1610024 (Refugee)

[2019] AATA 5629

1610024 (Refugee) [2019] AATA 5629 (6 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610024

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:6 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 May 2019 at 2:01pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Yiguan Dao – unregistered child – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 437, 438, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who is a citizen of China, applied for the visa on 5 November 2014. The delegate refused to grant the visa on 9 June 2016.

3. The applicant was born on [Date 1] in Australia. Before her birth her parents and [sibling] applied for protection visas but their applications were refused by the Department and that decision was affirmed by the Refugee Review Tribunal (RRT) in October 2014.

4. As she is too young to give evidence, the applicant’s mother, Ms [A] appeared before the Tribunal on 13 March 2019 to give evidence and present arguments on her behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

   CLAIMS AND EVIDENCE

6. There is a s.438 certificate on the Department’s file certifying that folios 44, 64 and 89 should not be disclosed because it would be contrary to the public interest as the folios contain “information relating to an internal working document and business affairs”. Folio 44 concerns information about the visa application, the information provided and the associated Bridging visa. It does not contain any adverse information. Folio 64, entitled File Attachment, gives the name of the delegate. The Tribunal is of the view that, if the Department considers it necessary, this name could easily be redacted. It does not contain any adverse information. Folio 89 is a template entitled Disclosure decision checklist which records there are no s.437, or s.438(1)(a) or (b) documents on the file. It does not contain any adverse information. There is nothing adverse or sensitive in the information contained in those folios. Having considered the certificate and the material contained in the folios the Tribunal finds the reasons given do not properly identify a basis for public interest immunity. There is no suggestion that the documents or their content would harm the nation or public interest by disclosure of the material.  The Tribunal finds the certificate is not valid. As the Tribunal found the certificate is invalid and the documents referred to do not contain any adverse information it was unnecessary to advise the applicant of its existence.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The Tribunal has considered it and other information on the Department’s file which includes the following. 

8. The applicant, [was] born on [Date 1]. She is the child of [Ms A], born [Date 2], and [Mr B], born [Date 3]. The applicant also has a [sibling], born on [Date 4] in Australia. The applicant’s parents claim that their religion is Yiguan Dao.  It is claimed in the visa application that if [the applicant] goes to China she will be an unregistered child (“black child”) in China and she will be persecuted by the authorities because of her family’s beliefs. Also her parents have not legally married and so as they have children born out of wedlock her parents will have to pay social compensation fees. It is submitted that the actual fines will be higher than the relevant regulations provide and her parents will not be able to obtain household registration for [the applicant] or her [sibling]. It is also submitted that her parents will need to bribe officials including the Public Security Bureau and that this amount can be significantly higher than the actual social compensation fines. It is submitted that it will be impossible for [the applicant] and her [sibling] to obtain household registration. It is also submitted that the family lives in terrible poverty. Her mother cares for [the applicant] and her [sibling] so it is impossible for her to work. Her father has had difficulty finding jobs because employers want to employ permanent residents or Australian citizens. Her parents frequently ask for, or borrow, money from friends for food, rent, medical expenses, clothing and other bills. It is asserted that her parents would be unable to pay the social compensation fees. As black children they will be under threat and will not survive.  

9. It is submitted that [the applicant]’s great-great-grandfather was an Enlightened Master of Yiguan Dao. Her mother’s grandfather became a believer and before her mother came to Australia she was introduced to the religion in 2005. [Ms A] spread Yiguan Dao to her best friend with whom she kept in contact after she came to Australia. After her best friend married in China she set up a secret group at her and her husband’s home organising young people to study the religion. However a member of the secret group was discovered by the PSB and confessed. Her best friend and husband were arrested by the police [in] December 2012. [Ms A]’s father and grandfather were also arrested by the PSB [in] December 2012. It is asserted that they were still in prison at the time of visa application. As a result her mother cannot return to China. It is asserted that her whole family are faithful members of the religion which has been banned by the authorities in China since the 1950s. Therefore her whole family will be subjected to persecution if they return to China.

10. The application records that [the applicant]’s parents and [sibling] previously applied for protection visas but the applications were refused. The delegate’s decision was affirmed by the RRT. It is asserted that the RRT misstated or misunderstood her parents’ evidence. However due to financial hardship her parents were unable to afford the legal costs to seek judicial review.

11. The applicant’s parents provided to the Department further information including photographs of her parents participating in activities associated with Yiguan Dao, and birth certificates for [the applicant] and her [sibling]. There is also a letter from [Mr C] on behalf of the President of [an association] dated [September] 2015 which states that [Ms A] is an active member of the weekly Chinese cultural class and her eldest [child] is enrolled in the Children Chinese Classic Recitation class. The letter confirms that a written testimonial was provided for [Ms A] [in] June 2014.

12. As [the applicant] was an infant her mother attended the interview with the delegate on 22 September 2015. The delegate has recorded information given by the mother in that interview in the decision record provided to the Tribunal. The Tribunal has listened to the recording of the interview. While the information recorded in the delegate’s decision record is not a transcript, the Tribunal is of the view it reasonably represents information given by [the applicant]’s mother.

