1611544 (Refugee)

[2019] AATA 5556

1611544 (Refugee) [2019] AATA 5556 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611544

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:12 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 April 2019 at 3:57pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholics – attendance of underground church – commitment to preaching the gospel – distribution of Christian materials – speaking in tongues – credibility issues – delay in applying for protection – risk of serious harm – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas on 30 March 2015. The delegate refused to grant the visas on the basis that she was not satisfied the applicants are persons in respect of whom Australia has protection obligations.  

   CLAIMS AND EVIDENCE

   Evidence provided to the Department

3. When making the visa applications the first named applicant (the applicant) provided the following information. She was born in Fuqing, Fujian Province, China on [date]. She is a citizen of China. She does not have the right to reside in any other country. Her religion is Catholic. She married [in] January 2013. She and her husband, the second named applicant, had one child, a son born [date], the third named applicant. The second named applicant was born on [date] in Pingtan, Fujian Province.

4. The applicant provided a Certificate of Believer’s Baptism certifying that the applicant was baptised at [Church 1] [in] April 2006, and a Certificate of Church Membership dated [May] 2006 from the same church.

5. The applicant provided a Certificate of Baptism and Confirmation for the third named applicant dated [date] stating that he was baptised [at Church 2]. She also provided a Certificate of Marriage recording that the first and second named applicants were married [in] October 2014 at [Church 2].

6. The applicant provided a written statement with her visa application making the following claims. She came to Australia in 2006 to study. She was born into a Christian family and from an early age followed her parents to attend house churches. Her mother was punished by the local government for organising underground house churches. When she attended high school she did not to go to any unauthorised gatherings because she was afraid she would be punished and expelled from school. The second named applicant was born into a Catholic family and his parents attended Roman Catholic churches. Shortly after his birth he was baptised into the Catholic Church. In China he attended the Roman Catholic Church which was the target of the government’s crackdown. The unauthorised church he attended was on the list of those that the local government was trying to block.

7. The applicant stated that after her arrival in Australia she commenced attending church here and [in] April 2006 her uncle took her to [Church 1] to be baptised. He is a pastor of an Australian church.  Under his influence she became enthusiastic about preaching. She met her husband and she converted to Catholicism. In 2013 they returned to China to register their marriage. In October 2014 they held a wedding ceremony in the Catholic Church in Sydney.

8. The applicant claims that after she was baptised she committed to the faith and gospel preaching as a lifetime mission. She claims she has converted several of her classmates and friends to Christianity.

9. The applicant claims that when she was young she witnessed the police arresting participants in the unauthorised church. Her parents were arrested and punished for attending underground gatherings. Knowing that churches in China are oppressed, the applicant cherishes being in Australian churches. When she visited her family in China she took with her some gospel material and information, especially about the Pope, to the churches there. She also preached the gospel to her friends while she was visiting. Many who heard the gospel from her used to have bad habits and refused to repent. Since converted almost all of them have turned over a new leaf by saying goodbye to their past and going to church to be baptised and committing to preaching the gospel. Her cousin used to be domineering and bullying but since her conversion she has become modest and willing to repent. She is now serving the church as a volunteer. In 2014 when the applicant was visiting family in China she and her cousin distributed gospel pamphlets in a house church. Soon after the applicant returned to Australia her cousin was summoned by the police for enquiry on the charge of preaching illegally. The applicant’s parents were also investigated.

10. The applicant is convinced that there is no freedom of faith in China and that there is an essential difference between the patriotic church and the Roman Catholic Church. She holds her faith unswervingly. She looks forward to a future chance of going to preach in China, organising house churches and propagating the Pope’s voice there. Both she and her husband have a strong sense of mission by preaching the gospel. They are now serving God in the same church. It is impossible for them to preach the gospel safely in China so they seek Australia’s protection.

11. In his visa application the second named applicant indicated that he is also making his own claims for protection but relied on the applicant’s written submission.

    Evidence provided to the Tribunal

12. The applicant has provided to the Tribunal a copy of the birth certificate of her second child, a daughter born on [date].

13. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant attended an interview with a delegate on 13 April 2016. The delegate has summarised the information given by the applicant at the interview. The Tribunal has listened to the recording of the interview and, while it is not a transcript, considers the delegate’s record of the information given to be correct. The following information comes from the decision record.

14. The applicant stated that her husband stayed at home to look after their infant son but his experiences were similar to her own. The applicant told the delegate that the second named applicant did not have additional information to impart. No further evidence was provided to the delegate after the interview.

15. The applicant first arrived in Australia [in] January 2006 as the holder of a student visa. The second named applicant arrived in Australia [in] July 2007 as the holder of a student visa. The first and second named applicants both returned to China various times, most recently [in] December 2014 and they returned to Australia [in] January 2015. They lodged the visa applications on 30 March 2015.

16. The applicant attended church every week with her parents and she personally experienced no trouble before she came to Australia except for having no regular time or place to attend. Her parents had been arrested and fined by the PSB for attending family church. Her mother was once notified by the police that she should not attend unsanctioned church sessions. She was [age] years old at the time. It was during a house church meeting. Her mother had warned the priest to leave as someone was coming. She was arrested for warning the priest. The applicant did not know how her mother had known the priest was in danger. Her mother was incarcerated for 2 days and release when she paid a fine. During her detention she was beaten and since then her mother has had back trouble. Since then the applicant’s parents have been constantly called and questioned by the police.

