic and attended church weekly. His life at that time involved going to work daily and reading or playing computer games at night. His friend observed and commented that without faith, he was like ‘rotten meat’. The applicant said his friend’s words made an impression on him. [Mr A] encouraged him to consider attending church again. He told him that he could just go for free food and company. Around 2012, the applicant attended a few times, not regularly, just for the free food and to meet people. He started to attend [Suburb 1] Church, not [Mr A’s] church, as he attended a church in [another suburb]. He did not want to attend [Mr A’s] church because he didn’t want him to know that he had gone.
As he attended more often he began to get a better understanding of the religion. Many things were going on in his life at this time, relating to his work, personal relationships and minor things in life. One day he overheard a conversation between two people in the church. They had a discussion about having ‘crossed a bridge’ and whether there were handrails or not. The applicant was very affected by the discussion and after this he began attending church regularly. This was from around early 2015. At this time he had a more stable job and was regularly available on Sundays. The applicant said that from the beginning of 2015 he has been attending [Suburb 1] Church every Sunday for mass at [time]. Before that he had a job at a [shop] and worked from 7 am to 7pm on Sundays and this is why he could not attend church regularly then.
The Tribunal explained to the applicant that a provision in the Migration Act (s.5J(6)) requires the Tribunal to disregard conduct or activities engaged in by a person in Australia unless he satisfies the Tribunal that he engaged in the conduct or activities otherwise than for the purpose of strengthening a claim to be a refugee and put to him that given the timing of his involvement in the church and the lodgement of this application, it may have concerns about his motivations for attending church. In response the applicant said he had no such motivation. He just started to attend because his job allowed him after this time and his interest developed over time.
The Tribunal asked the applicant what he does in the church. He said he drives to church at [Suburb 1] every week. He only knows the church as “[Suburb 1]” and that it is near [Suburb 1 location]. At the service they read the Bible and sing. He then described the proceeding of the ‘Eucharist’ (the Tribunal observes at this point that the interpreter had some difficulty with the terminology used by the applicant, but it became clear that he was describing the practice of taking holy communion). He stated that he has been taking holy communion since 2016, since his baptism. He was baptised just before the Department interview in 2016 but he cannot recall the exact date. He does not have the certificate because he left it with the church. The Tribunal invited him to provide it after the hearing. When asked what the significance of the baptism is, he said it means he became a real Christian and after that he is required to follow God. It signifies that Jesus was sent by his father to this world. The applicant said he attended classes for one year prior to the baptism, at 10am on Sundays at [Suburb 1] Church. The priests at the church are [Father B] and [another Father]. He was baptised by [Father B].
The Tribunal asked the applicant about the Bible. He said it is very significant in his faith and he has read it. The religion is founded by Jesus Christ, They believe in the Trinity – the Father, the Son and the ‘soul’. He referred to the 10 Commandments. Most of the readings from the Bible are taken from the New Testament. The Tribunal asked if he went to mass last week and if so from which Gospel was the reading? He said it was from John but the teaching was beyond his understanding and so he cannot recall. The Tribunal put to him that it understood the reading for last Sunday was from Luke[1] and this may cause the Tribunal to have some doubts about whether he attends Church as regularly as claimed. In response the applicant reiterated that the reading was from the Gospel of John. He named the four Gospels but said he is still learning the meaning of them.
[1] [Source deleted].
The Tribunal asked the applicant what being a Catholic means to him and how he practices his faith. He responded by explaining what Catholics believe in, such as the Trinity, that the Father created the world and everything in it, his Son came to the world and suffered and died on the cross. When asked again what he does in his practice, he said he prays everyday when he gets up and before dinner. He prays if unpleasant things happen in his day or good things. He observes the teachings of the ten Commandments. God is above everything and there is only one God who created everything.
The Tribunal asked the applicant why he chose Catholicism over other denominations of Christianity. He said it is all he knows, he was introduced to this church and that is why he followed it. He has no interest in any other religion or denomination. He only believes in ‘our God’.
The applicant confirmed that prior to attending church in Australia he had never practised Christianity or attended church in China.
The Tribunal asked what he feared upon return to China. He said because he is a real Catholic and believes in the real Catholic faith, he cannot do this in China because things are different there. Here he can speak openly about his faith and religion whereas he cannot do that there. The current President Xi won’t allow them to follow their faith. One must fit in with the boundaries of the state which is against his thinking.