13. The delegate was not satisfied that Australia owes protection obligations to [the applicant]. Having taken into account country information she found household registration (hukou) reform has taken place in China. On 25 August 2014 the Fujian Public Security Department implemented a new provisional Household Registration Management system, under which the provincial PSB officials were directed not to treat payment of social compensation as a prerequisite for accepting an application for hukou registration. She noted Fujian babies, including those born “out of plan” or out of wedlock, should have access to household registration, whether or not the social compensation fee has been paid.

14. The delegate found, accordingly, that the applicant’s parents will be able to register [the applicant] if one or the other of her parents returns to China. She found that [the applicant] will be registered and therefore not a “black child”. She found therefore that she will have access to the public education system, the health system and childcare services. She noted from the country information that the family planning policies in China had been relaxed in recent months. China has now legislated in response to falling birth rates, ageing population and an imbalance in genders for each family to have 2 children. She also noted from the country information that the family planning policies are laws of general application that affect all citizens of China. Penalties for breach of family planning policies are prescribed in laws that apply generally. The enforcement of the policy is applied in a non-selective manner. She found that there is no indication that the applicant’s parents would be differentially affected by this policy for any reason. She noted that the applicant’s parents have demonstrated their ability to support themselves and their family while in Australia. She formed the view that if they return to China, where they are citizens, speak the language and have the support of family, it is reasonable to assume that they will be able to seek and undertake gainful employment to support their family. As a consequence she was satisfied [the applicant] would not be affected by her parents’ lack of ability to pay any social compensation fee should she go to China. She found that [the applicant] will be registered and will have access to the public education system, the health system and any childcare services available.

15. With respect to the claims regarding Yiguan Dao, the delegate noted that the RRT was not satisfied the applicant’s mother was a Yiguan Dao practitioner. She took into account photographic evidence provided and a letter from [Mr C] but noted that the letter was not on a formal letterhead which included an address and telephone number of the organisation and therefore gave it no weight. She noted that the applicant’s mother had lived in [Suburb 1] NSW at the time of the visa application. She recorded that on 2 June 2016 she spoke to Master [D] of the [Temple], [Suburb 1] and that he did not know the applicant. Nor was he familiar with the applicant’s mother. She noted that the only activity the applicant claims to have undertaken as a member of Yiguan Dao was to have been baptised. She was not satisfied on the basis of the evidence before her that the applicant is a practising and committed member of the Yiguan Dao religion and therefore she was not satisfied she would face any persecution for the purposes of religion if she were to go to China. She noted that the RRT was not satisfied the applicant’s parents or [sibling] met the definition of refugee because of their religion. She found as a consequence that it was unlikely the applicant’s parents would be arrested if they returned to China.

16. Prior to the hearing the representative provided to the Tribunal the following information: photographic evidence of the applicants and her family with other Yiguan Dao practitioners, in temple settings, outdoors and in classroom settings; and a statutory declaration attested by [the applicant]’s mother Ms [A]. In the statutory declaration [Ms A] stated that she is a faithful member of Yiguan Dao and that she has played an active role in the temple since she arrived in Australia in 2007, in Sydney, Melbourne and Brisbane. She claims therefore to be a target of the Chinese government. She claims that she will be subjected to persecution if she returns to China. She acknowledged that her protection visa application, along with that of her partner and first [child], was refused by the Department and that decision was affirmed by the RRT. She believes that the RRT misstated or misunderstood her evidence. She believes that [the applicant] will be abused if she goes to China. She commented on the RRT’s findings. With respect to the RRT’s concerns regarding her and her partner’s credibility and her partner’s decision to commit to Yiguan Dao in January 2013, she stated her partner’s initiation into Yiguan Dao originated from her own influence and a spiritual dream he experienced. She noted that the RRT had considered her and her partner’s inconsistent evidence as an indication of lack of credibility. She indicated that there are many different reasons why her partner committed to Yiguan Dao. She believes that while the responses were initially different, they were not in conflict. She provided explanations regarding concerns about her partner’s attendance at meetings and the reasons she and her partner moved from Melbourne to Sydney in 2013, and inconsistencies in their evidence about when they met. She addressed concerns raised by the RRT regarding her Yiguan Dao practice, her mother and brother not being Yiguan Dao disciples, the cancellation of her student visa, the delay in her application for protection and her partner’s credibility. She noted the RRT raised issues about [Mr C]’s credibility. On the topic of family-planning, [Ms A] stated that she became aware of the Chinese government’s loosening of the family-planning policies since she applied for her visa. She noted however that [the applicant] was still born out of wedlock and it was still up to the Chinese government’s discretion as to whether she would be registered. She believes that because of her identity as a Yiguan Dao disciple she will be considered unfavourably by the government. She stated that as a Yiguan Dao disciple she is still violating the law.

17. The representative provided to the Tribunal statutory declarations attested by [Mr C], [at] [a] Temple in Melbourne, [Mr E] who is in charge of [a] Temple in Brisbane, and [Mr F], a Yiguan Dao believer. [Mr C] states that he has previously confirmed that the applicant’s mother is an active member of the Yiguan Dao Temple and a faithful believer. He states that she regularly attended Temple in Melbourne from July 2008 to December 2015 and played an active role by assisting to organise ceremonies, spreading teachings and keeping in contact with other Yiguan Dao believers. [Mr E] states that he has known Ms [A] since 2007 when they attended Yiguan Dao Temple in Sydney. He states that she is active in attending ceremonies, worship, studies and various activities. She plays an important role in the temple, contacting believers and organising study teaching, giving lectures in children’s classes and arranging ceremonies. [Mr F] claims that he knows the applicant’s mother through her attendance at the temple in [Suburb 1]. They continued to remain in touch. He believes that she is a genuine and faithful Yiguan Dao believer who is involved in ceremonies and studies and plays an important role in the temple. He believes therefore that she and her family would be under serious threat in China.