17. The applicant became a Roman Catholic in Australia and she fears she might be prosecuted in China because she would spread the word about Jesus. She converted to Roman Catholicism to follow her husband’s faith. After she met her then boyfriend he started telling her about Catholicism. They were invited to a church in [Suburb 1] to attend a worship carried out by a group of people. Her boyfriend had been experiencing chest pain for some time which could not be explained by doctors. After attending the service in [Suburb 1] she asked God whether she should remain a Christian or convert to Catholicism. Her boyfriend recovered from his chest pain the next day. The applicant took this as a sign and converted. This took place in June or July 2012.

18. The applicant also told the delegate that when she returned to China in December 2014 she attended church with her cousin. One of the friends from church, [Ms A], invited the applicant and her cousin to her home as [Ms A]’s mother did not believe in God. The applicant and her cousin went. The mother was in bed sick. They started praying for her. They told [Ms A]’s mother that Jesus died and suffered for us and we should change for him. She kept praying until ‘finally God opened her heart’. The applicant gave [Ms A]’s mother some information and pamphlets which she had carried from Australia. The pamphlets contained ideas from priests and personal experiences from church brothers and sisters. After the applicant returned to Australia [Ms A]’s mother recovered from her ailment and asked to be taken to the church. The applicant was asked about [Ms A]’s denomination. She indicated that her cousin and [Ms A] were both Christian (not Roman Catholics) however [Ms A] and her cousin were not against Catholics. She was asked then how the cousin came to the attention of the authorities if she was not in fact Roman Catholic. The applicant claimed that her cousin went out to evangelise and it had been reported by people who had seen her praying and using the voice of God. She was arrested and interrogated. She had heard about what happened to her cousin but only had a rough idea of what had taken place. She claimed that her cousin was detained for 48 hours and questioned in relation to where she had evangelised and who had accompanied her. She was however released because the police had no evidence. The applicant claimed to have been in contact with her cousin several times since her release and her cousin had not had any other encounters with the police since her incarceration.

19. The delegate found it unlikely that the applicant’s cousin would have been detained for only 2 days and released if it was the case that she was caught evangelising. The delegate referred to country information which indicates that those who proselytise are subjected to harsh penalties, and often placed under surveillance after their release[1]. The delegate also formed the view that if the applicant’s cousin had in fact given the applicant’s name to the authorities, and the applicant’s parents were questioned as a result, it is likely that a summons would have been issued for the applicant. The delegate recorded that when the applicant was asked about this she told the delegate that no warrant or summons had been issued for her by the police. The delegate did not accept that the applicant’s cousin was caught evangelising, or that the applicant was implicated by her cousin and, in that way, came to the adverse attention of the authorities.

    [1] “China: No end in sight - Torture and forced confessions in China", Amnesty International, 11 November 2015, CISEC96CF13851; "China Story Yearbook 2014: Shared Destiny", a new Press, Australian Centre on China in their World, 11 November 2015, CISE96C13853; "Civil Society Report Submitted to the Committee against Torture for its Review at the 56th Session of the fifth periodic report (CAT/C/CHN/5) by the Peoples Republic of China on its implementation of the Convention against Torture", Chinese Human Rights Defenders, 26 October 2015, CISEC96CF13868; "China (includes Tibet, Hong Kong, and Macau) - Country Reports on Human Rights Practices 2015", US Department of State, 13 April 2016, OGD95BE926167

20. The applicant also indicated that she had used the voice of God, a manner of speaking in which “you use your tongue so that Holy Spirits will be filled”. The applicant demonstrated by repeating multiple times a one syllable sound that the interpreter could not interpret. The applicant indicated that if one prays only with words, God may not hear it because that is merely a personal emotion, and that it is more devoted if one prays with their tongue. She had learnt this from the church in [Suburb 1].

21. When asked about her knowledge of the scriptures, the applicant was able to describe her favourite Bible story, about the lost sheep. She was able to list some of the Commandments. When asked what being Catholic meant to her, the applicant stated that she believes that God is the only God, he is the creator of everything and she believes in the father, son and Holy Spirit. She claimed that she will evangelise and tell stories from the holy book, distribute pamphlets with her church friends and inform people about Jesus’ love.

22. In relation to her husband’s religious practice, the applicant indicated that he was baptised as a child and went to an underground Roman Catholic Church in China, the location of which changed frequently so as to avoid detection by the authorities. She claimed that her husband had also evangelised and converted 2 or 3 classmates. She claimed that on one of her trips home she had attended a service at her husband’s church but the priest had not worn the “service costume” and after the service he was the first to leave.