The Tribunal asked what he fears will happen to him if he returns. He said he fears being taken into custody. He understands underground churches operate in hiding and when people are found out they are supressed. When asked what they find out, he said the government sets the framework for the church to follow and one is supressed if one does not follow it.
The Tribunal asked the applicant if he knows the differences between the state and underground churches. He said he only knows the underground churches do not want to be controlled by the Government.
The Tribunal put to the applicant that independent information before it indicates there are 10-12 million Catholics in China including 2 million in Fujian province and that around half practice in state churches and half in underground churches. It put to him that given these numbers it may not be satisfied there is a real chance he will suffer serious or significant harm if he practices there.
The Tribunal also put to the applicant that as it understands one of the key differences between state and underground churches is that the former does not recognise the authority of the Pope, and appoints its own bishops. However, in recent times the Vatican and government of China have reached an agreement on this. It referred the applicant to the Pope’s address to Chinese Catholics in September 2018 [2] and put to him that if the Pope, who is the highest authority of his Church is telling Chinese Catholics to be united and has granted reconciliation to the government appointed bishops, what is his objection to practising his faith in a state church. The applicant responded that he believes some compromises must be made and this is what is happening here. He understands from his experience of living in China that there is only one Party and it is opposed to difference voices. Everyone must abide by the Party’s rules. He believes the agreement made by the Pope is to liberate the underground churches but it involves compromises.
[2] >
The Tribunal asked the applicant what he would be compromising if he were to practice his faith in China. It put to him that given his faith involves attending weekly mass and praying privately at home before meals, why can’t he do this in China without risk of harm. He said he would have to abide by the rules set by the government and would be at risk of harm if they thought he went beyond the rules. He fears harm if he participates in church in China.
The Tribunal put to him that independent information indicates there is a there is a long history of Catholicism in Fujian and churches in every village and that Fujian has historically been more tolerant than other provinces of religion and practice. Also, the government permits small group family prayer and bible study. On the basis of this information, and the evidence he has given about the nature of his religious practice, the Tribunal may find that regardless of where he practices (state or underground church), there is no real chance of harm. In response the applicant said he disagrees with this information which he believes comes from the Chinese government and does not reflect the reality. He said there are no human rights or freedom in China. He gave an example of a recent mine disaster there where the Government said three people died but in fact it was dozens of people. He knows this because he has a friend who was worked in the mine, but there was no publicity about it. He does not therefore accept that millions of Catholics are able to live in harmony in China.
The applicant also said that the harm he fears is not necessarily physical harm but that his thoughts and feelings will be restricted or put in a prison which means his body will be incomplete and damaged. He seeks spiritual freedom which he cannot have in China. He wants to be able to go to heaven when he dies and keep his soul intact and purified and free.
Following the hearing on 2 March 2109, the applicant provided a copy of his Baptismal certificate evidencing that he was baptised at [Church 1] [in] March 2016.
Independent Information

DFAT’s most recent Country Report on China, December 2017[3], provides the following relevant information:
[3] DFAT Country Information Report People’s Republic Of China 21 December 2017, pp17-18
Religion
3.16 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.
3.17 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.
…
Government Framework regarding religion
3.20 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 bureaux, have significant discretion in implementing the regulations…..
3.22 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.
3.23 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.
3.24 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. …
Christians
3.37 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.
3.38 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 or practice (see Political Opinion (actual or imputed) and Protesters/petitioners).
3.39 Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or imputed)). 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
3.43 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.
3.44 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. ‘
3.45 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.
3.46 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.
DFAT’s Thematic Report on Fujian Province from December 2016[4] states:
3.5 Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.
[4] DFAT’s Thematic Report on Fujian Province 16 December 2016, pp 7-9
The 2017 Freedom House Report, The Battle for China’s Spirit [5] suggests that although China’s Catholics have been affected by some of the dynamics affecting other religious denominations in recent years, 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, referring to relations between the Vatican and the Party over recent years.