18. The representative also provided a letter from [Mr D] in relation to the delegate’s comment that he was not familiar with the applicant or her mother. He claimed that during the beginning of their conversation, the delegate simply asked who [the applicant] was. He indicated he had no idea. When the delegate asked about [Ms A] he immediately stated that he knew her well. He stated that she had 2 [children] but he could not remember their names as they were very young. He stated that [Ms A] is a genuine believer of Yiguan Dao and plays an active role in the temple.

19. At the hearing on 13 March 2019 [Ms A] provided the following information. [Ms A] came to Australia as the holder of a student visa. She started attending the temple in [Suburb 2] NSW in September 2007, about 2 months after she arrived. She then moved to Melbourne by herself in about September 2008. She had previously met her partner, [Mr B], in Sydney when they lived in the same house. Their relationship started in about March 2010, although she also indicated that he moved to Melbourne in about September 2010 and then the partnership started. They moved to Brisbane at the end of 2015.

20. [Ms A] indicated she first practised Yiguan Dao in China in 2005. She was introduced to it by her grandfather. He had lived in Beijing. Her great-grandfather was a Master in Yiguan Dao in the 1940s. He continued practising in the 1950s but was arrested and driven out of [Town] having been accused by the Communist Party of participating in an anti-revolutionary cult. He was arrested and died a few years later. The Tribunal asked when her grandfather commenced his practice. She indicated that he had been practising since childhood but did it secretly at home. She indicated he started practising officially in about 2000 in [Village 1]. The Tribunal noted the country information indicates that there was no tolerance of the practice from the 1950s, although this changed later, and asked when he practised openly. She indicated that in about 1951 the whole family was driven out of the town and there was no temple. Her grandfather would read the scripture privately. She pursued Dao in 2005. She claimed that in 2002 she started to follow her grandfather to the [temple]. .

21. The Tribunal asked [Ms A] why she feared [the applicant] going to China. She indicated there were 2 reasons: first she is a child born outside China and she worries that she will not be registered and get an education; and secondly she is a member of Yiguan Dao and her family participate actively. She fears [the applicant] will be persecuted because she will participate in Yiguan Dao and she will also be persecuted.

22. The Tribunal asked the applicant’s mother if she had applied for a passport for [the applicant]. She indicated she had tried before she was interviewed by the delegate (in September 2015). However the passport was not given. She indicated that she was told she could not apply because the child was not born in China. She indicated that they asked for things that she could not give them. She indicated that when she lodged the passport application they did not issue it so she did not try again. She indicated that she last tried to get a passport for [the applicant] in 2014. The Tribunal noted that the country information indicates that as the child of Chinese nationals [the applicant] is considered a Chinese national and should be able to get a Chinese passport. The Tribunal explained that it was aware of other cases where children born in Australia of Chinese parents had been issued with Chinese passports. The applicant’s mother indicated that she would try again.

23. The Tribunal asked the applicant’s mother about her family background in China. She indicated that her mother lives in [Country] and that her parents are separated. Her mother is married to a [Country] citizen. She denied having any right to live in [Country]. She claimed that her father has been incarcerated in a Fuqing jail since 2014. She claimed that [in] December 2012 he was found to be attending Yiguan Dao with [Mr G], another member of Yiguan Dao. She believes he is still in jail because shortly before the hearing she rang her grandmother who informed her of this. Her grandmother is not a member of Yiguan Dao. Her grandmother lives in [Village 2], Fujian and her brother lives with her grandmother. He has a child, aged [age], but a marriage was not registered and the sister-in-law has taken the child. Her brother and his child’s mother did not marry because she was from a poor country village, too young, they had a romance and she fell pregnant. They met in [Village 2] when her sister-in-law came to work in a factory. She no longer lives there and she took the child away. [Ms A] indicated she has no other relatives in China.

1. The Tribunal asked [Ms A] if she and the applicant’s father have married. She stated that they are not married. Prior to talking to the Department they had prepared to marry but because the visas were not granted they did not proceed. The Tribunal asked why they had not proceeded to marry as it is not necessary to hold a visa in order to marry in Australia. She indicated that it might expose their identities in China. She indicated that if [Mr B] is not married he can go back to China and he will not be involved. Also when her visa application was refused she was scared to get in touch with the government because she feared that they would be deported.

2. The Tribunal discussed with the [Ms A] the correspondence from [Mr C], noting the delegate was not satisfied about his identity as the letter provided did not include a formal letterhead. Accordingly the delegate gave the letter no weight. The applicant’s mother indicated that the document must be genuine because Yiguan Dao believers cannot give fraudulent documents or they will go to hell.  

3. The Tribunal asked the applicant’s mother if she was known to the authorities before she left China and she confirmed that she was not. The Tribunal questioned how she knows the authorities know of her now. She indicated it is because she is a member of Yiguan Dao. The authorities are aware of her because she has her father’s name.