23. With respect to her own evangelising the applicant claimed that she had been doing it for one or 2 months at train stations, accompanied by her husband. She will continue to do this if they return to China and as a result she and her husband will be arrested. When asked if she had done any evangelising in China, the applicant claimed she had done it with her cousin and her husband in the last few years. They distributed materials at schools but so far had not encountered any difficulty. She claimed that if she went back to China she would take pamphlets and download information from the Internet and hand it out in public places. She claimed that it was her job as a Christian to evangelise. She indicated that, of herself and her husband, she is the one who feels more strongly about proselytising.

24. Regarding her conversion to Catholicism, the applicant stated that her previous Christian baptism was recognised by the Catholic Church and she did not need to do it again. A mother had given her teachings to aid her conversion. At the time of the interview she had not yet made her confirmation. She provided evidence that her children had been baptised.

25. When asked why she could not return to China the applicant stated that in China the mass does not take place on Sundays but instead happens at short notice. There is no freedom and one has to practice in secret. In terms of differences between practices in Australia and China the applicant stated that in Australia, one may pray for the government, for everyone in the world and one is encouraged to evangelise. However one cannot preach in China. Also once a family church has more than 7 attendees the PSB will stop it. She stated that the patriotic church in China serves only the interests of the government and never criticises it, unlike churches in Australia. She claimed that if she goes back to China the police will know that she went to a family church and that she was evangelising with her cousin and as a result she will be arrested.

26. The delegate noted that the applicant’s description of her Catholic practice appeared to incorporate elements of Protestantism and other more obscure faiths. She was concerned that, by that time, the applicant had not been confirmed in the Catholic faith despite having claimed to have converted to Catholicism 4 years before the interview. She formed the view the applicant’s knowledge of Catholicism was lacking detail and vague. She accepted that the applicant may have had an interest in the Christian faith and may be a genuine Christian although she could not conclude what denomination. The delegate found for the purpose of the decision she accepted the applicant and her husband are Catholic. However she did not accept that the applicant had ever evangelised or that she would do so if she returned to China. As the applicant had indicated she was more passionate about evangelising than her husband, the delegate concluded he was also unlikely to evangelise if he returned to China.

27. The delegate noted that the country information indicates that the Chinese government is growing increasingly tolerant of so-called underground Christians due in part to the ever-growing numbers and the difficulty in restraining them but also because of the charitable work performed by the groups and the degree of stability they bring to the community. She noted that the country information indicated that the Chinese authorities only target those who are seen as leaders of the underground church or those who are politically active or publicly agitate in a way that is threatening to the government.[2]

    [2] "The other Chinese miracle: Great awakening shifts growth of global Christianity to the East", Association of religion database archives (ARDA), 1 December 2015, CISEC96CF14025; "China Bans Religion Among Its Retired Party Members, Officials", Radio Free Asia, 5 February 2016, CX6A26A6E1033; "2014 Report on International Religious Freedom - China", US Department of State, 14 October 2015; "Why is Christianity growing so quickly in mainland China?", Catholic News Agency, 17 August 2015; "China crackdown on cults targets house churches", USA News, 5 August 2015; "Congressional-Executive Commission on China Annual Report 2015", Congressional Executive Commission on China, 8 October 2015,CISEC96CF13676

28. The delegate noted that aside from the claim involving the applicant’s mother when the applicant was aged [age], 15 years before the interview, the applicant’s parents have been able to attend the family church unmolested in the years since. She noted that the applicant had not experienced any difficulty in attending church each time she returned to China, most recently at the end of 2014, and nor has her husband when he goes home to visit family. She noted the applicant’s own testimony, that underground churches are accepted as long as they do not exceed a certain number of parishioners. She observed that this accords with the available country information. She formed the view that the applicant and her husband would be able to attend family church safely if they choose not to worship at the state sanctioned church in China.

29. The applicant provided a letter from [Mr B] from [Church 3] dated [January] 2019 stating the first and second named applicants are members of the community and have been since November 2012. She also provided a letter from [Father C] dated [February] 2019 stating that while he had agreed to attend the hearing he was unavailable as he would be celebrating the mass at [an] immigration detention centre at the same time. In his written submission he states that the first and second named applicants told him they commenced attending [Church 2] in November 2012. He witnessed their marriage and baptised their daughter on [date].

30. The applicant provided a letter of support from [Ms D] dated [February] 2019 stating that she is a leader of [Church 3] and has known the couple since 2012 as they attend Sunday mass on a frequent basis. She is of the view they are devoted Catholics and play an active role in spreading the gospel. She confirmed the third named applicant was baptised in the church in [year]. She is of the view they will not be safe in China because they belong to the underground church. She refers to reports of destruction and desecration of Catholic churches and shrines in China.

1. The applicant also provided a letter from [Mr E], a leader of the Mandarin speaking group,  the [Church 4] prayer group in [Suburb 1]. He understands that the first and second named applicants belonged to underground churches of their respective denominations in China. He has heard that while the underground Catholic Church in China is recognised by the Vatican, it is not approved by the Chinese Communist government and its members are in danger of persecution and not free to practice their faith. He stated that the first and second named applicants attend [Church 4] prayer group every Friday and have done so since 2015. He claims they play an active role in spreading the gospel. He claims that they practice their faith further by ensuring that their children went through the Roman Catholic sacrament of baptism soon after their birth.