[5] Freedom House, The Battle for China's Spirit, February 2017, available at: >
In September 2018, the Chinese Communist Party and the Vatican came to an agreement on the appointment of Catholic bishops after years of negotiations.[6] 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.[7] The agreement has been criticised by those who fear it could divide Catholics in the country and cedes too much power to Beijing.[8]
[6] 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; see also Vatican News, 22 September 2018, Provisional Agreement between Holy See and China ; Harriet Sherwood, Vatican signs historic deal with China – but critics denounce sellout, The Guradian 23 September 2018
[7] ‘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
[8] ‘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
Following the agreement the Pope released a letter to the estimated 10 to 12 million Catholics in China urging them to place their trust ‘ever more firmly in the Lord of history and in the church’s discernment of his will’, that is to trust his deal with the government.[9]
[9] Pope Francis Asks Chinese Catholics to Trust His Deal With Government, >
The 2019 US Commission on International Religious Freedom,[10] refers to the Chinese government and the Vatican’s provisional agreement last year, but notes the deal was controversial among Chinese Catholics, particularly because the Chinese government cited it as justification for pressuring clergy and members of the underground church to join the CCPA (an estimated half of China’s Catholics worship in underground churches). In 2018, at least two underground bishops were replaced by government- approved bishops. In October and November, four priests from an underground church in Hebei were taken into police custody and forced to meet with CCPA bishops, who attempted to persuade them to join the state-run church. On November 9, local authorities in Zhejiang Province detained Bishop Peter Shao Zhumin without charge; he was released 14 days later, along with Father Lu Danhua of Lishui, who was arrested in December 2017. In addition, there were widespread reports of Chinese authorities closing underground Catholic churches, destroying crosses, confiscating Bibles and other religious materials, and otherwise restricting or interfering in religious activities.[11]
[10] p38
[11] Ibid. pp38-39
FINDINGS AND REASONS
Nationality
On the basis of his Chinese passport the Tribunal accepts the applicant is a national of China and considers China is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. 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. (See MIMA v Rajalingam (1993) FCR 220) However it 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. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
In the present case, the applicant fears harm in China on the basis of his claimed Catholic religious faith and commitment to practice his religion in a pure and unrestricted manner.
Claims regarding Christian activities in Australia and Christian faith
The applicant claims he has been attending a Catholic church in [Suburb 1] weekly since the beginning of 2015. Prior to this he attended once in 2009 and intermittently from 2012. He claims he was baptised in 2016. He was never involved with, or practiced, Catholicism or any other denomination of Christianity in China prior to coming to Australia.
Following the hearing he provided a copy of his Baptismal certificate, evidencing his baptism at [Church 1] [in] March 2016.
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
For the following reasons, the applicant has not satisfied the Tribunal that his conduct in attending the Catholic Church in Australia was otherwise than for the purpose of strengthening his claim to be a refugee.
Having had no prior interest in religion, and no family affiliation with Christianity or Catholicism, the applicant appears to have acquired an interest and commitment to the faith just a few months before lodging a protection visa application on this basis. The applicant told the Tribunal he started attending church regularly in the beginning of 2015, because his employment became more stable then and he was no longer working on Sundays. He said he was affected by a conversation he overheard between some parishioners about ‘crossing a bridge’ and this prompted his interest in the faith. The Tribunal did not find these explanations sufficient or convincing to explain his sudden interest in the religion. On the other hand, it notes that he had been living without a valid visa since 2009 and soon after his claimed interest in Catholicism he lodged this application on the basis of fear of persecution for reasons of religion. The Tribunal was also not convinced that the applicant’s evidence of his knowledge of the religion was genuine or authentic rather than learned in the four years that has passed since he lodged this application. His incorrect response at the hearing regarding the reading from the previous week’s service, added to the Tribunal’s concerns about whether he was giving genuine and truthful evidence about his commitment and practice. The Tribunal found the applicant’s responses and evidence about why he began attending the church at [Suburb 1] and embraced the Catholic religion was vague, general and lacking in convincing and authentic detail. He provided no other evidence to support his claims, such as letters or statements from pastors or parishioners. The Tribunal also finds telling his decision not to tell his friend [Mr A] who had previously encouraged him to go to church that he had begun to attend regularly, and his decision to go to a different church.
For these reasons, the applicant has not satisfied the Tribunal that he attended Catholic Church in Australia otherwise than for the purpose of strengthening the claim to be a refugee, and therefore it is required by s5J(6) to disregard this conduct.