4. The Tribunal discussed with the applicant’s mother country information referred to by the delegate which indicates that family planning laws are laws of general application that affect the entire citizenry of China, and that breaches of family-planning policies are prescribed and apply generally. It explained that the recovery of a social compensation fee/fine is no longer a prerequisite to, or linked to the issue of the hukou for children in China[1]. It explained that it may form the view the application of the laws is not persecution. It also explained that it may form the view that [the applicant] will not be affected by the family-planning policies and she should be able to be registered should she go to China. [Ms A] acknowledged that [the applicant] can be registered in China but she would still have to pay a fine. She questioned what would happen to [the applicant] even if she is registered. The Tribunal noted that country information indicates that [the applicant] will be able to be registered and therefore she will receive education and health care. The applicant’s mother indicated that while [the applicant] will be able to access physical health care they will brand her as a member of Yiguan Dao and when she tries to get her vaccinated she will be treated differently. The Tribunal questioned whether the authorities would withhold vaccination as it would not be in the nation’s interest. The applicant’s mother indicated that psychologically [the applicant] will be discriminated against because she is a member of Yiguan Dao. She will not be treated as a normal person and people will think her mother is Yiguan Dao which is considered a cult or heretical in China. She also disputes whether [the applicant] will receive an education because of her religious beliefs. Also she will not be able to practice her religion if she goes to China.

   [1] For example paragraph 3.37 of the DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016 states that “In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou (residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid”. Paragraphs 5.3 and 5.4 of the Thematic Report refers to hukou reform in China, including in Fujian, and refers to the system of registration and what is required for children including those children born out of wedlock.  

5. The Tribunal referred to country information obtained by the Department in February 2018[2]. The Tribunal explained the information indicates that Yiguan Dao effectively ceased to exist in mainland China by the mid twentieth century. It was effectively eradicated during the early 1950s. However it gradually re-established itself in China through the work of missionaries from Taiwan and Hong Kong. The information records that teachers from Taiwan have been permitted to visit China since the mid-2000s. It explained that Yiguan Dao has now been associated with preserving cultural heritage in China.  Since the 1990s Taiwanese Yiguan Dao educators were invited to return to the mainland and help promote Chinese tradition in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal explained that the country information indicates that Yiguan Dao is now seen as contributing to the revitalisation of traditional Chinese culture and that the Chinese authorities were in favour of Yiguan Dao’s return to mainland China for several reasons. It is seen as highlighting moral teaching, garnering support from Taiwanese and overseas Chinese as well as stemming the growth of Christian groups. Government has been seeking ways of legalising Yiguan Dao while managing the issue of its past criticism of the group. It is no longer included on the official list of evil cults indicating a significant change in the attitude of the authorities. The Tribunal explained that this country information indicates there is mutual understanding between Yiguan Dao groups and the mainland authorities. It noted it had not seen information indicating Yiguan Dao practitioners were being arrested, detained or imprisoned in China. It explained that on the basis of this information it may form the view that, even if [the applicant]’s parents continued to practice Yiguan Dao and she is encouraged to practice Yiguan Dao, she and her immediate family will not face persecution in China.

   [2] CI180105095446266 - Yiguandao (Yi Guan Dao, Yiguan Dao, I-Kuan Tao, Tian Dao, Unity Sect), 16 February 2018, Department of Home Affairs

6. The applicant’s mother indicated that the authorities focus on the cultural exchange but they do not support the spread of Yiguan Dao. She indicated that when followers exchanged messages they do not mention the words of the Master or Dao. The members are not allowed because it might expose the whereabouts of the Enlightened Master. The Chinese government will eavesdrop on their mobile communication so they do not use mobile applications in China. She claimed they cannot spread the word of Dao; the authorities only support the cultural exchange. She does not accept that Yiguan Dao members are able to spread Dao in China. The Tribunal noted [the applicant]’s age and indicated that it may not be satisfied that she will spread Dao in the foreseeable future if she is sent to China. The applicant’s mother indicated that when she teaches in the temple she would take her children with her. [The applicant] has been educated in the principles of Yiguan Dao. She has been registered as a Yiguan Dao member for the rest of her life. She can now only worship the heavenly mother. Because she has pursued Dao she cannot go on another path. She has been initiated in Yiguan Dao - this is her path forever.

7. With regard to any social compensation fee that may have to be paid, the Tribunal noted that it is not [the applicant] who would have to pay the social compensation fee, but her parents. The Tribunal indicated on the basis of the country information it may not be satisfied that [the applicant] would suffer harm because of any social compensation fee owed by her parents. The applicant’s mother indicated it will be about her health and whether [the applicant] can be vaccinated if she goes to China. Also she cannot enrol at school without vaccinations. She indicated that she could afford the social compensation fee however she was not sure about the costs of vaccination. Because [the applicant] was born in Australia she would not have a green book which is required for vaccinations. Also she has no birth certificate in China so she will not be able to have the document required to receive vaccinations. The Tribunal indicated that it may not accept that [the applicant] would not receive her vaccinations because she was born outside China. The applicant’s mother indicated that she does not have the book given to Chinese babies at birth. It is necessary to have the book and without it she would have to bribe the authorities to get her children vaccinated. The Tribunal questioned whether the authorities would run the risk of an outbreak by denying children vaccination. The applicant’s mother indicated that the risk is not big; [the applicant] is only one person in 1.3 billion. The Tribunal noted that [the applicant] will not be the only child born outside China. The applicant indicated others could afford to buy the booklet to allow their children to be vaccinated.