2. The applicant provided a copy of her Certificate of Confirmation recording that the applicant was confirmed on 29 May 2016 at [Church 2]. She also provided evidence that her 2 children had been baptised at [Church 2] soon after their birth. The second named applicant provided his Certificate of Baptism dated [in] May 2014 indicating he was baptised in China on [date] by the Catholic Fuzhou [Parish] priest.

3. The applicant provided photographic evidence of the applicant’s attendance in various church settings.

   Hearing on 7 March 2019

4. The applicants attended a hearing on 7 March 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages. The applicants’ representative was also present at the hearing. The following is a summary of the evidence provided at the hearing.

5. The Tribunal asked the applicant about her family circumstances. She has one sister who resides with the applicants in Australia as a permanent resident, having been granted a skilled visa. Her parents and [sibling] live at the same address in [a town in] Fuqing City where the applicant grew up. Her father works as [Occupation 1]. Her mother works [as Occupation 2].

6. The Tribunal asked the applicant why she travelled to Australia. She came here to study for her higher school certificate. She was going to complete a [Course 1] qualification but did not finish the course. She then studied [Course 2] and [Course 3]. Her intention was to get a skilled migration visa however she did not apply for one because when she was halfway through her [Course 2] it was cancelled. Also the law changed and so she could not apply for a skilled visa with her [Course 3] qualification. She last studied in 2015. She did not complete [Course 1] because it was too difficult and costly.

7. The Tribunal asked the applicant why she fears returning to China. She indicated she has attended the Roman Catholic Church and she is afraid she will be arrested if she returns to China. The Tribunal asked if there was any other reason why she fears returning to China. She indicated that now she has been touched by Jesus Christ, if she goes back she wants to spread the gospel.

8. The Tribunal asked the applicant when she first feared the authorities in China. She indicated it was when she was child because she witnessed what happened to her family. The Tribunal noted that the applicant has returned to China on occasions since first coming to Australia to study which might suggest she is not fearful in China. The applicant acknowledged that she has returned to China but indicated that she always intended to return to Australia because there is more freedom here. The Tribunal asked if the applicant was fearful while she was visiting China. She confirmed that she was fearful and indicated that that was the reason why she only stayed for 2 or 3 weeks. When asked if she took particular care while she was visiting China to avoid the authorities she indicated that she was very careful during those visits because she wanted to return to Australia.

9. The Tribunal asked the applicant about her religious background. She indicated that she first became a Christian when she went to church as a child but her attendance was sporadic. When she started high school she did not attend church that often. She came to Australia in 2006 and was baptised at [Church 1]. At that stage her uncle was not yet a pastor. She could not remember when he became a pastor. The Tribunal asked if, when she was contemplating converting to Catholicism, her uncle wanted her to stay in his church. She indicated that he did but her husband wanted them to marry in the Catholic Church. She thought that she and husband should attend the same church.

10. The Tribunal asked the applicant for further information about her religious practice in China. She indicated that when she went back to China she attended the family church and the underground church. She indicated that when she grew up she was afraid to go to the church because the Chinese government had a rule that students could not have a religious belief.  The Tribunal noted that the applicant’s oral evidence was somewhat different to the information she gave to the delegate, as recorded in the delegate’s decision record, when she indicated that she went to church every week with her parents and she personally experienced no trouble before she came to Australia except for having no regular time or place to attend. The applicant indicated that she had gone to church services weekly when she was younger because she was taken by her parents or neighbours. She claimed that when she was aged [age] her mother was arrested because she told the pastor to escape. Her mother was fined and summons to attend an interview and answer questions.

11. The Tribunal asked about the size of the applicant’s family church in China. She indicated that sometimes there was a dozen, or more than 20, attending the church. She acknowledged that it was a small family church. She indicated that even in a congregation of 5 to 7 people was considered a church as long as it is in the name of Jesus Christ.

12. The Tribunal asked the applicant about her conversion to Catholicism. She indicated she converted 15 days after Easter in 2016. She then corrected her evidence and indicated that it was in 2012 or 2013; 2016 was the time of her witness. She converted because, during that time, she believes she was touched by the Holy Spirit. The Tribunal noted that the applicant had told the delegate that she converted because she had gone to the [Suburb 1] Church.  She acknowledged she went to [a church] at [Suburb 1], [Church 4].

13. The Tribunal noted that [Mr E] had indicated that he first met the applicant in 2012 at [Church 2] and that she started going to [the Church 4] prayer group in 2015. The Tribunal noted that this evidence is somewhat different to the applicant’s evidence to the delegate and in writing that she converted to Christianity after her husband took her to a church in [Suburb 1]. The applicant indicated in 2012 she was attending a Bible study group at [Church 2] and she met him there. The Tribunal asked if the applicant first went to [Church 2], before [Church 4]. She indicated that that was the case. The Tribunal noted that this was different to her earlier evidence indicating that she converted to Catholicism after her husband took her to the church in [Suburb 1]. The applicant indicated she first went to the services at [Church 2], on Mother’s Day in May 2012. The Tribunal noted that [Mr E] had said that he first met the applicant at [Church 2] in November 2012. The applicant indicated that when she first went to [Church 2] and that was the beginning of her conversion to Catholicism.