Risk of harm upon return – refugee claims
Having disregarded his conduct attending church in Australia the Tribunal is not satisfied that he will attend a Catholic or any church in China upon return, whether registered or not, given he has no past history or association with religion or services in China. Even if he were to attend a church upon return to China, given the manner of his engagement with religion in Australia and no previous history of church attendance in China, the Tribunal is not satisfied his church attendance, whether in a registered or an unregistered church, would attract adverse attention of the authorities. It finds, on the basis of his evidence, at most, his religious practice here has been to attend weekly mass, engage in private prayer and commitment to uphold the moral values of the Catholic faith, which he would be able to do at a registered church in China without risk of harm.

Other than his claimed fear of return due to his Catholic faith, the applicant made no other claims to fear harm upon return to China. He has not claimed to have been harmed in the past for any reason.
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).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has found that the applicant has no past history of church attendance, nor has he experienced past harm in China for any reason. The applicant claims he started to attend regularly at [Church 1] in Australia in 2015 and was baptised in March 2016.
As there is no equivalent provision to s5J(6) for the purposes of assessment of his claims under the complementary protection provisions, the Tribunal is not required to disregard this conduct and therefore it has considered his conduct here for the purposes of assessing his complementary protection claims.
The Tribunal accepts that the applicant attended [Church 1] and was baptised there in 2016, as evidenced by the Baptism certificate. However, as mentioned above, it has doubts about the genuineness of his claimed faith and commitment to the Catholic religion. For the same reasons referred to above to explain why the applicant had not satisfied the Tribunal that his attendance at church was otherwise than for the purpose of strengthening a refugee claim, the Tribunal is not satisfied that the applicant’s church attendance in Australia demonstrates a genuine commitment to the Catholic faith. It is not convinced that he attends church services regularly as claimed, or that he is a committed and genuine Roman Catholic. Therefore, it does not accept that he will seek to practice religion as a Roman Catholic in an unregistered church upon return.
Even if the applicant were to seek to practice his Catholic faith upon return to China, the Tribunal finds that he can do so without risk of harm in a registered or unregistered church. It considers if he were to practice religion there, he would likely do so in a manner similar to what he has claimed to do here, being attending weekly mass, private prayer and commitment to uphold the moral values of the Catholic faith.
Having regard to independent country information as referred to above, the latest DFAT Country Report on China provides information that China’s Christian population is significant and growing. It includes an estimated 12 million Catholics, over half of whom belong to unregistered churches, and over 50,000 new Catholics are baptised in state churches every year. The Tribunal acknowledges that since 2017 President Xi Jinping has emphasised the need to ‘sinicize’ religion to ensure it does not impinge on CCP authority, and in this context there has been a tightening of religious policy. However, it is clear from the available country information that the interest of the government and through it, the authorities, in controlling or monitoring religious activities is to protect the authority of the CCP and prevent undue foreign interference. In this context underground Catholic churches who pledge loyalty to the Pope over the Party, are encouraged or pressured to join state registered churches.
The recent negotiations and agreement between the Vatican and the Chinese Government suggests that to some extent this has been with the acquiescence of the Vatican. The Pope in his message to the Catholics of China issued on 26 September 2018 called on the Catholic community in China to be united and to overcome the divisions of the past.[12] While the Tribunal acknowledges that there has been criticism and concern about the ‘deal’ made between the Vatican and the Chinese Government, and its implications for unregistered Catholics in China,[13] in the context of the applicant’s particular profile, (at best) as an ordinary church goer, the Tribunal is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to China and practices his religion in this manner.
[12] Message Of His Holiness Pope Francis To The Catholics Of China And To The Universal Church Elise Harris, Pope’s shout-out to Chinese Catholics comes as pressure over deal mounts, 23 May 2019, CRUX, >
The Tribunal has considered the applicant’s claim that he will not have spiritual freedom in China, and just wants to be able to go to heaven and keep his soul intact and purified and free, however it is not satisfied that his fear of not having spiritual freedom or not going to heaven, of itself, comes within any of the categories of significant harm as defined in s36(2A) and s5 of the Act.
Having found that there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm upon return to China, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2019] AATA 5843

26 June 2019

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