8. The Tribunal asked the applicant’s mother if she had any other evidence to give as to why it should be satisfied that Australia owes [the applicant] protection obligations. The applicant’s mother indicated she hoped that the Tribunal would be fair and just in its review. She indicated that her protection application was refused in a casual way and she had a lot of grievances about that decision. She is a sincere member of Yiguan Dao.

   Other country information

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The Department Foreign Affairs and Trade (DFAT) Country Information Report, China – 21 December 2017 provides the following information:

    Other Buddhist Sects

    Buddhism has long been acknowledged as a major religious faith in China. Other than the highly distinctive Tibetan Buddhism, however, there is no clear distinction between Buddhism, so-called ‘folk religions’ and Daoism, all of which exert an influence in Chinese culture. As an East Asian religion, Buddhism has not been targeted for ‘sinicisation’ in the same way as Christianity or Islam, although DFAT is aware of instances where local officials have targeted Buddhist monks and nuns for performing rites regarded as superstitious.

    Academic studies suggest that Yiguandao (which is an illegal sect in the PRC) ceased to exist in mainland China by the mid-twentieth century, but that it has been gradually re-establishing as an underground movement through the efforts of missionaries from outside mainland China (notably Taiwan and Hong Kong). DFAT is not able to verify the extent to which Yiguandao members practise their faith in China. As it is an illegal organisation, members coming to attention of the authorities are likely to face a degree of harassment, but DFAT is unable to verify the extent or severity of such harassment.[3]

    [3] DFAT Country Information Report, China – 21 December 2017, paras 3.35-3.36

11. The Tribunal takes into account the DFAT report as it is required to do. However it notes that there is more recent country information which indicates that the attitude of the Chinese government to Yiguan Dao has changed and Yiguan Dao is no longer considered to be an “evil cult”. The Country of Origin Information Services Section of the now Department of Home Affairs undertook research and reported the following information on 16 February 2018. There was no clear indication of the prevalence of Yiguan Dao in China, or in Fujian province.[4]  Limited information was located on the treatment of practitioners. One academic authority on the sect reports that the Chinese government may be seeking ways of legalising Yiguan Dao but issues include how to manage its past criticism of the group.  Since the 1990s Yiguan Dao has been associated with preserving cultural heritage in China. Some Taiwanese Yiguan Dao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. While Yiguan Dao had been suppressed in mainland China the situation changed in the mid-1980s and the National Studies Fever of the 2000s provided a means for Yiguan Dao to contribute to the revitalisation of traditional culture. While in the past Yiguan Dao was can considered to be an evil cult and followers had to relinquish their membership and publicly denounced the religion, the call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. The National Studies Fever began in 1993 in universities and gradually spread to the public becoming more popular in the 2000s. Scholars, educators and parents were devoted to the trend while the state invested national resources to construct infrastructure and to promote the movement. Confucius institutes were established and there are now 500 branches offering 1000 courses, educating in the Chinese language and propelling Chinese culture into the world. It is argued that this is seen as revitalisation movement that the state and society used to try to restore the missing traditional culture, though Yiguan Dao also tries to syncretise Buddhism, Taoism, Christianity and Islam with Chinese culture, mainly Confucianism. Yiguan Dao has thus participated in the trend.[5]  Academic Assistant Professor in Chinese Religions Studies at Tawain’s National Chengchi University, Ching-Chih Lin states that:

    […] Some branches of Yiguandao sent followers back to China to set up preschools and extracurricular schools with specialization in reading Chinese classics and poems, plus highlighting moral teaching, which differentiates them from their regular competitors. In the 21st century, Yiguandao has been afforded a very promising opportunity to return to mainland China as part of the National Studies Fever. In fact, Yiguandao’s return was tacitly connived at by the PRC for multiple purposes: to promote the grassroots organizations of National Studies Fever, to win over the Taiwanese and overseas Chinese, and to stop the rapid growth of Christian churches and sects in rural areas.[6]

    [4] Country of Origin Information Services Section, Department of Immigration and Border Protection, , China: CI180105095446266 – Yiguandao (Yi Guan Dao, Yiguan Dao, I-Kuan Tao, Tian Dao, Unity Sect)

    [5] ‘Yiguan Dao under the Shadow of Nationalism: Traders, Conspirators, traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p 243

    [6] Ibid pp 243-244

12. According to Lin, representatives of mainland Chinese government engaged in dialogue with Yiguan Dao representatives in Taiwan in the 1990s and 2000s. He references material which suggests that the PRC government is seeking a way to allow Yiguan Dao to return to mainland China and states:

    […] In fact, the backroom communication between the PRC and Yiguandao representatives started in the 1990s, and the public interactions began in the mid-2000s. In the first stage, the PRC government sent scholars with special backgrounds, such as retired police officers or officials of the Taiwan Affairs Office or the United Front Work Department to contact Yiguandao in Taiwan and abroad. Yang Liuchang (楊流昌), an official of the Taiwan Affairs Office, earned a PhD in Beijing investigating the history of Yiguandao and its development in Taiwan and published his dissertation in Hong Kong. This book suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China as it concentrates on the process of legalization and negotiations between the KMT and the religion[7]