14. The Tribunal asked the applicant where she met her husband. She indicated she met her husband in [suburb]. The Tribunal asked if she was already going to [Church 2] at that stage and she indicated she was not. She was not sure if her husband was already going to [Church 2] at that stage. When she first met him he invited her to [Church 2]. The Tribunal noted that this was different to her earlier evidence that he invited her to go to the church in [Suburb 1]. She indicated that the [Suburb 1] church only held mass on the first Friday of every month whereas at [Church 2] the mass was held every Sunday. The Tribunal asked the applicant why she did not mention to the delegate that her first exposure to Catholicism was at [Church 2], before her husband took her to the [Suburb 1] Church. The applicant claimed that she did mention [Church 2] to the delegate. The Tribunal noted that her evidence to the delegate was that her first exposure to Catholicism was at [Suburb 1]. It noted that she had indicated the boyfriend was experiencing chest pain, had consulted doctors and had scans. She was praying to God and attending the service of [Suburb 1] and asking God whether she should convert to Catholicism and ‘my boyfriend recovered from his chest pain the next day” and she took this as a sign and converted to Catholicism in June or July 2012, before she goes to [Church 2]. The Tribunal noted however that the applicant is now claiming she went to [Church 2] before she went [Suburb 1]. The Tribunal asked the applicant to clarify which Catholic institution she first went to. The applicant indicated she first went to [Church 2] but at the same time a friend, her husband’s workmate, invited her to [Suburb 1].

15. The Tribunal noted that [Mr E] had indicated that she started going to the prayer group at [Suburb 1] in 2015 and this appeared to be somewhat different to her oral evidence to the Tribunal. The applicant indicated that [Mr E] was on business trips so in the beginning he did not notice her. The Tribunal noted that the applicant is suggesting that [Mr E] did not notice her for 3 years. The applicant indicated that [Mr E] was sometimes in [Country 1] or [Country 2]. The Tribunal noted however that [Mr E] indicated that he first met her in 2012. It questioned why he would not know about her attendance at prayer group until 2015. She indicated that she attended an evening session at 8 PM.  The Tribunal asked when she learned about the Bible study group. She did not know about the Bible study group until the end of 2014, beginning of 2015 because there were more English-speaking people at [Suburb 1]. The Tribunal noted that the centre at [Suburb 1] is called [specified name] and where the Australian Catholic Chinese community is based. It questioned whether most of the attendees at the [centre] would speak English. She claimed that there were more English-speaking people at the [Suburb 1] centre. She indicated that sometimes the priest conducts the service in English.

16. The Tribunal asked the applicant about the difference between Protestant Christians and Roman Catholics in Australia. The applicant indicated that Protestants do not worship Mary but the Catholics do. The Tribunal asked why this is important to the applicant. She indicated that when she attended 2 different churches, the Catholics pray with the Rosary in memory of Mary and she prays for us. In the Protestant church Mary is only the mother of Jesus Christ. Protestants are not required to worship her. In the Protestant church one prays to the father. There is no confession in the Protestant church.

17. The Tribunal asked the applicant about the similarities between Roman Catholics and the registered church in China. The applicant indicated that the masses are the same but they are different in nature. The registered church worships Mary but the priority is patriotism. The priests in the registered church are not recognised by the church, only the government. They are not equipped with the mission of forgiveness.

18. The Tribunal asked the applicant about her husband’s Catholic practice. She indicated that he commenced the practice when he was a child and he was baptised. She believes he was able to practice his religion secretly in China. She is not sure if he came into contact with the police in relation to his practice but had heard that a church had been damaged or destroyed. She thought his congregation was about 200 to 300 Catholics. The Tribunal asked whether her husband participated in any other religious practice. She thought he spread leaflets and visited the sick. He also assisted in the church by moving chairs and tables, cleaning and talking about the gospel. He was [age] when he came to Australia.  The Tribunal asked the applicant why she was the primary visa applicant given her husband had a Roman Catholic history in China and she did not. She indicated it was because he was not good at talking.

19. The Tribunal noted that the applicant’s oral evidence regarding the description of her husband’s Catholic practice was somewhat different to the written claims that he evangelised and converted others to Catholicism. The applicant indicated that her husband preached the gospel as he was equipped with this capacity from God. She indicated that Moses was not good at speaking and yet he was selected by God.

20. The Tribunal asked the applicant about her own baptism and why she had not sought protection when she was baptised. She indicated that in the beginning she did not know about protection. She claims she only learned about it later in about 2015.

21. The Tribunal asked the applicant when her parents were last in contact with the police in relation to their religious practice. She indicated that in 2015 her mother was arrested. The police came to their home. The Tribunal asked why she was arrested. She indicated it was because she was a member of an underground church.

22. The Tribunal noted that the applicant had indicated that when she visited China in December 2014 she intended to return to Australia. She confirmed that this was correct. The Tribunal also noted that she had given oral evidence that she was careful when she last visited to China because she intended to return to Australia. It noted that this was inconsistent with her other evidence that she took pamphlets back to China and she and her cousin distributed gospel pamphlets in a house church, and in schools. The applicant indicated that a friend told her someone was sick so she went to pray for her. She indicated that she only stayed in China for a short period and was only visiting her friend’s sick mother for 20 or 30 minutes and only handed her pamphlets.

23. The Tribunal noted that the delegate did not accept the applicant’s evidence about her cousin’s detention as, having considered the country information, she formed the view that it was unlikely she would receive only 2 days’ detention for evangelising. The Tribunal asked the applicant if she had any comment to make on that concern. The applicant claimed that if the government thinks a person is participating in illegal activity they will detain them. She is from a small place and everyone knows everyone else.

24. The Tribunal noted that the delegate did not accept that the applicant had ever evangelised or that she would evangelise if she returned to China. The applicant claimed that she knows God and the salvation of Jesus Christ is to save people. She claimed that one has to go and spread the gospel as the Bible says the end of the world will come soon. She claimed she wants to save people.

25. The Tribunal noted that the delegate recorded that the applicant had told her that no warrant was issued for the applicant’s arrest in China. The Tribunal asked, in those circumstances, whether the applicant genuinely feared being arrested if she returned to China. The applicant then claimed that the reason the police discovered her cousin was not the pamphlets but because she was speaking in tongues.

26. The Tribunal noted that the delegate doubted the applicant’s evidence about her faith. She noted that it appears that the applicant has mixed up elements of a range of Christian faiths and found that speaking in tongues is not a Catholic practice. The applicant claimed that the police found out that she was speaking in tongues. She asserted that it is part of the Catholic practice. She calls the name Abba so the Holy Spirit can come to her. She does this at [Suburb 1]. She does not do this at [Church 2] where there is only a mass and Bible reading. She goes to [Suburb 1] on Friday nights. The Tribunal asked if Roman Catholics attending underground church in China speak in tongues. She indicated she did not know.

27. The Tribunal asked if [Father C] at [Church 2] knows that she attends [Suburb 1] [Church 4] and speaks in tongues. She indicated she has not seen him there.

28. The Tribunal asked the applicant why she delayed making an application for protection until March 2015, if it was the case that she had been attending a Catholic church since 2012. It explained that it may form the view the delay in making the protection visa application, and her return to China in 2014, suggest that she is not genuinely fearful of persecution or harm in China. The applicant claimed that she did not know about protection until 2015.

29. The Tribunal asked the applicant if she was aware of any recent developments between the Chinese Catholic Church and the Vatican. It noted that there is country information indicating the relationship is improving. For example Chinese Catholic bishops have visited the Vatican and there is a written agreement between China and the Pope.[3] The applicant indicated she had not heard about this. She does not know about any recent developments. She claimed that the Chinese do not recognise Roman Catholics.

    [3] accessed 25 January 2019

30. The Tribunal noted the country information indicates that the local authorities tolerate some underground religious practice so long as the church does not have foreign affiliations, or become too large.[4] The Tribunal also noted that the applicants do not appear to be a church leader so it may form the view on the basis of the country information that they are able to attend an underground church in China without fear of persecution. The Tribunal also noted that country information indicates there are about 12 million Catholics and 7 million underground Catholics practising in China with about 1 million underground Catholics practising in Fijian[5]. It asked why the applicant would not be able to practice Catholicism if she returned to China. The applicant indicated that as long as a person is Communist he is not a genuine Catholic; he is an atheist. Regarding the underground church the applicant noted that in Zhejiang Province the authorities are cracking down on underground Catholics. The Tribunal noted that the applicant is from Fujian Province. The applicant indicated that even in Fujian Province if they think you are unlawful they will arrest you.

    [4] DFAT Country Information Report Peoples Republic of China, 21 December 2017: the State Administration for Religious Affairs permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst register Christian institutions, has led to the proliferation of sizable unregistered wrist and communities in China… These bodies are private religious forums that adherents create in their own homes or other places of worship. "House" or "underground" (Roman Catholic) 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 scrutinise churches with foreign affiliations, or those that develop large or influential local networks…

    [5] ibid

31. The Tribunal asked whether the applicant had attended Catholic Church in Australia to strengthen her protection claims. The applicant indicated that she did not attend the Catholic Church for that reason; she likes to attend in Australia because it is a country of religious freedom. She wants to work for God and wants her children to study at a Catholic school and know Jesus Christ. She wants her children to grow up peacefully and joyfully in the way of Christ. Also the authorities in China are opposed to preaching. She referred to a neighbour’s son being a drug addict because he did not believe in Christ.

1. The Tribunal asked the applicant if she had any other evidence to give as to why she fears returning to China. She indicated that there is no freedom of religion in China and no one knows if they will be arrested.

2. The Tribunal then took oral evidence from the second named applicant. He indicated that he started his Roman Catholic practice very soon after he was born. He was baptised in [year] in his hometown [in] Fujian Province. When asked to describe his Roman Catholic practice in China he indicated he went to church every night. He was not sure of the size of his church congregation but estimated it was between 100 and 150. There was not a dedicated church building because the followers did not have much money but his parents contributed to the use of a small building. Not all church activities were held in that building. From the age of about [age] he attended a group at a neighbour’s house. He went to Mass regularly. He attended the Corpus Christi procession secretly. He sang hymns in a choir. He attended a retreat in China where the attendees secretly prayed and listened to the sermon.