    [7] Ibid, p 244

13. Lin also states that the Chinese authorities did not include Yiguan Dao on the official list of evil cult issued in 2000, indicating a change in attitude. This was strengthened by invitations to Yiguan Dao leaders to visit mainland China from 2006. He acknowledges that in the past, most activities of Yiguan Dao in mainland China were under surveillance and some religious leaders were arrested or exiled. There is now mutual understanding which began in the early 1990s when Yiguan Dao associations made donations to assist victims of several natural disasters. Yiguan Dao leaders entrusted messages to scholars to communicate with the think tank Institute of World Religions, Chinese Academy of Social Science in 1996 and invited the Institute’s faculty members to visit branches of Yiguan Dao and attend academic forums organised by the religion from 1997 onwards. Yiguan Dao leaders were invited to visit mainland China from 2006 onwards. The United Front Work Department even invited several top leaders of Yiguan Dao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[8]

    [8] Ibid, p 245

14. Research undertaken by the Country of Origin Information Services Section in a report dated 7 June 2017[9] did not locate any information from searches on Yiguan Dao practitioners being arrested, detained or imprisoned in mainland China.

    [9] Country of Origin Information Services Section, Department of immigration and Border Protection, China: China: CI170518131121268 – Yiguandao (Yi Kuan Tao, I-Kuan Tao, Tian Dao)

15. In addition to country information referred to by the delegate the Tribunal also considered the following information about household registration and social compensation fees - DFAT Thematic Report Fujian Province, People’s Republic of China,16 December 2016; CX0562B6F11: “China. Country Information Request-C1160219094800679-Fujian registration of children and out of plan births, Department of Foreign Affairs and Trade, 24 March 2016; DFAT Country Information Report, China – 21 December 2017. It also considered RRT Country Advice China, CHN40286, 13 July 2012. The Tribunal discussed relevant parts of the country information with the applicant at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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, the applicant 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.

17. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

18. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

1. 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 a protection 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 the applicant 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’).

   Nationality

2. The applicant’s mother has indicated that she was unable to obtain a Chinese passport for [the applicant] when she attempted in 2014. The Tribunal has considered country information in CHN40286 which records that according to Article 5 of the Nationality Law of the People’s Republic of China, if a parent of a person born abroad is a Chinese national or both parents are Chinese nationals, then that person shall have Chinese nationality. The Tribunal finds [the applicant]’s parents provided copies of their Chinese passports with [the applicant]’s visa application. It finds both of her parents are Chinese nationals. Accordingly the Tribunal finds the applicant is a Chinese national. The Tribunal finds that she is outside her country of nationality. The Tribunal is not satisfied there is evidence to suggest that she has a right to enter and reside in any country other than her country of nationality.

3. [The applicant]’s parents’ passports indicate they are from Fujian Province. Accordingly this is the province in China which the Tribunal considers to be the location in which [the applicant] and her family would reside if she goes to China.

   Does the applicant have a well-founded fear of persecution?

4. [Ms A] has made several claims on her behalf. She has claimed that [the applicant], her parents and [sibling] practice Yiguan Dao. Her mother and father are active members in Temple and her mother also teaches Yiguan Dao to children. She actively spreads the word of Yiguan Dao. [The applicant] is also a Yiguan Dao member. [The applicant] will be psychologically discriminated against because she is a Yiguan Dao member. She is a child born outside China and her parents are not married. Accordingly she will be considered a black child and will not be registered. Also her parents will need to pay a social compensation fee. The social compensation fees will be higher than the relevant regulations, because the family are Yiguan Dao members, and her parents will need to bribe officials. [Mr B] has difficulty finding work because he does not have permanent residence. They have had to borrow money to survive. The family will live in poverty. [The applicant]’s great-great-grandfather was an Enlightened Master and her great-grandfather is a Yiguan Dao believer. [The applicant]’s grandfather and great-grandfather have been arrested in the past and in December 2014 her grandfather was incarcerated. [Ms A] has spread the word of Yiguan Dao to her best friend who then set up a group and was arrested in 2012. [The applicant]’s parents have not been able to get her a Chinese passport. [The applicant] will not be able to be vaccinated because she does not have a green book she was not born in China, and because she is a Yiguan Dao member.

5. The Tribunal has first considered the issue of whether [the applicant] is a Yiguan Dao member. It notes that the RRT was not satisfied that her parents were Yiguan Dao members and their applications for protection were refused. However the Tribunal has taken into account the further evidence provided to this Tribunal, including the letter from [Mr D], photographic evidence of her family in Temple settings and of her mother teaching Yiguan Dao, and other statements supporting the claims that the family are Yiguan Dao practitioners. On the basis of the evidence recently provided to this Tribunal, it is satisfied that [Ms A] is a Yiguan Dao practitioner. Accordingly it is prepared to accept her father and [sibling] are also members.  It accepts her evidence that [the applicant] has commenced her education in the principles of Yiguan Dao. It also accepts that her mother has registered [the applicant] as a Yiguan Dao member and that her mother wishes for her to remain on this path forever.