3. The Tribunal asked the second named applicant about his first contact with the Catholic Church in Australia. He indicated at first he could not distinguish between Protestants and Catholics in Australia. He went to a church in [Sydney] but the mass was held in English. He first went to [Church 2] in 2012. He met his wife in May 2012. She was already attending [Church 1]. He wanted her to change from [Church 1] to Roman Catholic because if they stayed together he needed to get married in the Catholic faith. If he told his family he married outside the Catholic Church they would be unhappy.

4. The Tribunal asked the second named applicant about his Catholic practice in Australia. He indicated that he attends Mass every week at [Church 2] and [Church 4] [Suburb 1] where they speak in tongues. They do not speak in tongues in China. The Tribunal asked where he would practice if you return to China. He indicated he would go to the church attended by his parents if he stays in the same place. However they might move. He indicated that if he returned to China he would spread the gospel as he does here. The Tribunal asked if he had done that in China before coming to Australia. He acknowledged that he had not really because he was young. However he invited classmates to attend his group.

5. The second named applicant confirmed he had no difficulty departing China. The Tribunal noted that this suggests he is not as of adverse interest to the authorities. The second named applicant disagreed with the Tribunal. He claimed that if you are an underground Catholic you are opposed to the Communist Party.

6. With respect to the country information discussed with the applicant, the second named applicant agreed that there are about 1 million practising Roman Catholics in Fujian and about 7 million in China. However he noted that priests cannot criticise the Chinese government. When they attend the church at [Suburb 2] they pray for the Chinese Prime Minister so that he can correct his decisions. However in China priests cannot pray for him.

7. The second named applicant claimed that if they return to China they would have to attend the official Catholic Church. The underground church is tolerated in Fujian but last year in Changle city the police dismantled a church altar. The Tribunal questioned whether that was persecution. He indicated that they may not arrest underground church followers today but they might do so in the future. He also argued that the country information and news does not reflect the real situation in China. He referred to his family’s practice [at a location] where there are many members. He remembers as a child during the mass where the priest was wearing the priest’s clothes. One of his uncles rushed in and asked the priest to take it off and hide among the people. The mass was about to start and the police came in and arrested some people. Also before the mass the confession has to be held in someone’s house, not in the church. In China the mass is not done in a public way. It is hidden to avoid government criticism.

8. The Tribunal noted that the second named applicant was articulate and persuasive in his oral evidence in relation to his Roman Catholic practice. It asked why he did not attend the interview of the delegate. He indicated that he was looking after their child.

9. The Tribunal asked the applicants if they had any other evidence to give before a closed hearing. They indicated they had no further evidence to give to the Tribunal.

10. After the hearing the applicant provided the following information:

    a.an article from The Tablet, 17 February 2018 indicating a group of 15 leading Catholics published an open letter to express their dismay about reports that the Vatican could soon reach a deal with China’s Communist government. The deal is expected to give both Beijing and the Holy See a role in the appointment of bishops. The 15 Catholics argued that the Chinese government should play no role in the selection of bishops. Another article reports that an 88-year-old underground bishop was asked to step down by the Vatican in order to facilitate an agreement with Beijing. The article indicates that every priest in China has been trained in seminaries that are state controlled. It notes that Vatican negotiators believe that a deal with Beijing would help mend the church in China’s internal divisions.

    b.An article from the Sunday Examiner dated 29 October 2017 regarding Bishop James Su Zhimin who disappeared over 20 years ago and is believed to be held by the Chinese authorities. The article also concerns the dialogue between the church in Beijing and includes a comment by a project officer working on the justice and peace commission indicating that the authorities continue to take away underground clergy at their discretion.

    c.An article from the Sunday Examiner dated 19 November 2017 indicating that the body of a priest, who died mysteriously, was found in a river. At the Mass celebrated for the priest, the Cardinal reminded the gathering that, while the Vatican and Beijing are in dialogue, the Vatican must remain silent over events in China.

    d.A letter from [Father C] dated 17 March 2019 indicating that the applicant and her husband are both members of [Church 3]. He believes they are genuine Catholics. He has been advised that the Tribunal asked about their attendance at the Catholic mass and a charismatic prayer meeting at [Suburb 1]. He explained that the mass is an obligation for a Catholic person however the charismatic prayer meeting is an optimal extra which many Catholics find helpful.

    e.A letter from [Mr F], a senior member of [Church 4] since 2003 indicating that the applicant and her husband are active members of [Church 4] who he first met at regular prayer group gatherings in mid-2012. They were both open to this style of prayer. The second named applicant experienced the healing power of Jesus when he prayed. Since then the couple participate in Friday night gatherings and retreats. He believes they are fervent Catholics. He understands the second named applicant comes from an old traditional Catholic family in China and was brought up a Catholic. He believes the first named applicant’s Catholic faith has grown since her conversion. She received the sacrament of confirmation in May 2016.

    f.An order of service dated [January] 2019 for [Church 3].

    g.Certificate of baptism dated [November] 2010 however name of the person baptised is in Mandarin. The Tribunal understands this is the baptism certificate of the applicant’s [sister].