6. Having considered the country information the Tribunal notes that the DFAT Report of December 2017 records that Yiguan Dao is an illegal organisation, and as such members coming to the authorities’ attention are likely to face a degree of harassment, but DFAT is unable to verify the extent or severity of such harassment. However the Tribunal notes that more recent country information records that the government’s attitude to Yiguan Dao has changed and Yiguan Dao is no longer considered to be an “evil cult”. The Tribunal notes an academic authority on the sect suggests that the Chinese government may be seeking ways of legalising Yiguan Dao.  The Tribunal accepts that since the 1990s Yiguan Dao has been associated with preserving cultural heritage in China. Taiwanese Yiguan Dao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the situation for Yiguan Dao members changed in the mid-1980s and the National Studies Fever of the 2000s provided a means for Yiguan Dao to contribute to the revitalisation of traditional culture. The call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. The Tribunal notes scholars, educators and parents were devoted to the trend while the state invested national resources to construct infrastructure and to promote the movement, Confucius institutes were established and there are now 500 branches offering 1000 courses, educating in the Chinese language and propelling Chinese culture into the world. The Tribunal notes there is a revitalisation movement that the state and society used to try to restore the missing traditional culture, though Yiguan Dao also tries to syncretise Buddhism. The Tribunal notes invitations were given to Taiwanese Yiguan Dao leaders to visit mainland China from 2006. While activities of Yiguan Dao in mainland China were under surveillance and some religious leaders were arrested or exiled it notes there is now mutual understanding which began in the early 1990s when Yiguan Dao associations made donations to assist victims of several natural disasters. The Tribunal notes Yiguan Dao leaders were invited to visit mainland China from 2006 onwards and the United Front Work Department invited several top leaders of Yiguan Dao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[10]

   [10] Yiguan Dao under the Shadow of Nationalism: Traders, Conspirators, traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p 245

7. Having considered this more recent country information the Tribunal is not satisfied that practitioners of Yiguan Dao are persecuted or harmed in China. The Tribunal has taken into account [Ms A]’s assertion that while the government supports the cultural aspects of Yiguan Dao they do not support the spread of Yiguan Dao. Having considered the country information set out above the Tribunal is not satisfied that this is the case. It has formed the view that the situation for Yiguan Dao members has improved and appears to be improving to the extent that the authorities in China are looking for ways of legalising Yiguan Dao as they consider it promotes Chinese tradition and slows down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the Country of Origin Information Services Section in a report dated 7 June 2017[11] did not locate any information from searches on Yiguan Dao practitioners being arrested, detained or imprisoned in mainland China. It notes that her mother practised Yiguan Dao in China before coming to Australia and did not come to the attention of the authorities. On the basis of the country information the Tribunal is not satisfied that there is a real chance [the applicant] will suffer serious harm because she and/or her parents and/or her [sibling] are members of Yiguan Dao.

   [11] Country of Origin Information Services Section, Department of immigration and Border Protection, China: China: CI170518131121268 – Yiguandao (Yi Kuan Tao, I-Kuan Tao, Tian Dao)

8. The Tribunal has taken into account [Ms A]’s claim that psychologically [the applicant] will be discriminated against because she is a Yiguan Dao member.  The DFAT report indicates that members who come to the attention of the authorities are likely to face a degree of harassment, although DFAT is unable to verify the extent or severity as such harassment. The Tribunal is not satisfied that [the applicant] who is only [number] years old will be discriminated against because she is a member of Yiguan Dao. Nor is it satisfied, given the country information discussed above, that she will be discriminated against because her immediate family are Yiguan Dao followers.

9. The Tribunal has considered the claim that [the applicant]’s great-great-grandfather was the Enlightened Master and her great-grandfather and grandfather were believers. It is claimed her grandfather has been incarcerated since 2014. It notes however that research undertaken by the Country of Origin Information Services Section in a report dated 7 June 2017[12] did not locate any information from searches on Yiguan Dao practitioners being arrested, detained or imprisoned in mainland China. [Ms A] seeks to rely on her assertions that her father has been incarcerated since 2014 however on the basis of the material before the Tribunal it is not satisfied that this is the case. Therefore it is also not satisfied that [Ms A] is of adverse interest to the authorities in China because of her connection to [the applicant]’s grandfather. Accordingly it is not satisfied that there is a real chance [the applicant] will suffer serious harm on the basis of these claims.

   [12] Country of Origin Information Services Section, Department of immigration and Border Protection, China: China: CI170518131121268 – Yiguandao (Yi Kuan Tao, I-Kuan Tao, Tian Dao)

10. The Tribunal has considered the claim that [Ms A] spread Yiguan Dao to her best friend and her best friend then set up a group. She also claims the best friend and her husband were then arrested in 2012. Having considered the country information the Tribunal is not persuaded that this is the case. Even if this had occurred it is not satisfied [the applicant] will be harmed because of it, if she goes to China. [Ms A] has also claimed that she will spread the word of Yiguan Dao.  The Tribunal notes that she has provided statements of support from various Yiguan Dao members which indicate that she plays a significant role in the temple, keeping in contact with members, organising ceremonies and teaching others about Yiguan Dao. The Tribunal note that the Chinese authorities have been arranging Taiwanese branches to send people to China to teach the principles of Yiguan Dao. It is not satisfied in these circumstances that there is a real chance [the applicant] will suffer serious harm if her mother plays an active role in a Yiguan Dao temple in China.

11. [Ms A] has indicated that [the applicant] will suffer harm because she is a child born outside China. She is indicated she has been unable to obtain a Chinese passport for [the applicant]. As indicated above the Tribunal notes that according to Article 5 of the Nationality Law of the People’s Republic of China, if a parent of a person born abroad is a Chinese national or both parents are Chinese nationals, then that person shall have Chinese nationality. On this basis, having considered [the applicant]’s parents Chinese passports, it is satisfied [the applicant] is considered to be a Chinese national. It notes that if she is unable to obtain a Chinese passport the Chinese authorities will issue a travel document which will enable her to travel to China.[13] and once she is in China and registered with a hukou she will be able to apply for a Chinese passport.

    [13] RRT Country Advice China, CHN40286, 13 July 2012.

12. At time of application it was claimed that, because she was born out of wedlock, [the applicant] will not be able to be registered and she will be considered a “black child” who will not have access to education and health services. The Tribunal has taken into account the recent country information which indicates that the law has been changed such that the recovery of a social compensation fee/fine is no longer a prerequisite to, or linked to, the issue of the hukou for children in China. Prior to the hearing [Ms A] submitted it was at the government’s discretion as to whether [the applicant] would be registered. At the hearing [Ms A] conceded that [the applicant] can be registered in China but she would still have to pay a fine. She questioned however what would happen to [the applicant] even if she is registered. The Tribunal notes that country information indicates that [the applicant] will be able to be registered and therefore she will receive education and health care. The applicant’s mother indicated that while [the applicant] will be able to access physical health care they will brand her as a member of Yiguan Dao and when she tries to get her vaccinated she will be treated differently. There is no country information before the Tribunal indicating that the authorities would withhold vaccination because [the applicant] was not born in China, or because she does not have a green book, or because she is a Yiguan Dao member, or for any other reason, and therefore it does not accept this claim. [Ms A] also questioned whether [the applicant] would receive an education because of her religious beliefs.  Again the Tribunal does not accept there is any country information before it indicating [the applicant] will be denied an education because she and her family are Yiguan Dao members. It is not satisfied there is a real chance [the applicant] will suffer serious harm because she is a child born out of wedlock.

13. The Tribunal accepts that the parents may need to pay a social compensation fee. [Ms A] has submitted that the father has had difficulty securing employment in Australia because he is not a permanent resident and that they have had to borrow money to survive. She has claimed the family will live in poverty in China, and [the applicant] will suffer harm because of this. The Tribunal notes that [the applicant] has family in China, her grandmother and uncle. It is of the view that [Mr B] will not face the obstacles in securing employment in China which he has faced in Australia because he is a citizen of China and he speaks the local language. The Tribunal also notes that [the applicant]’s parents are resourceful and have had the resources to move interstate, from Sydney to Melbourne to Brisbane in 2015, while residing in Australia. Overall the Tribunal is not satisfied that there is a real chance [the applicant] will suffer serious harm because of poverty if the family returns to China and her parents are required to pay a social compensation fee.

14. [Ms A] has claimed that the social compensation fines will be higher than the regulations provide in her case and the parents will have to bribe officials because the family are Yiguan Dao members. The Tribunal notes the country information indicates Yiguan Dao is no longer on the evil cult list and that there has been a change in attitude to the practice by the authorities. The country information indicates the authorities are in favour of its return to the mainland for several reasons, including to garner support from Taiwanese and overseas Chinese people, as well as to stem the growth of Christian groups in rural areas.[14] It is not satisfied therefore that [the applicant]’s parents will have to pay higher fines and bribes because they are Yiguan Dao members. The Tribunal notes the country information mentioned in the delegate’s decision record indicates that there is flexibility and discretion with local authorities in relation to the amount of, and recovery of, any social compensation fee imposed. Having regard to the country information and evidence before it the Tribunal finds that there is flexibility and discretion in relation to the amount of, and recovery of, any social compensation fee that will be imposed on [the applicant]’s parents if they return to Fujian, China. Given that flexibility and discretion, the Tribunal finds that there is not a real chance that [the applicant] will suffer serious harm because her parents will have to pay a social compensation fee on return to their country.

    [14] Yiguan Dao under the Shadow of Nationalism: Traders, Conspirators, traditionalists, or Loyalists?’, Ching-chih Lin, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, 2017, Amsterdam University Press, CISEDB50AD8167, p 243-244

15. Considered overall the Tribunal is not satisfied that there is a real chance [the applicant] will suffer serious harm because of her religion, her parents or her [sibling]’s religion, or the religion of any other relative in China, if she goes to China. It is not satisfied there is a real chance [the applicant] will suffer serious harm because she is a child born out of wedlock, and her parents will be required to pay a social compensation fee, if she goes to China. It is not satisfied there is a real chance she will suffer serious harm for any of the reasons claimed or for any other reason if she goes to China. Accordingly, it is not satisfied she meets the definition of refugee. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does the applicant meet the complementary protection criteria?

16. The Tribunal must also consider whether [the applicant] meets the criteria for complementary protection.

17. A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

18. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

20. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1).  The Tribunal accepts that [the applicant] and her family may be Yiguan Dao members in China. It accepts that her mother may be an active participant in a Yiguan Dao temple in China. It accepts that she is a child born out of wedlock and her parents will have to pay a social compensation fee if they return to China. The Tribunal however is not satisfied 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 she will suffer significant harm.  She therefore does not satisfy s.36(2)(aa).

    Conclusion

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

2. 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

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

   Denise Connolly
   Member