    CRITERIA FOR A PROTECTION VISA

11. 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.

12. 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.

13. 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).

14. 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.  

15. 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

16. 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

    Nationality

17. The Tribunal finds that the first and second applicants are citizens of China, based on their Chinese passports and oral evidence, and will assess the claims on this basis. As the third named applicant is the child of Chinese nationals, the Tribunal is satisfied that he is also a citizen of China. The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that the applicants have a right to enter and reside in any country other than their country of nationality.

    Independent country information

18. DFAT’s Country Information Report: People’s Republic of China, dated 21 December 2017 states;

    China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century.

    The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.

    In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.

    …

    Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.

    The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureau, have significant discretion in implementing the regulations.

    Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational. Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.

    Unregistered religious organisations are illegal and vulnerable to punitive official action. Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.

    In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.

    Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention …

    In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.

    Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation.

    Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families … DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

    Catholics
    The CCPA has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to publicly pledge support for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.

    In 2016 the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA.

    In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. DFAT understands this is no longer required in areas where the Catholic Church has built trust with local officials over time. Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

1. The DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China, dated 3 March 2015, presents the following information about unauthorised Catholic churches in China:

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

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

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

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

2. The applicant has made claims to fear persecution in China for the following reasons. She claims that she was born into a Christian family and her mother was punished for organising house church. She also subsequently claimed that both of her parents were arrested and punished. She claims that, while she practised as a Christian in China, she converted to Roman Catholicism in Australia having met her husband. She claims she is committed to a lifetime of preaching and has converted classmates and friends to Christianity. She claims that when she most recently visited China in 2014 she took Christian material. She claims she preached the gospel and converted many. She claims she and her cousin visited a sick mother of a friend and prayed for her and as a consequence the mother now goes to church.  She claims that after she visited China in 2014 when she and her cousin distributed gospel material at a house church, her cousin was summonsed and there was an enquiry into her illegal preaching. She claims that subsequently her parents were investigated. She claims she fears she will be arrested if she returns to China.  She claims that she wants to preach in China but it is impossible to do so safely. She claims she wants to spread the word of Jesus if she returns. She claimed she attends both [Church 2], a Roman Catholic church and [Church 4], a charismatic prayer group in [Suburb 1]. She claims she speaks in tongues.

3. It has also been claimed that the second named applicant was raised in a Catholic family in China and was baptised in [year] as a baby. He continued to attend underground church in China until he travelled to Australia as the holder of a student visa. Since he has been in Australia he has also attended both [Church 2] and the [Church 4] charismatic prayer group in [Suburb 1]. It has been claimed that he has also converted classmates to Catholicism.

4. The applicant has provided supporting statements from various people including [Father C], [Mr B], [Ms D], [Mr E] and [Mr F]. The applicant has provided baptismal certificates for all family members and her confirmation and marriage certificates.

5. Overall the Tribunal is satisfied that the applicant, having been baptised in her uncle’s [Church 1], converted to Catholicism after she met her then boyfriend, the second named applicant. The Tribunal is satisfied that both applicants have been attending [Church 2] and the [Church 4] prayer group for several years. It is satisfied that they have been attending [Church 2] probably since 2012. [Mr E] indicated that he first met the applicants at [Church 4] in 2015. The applicant has since provided a statement from [Mr F] that she was attending regular prayer group gatherings at [Church 4] since 2012. While there are inconsistencies in the evidence about when the applicant converted to Catholicism and when she started attending [Church 4], on the basis of the witness’ statement, the Tribunal is prepared to accept that the first and second named applicants have been attending the [Church 4] prayer group since 2012. It accepts that all of the applicants have been baptised, the second and third named applicant in the Catholic Church. It accepts that the first and second named applicants have also had their second child baptised in the Catholic Church. It accepts she is now confirmed and married in the Catholic Church. On the basis of this information the Tribunal is satisfied that the applicants are Roman Catholics.

6. The Tribunal has considered the applicant’s claims that when she returned to China in 2014 she distributed Christian material, distributed gospel pamphlets in a house church and provided information and pamphlets to [Ms A]’s mother. For the following reasons the Tribunal does not accept any of these claims. First, the Tribunal notes that the particulars of these claims have changed over time. In her written application she asserted that when she returned to China in 2014 she, along with her cousin distributed gospel pamphlets in a house church. However in her oral evidence to the delegate as recorded in the delegate’s decision record, provided to the Tribunal by the applicant, she indicated that in 2014 [Ms A], a friend from the church, invited the applicant and her cousin home because [Ms A]’s mother did not believe in God. She told the delegate that she gave [Ms A]’s mother some information and pamphlets which she had carried from Australia. She claimed to the delegate that she, her cousin and her husband had distributed material in schools.  When the Tribunal raised with the applicant at the hearing that this evidence was somewhat different, the applicant then indicated she only stayed in China for a short period and was only visiting her friend’s sick mother for 20 or 30 minutes and only handed her pamphlets. This does not explain the inconsistencies in her evidence. Secondly the Tribunal notes that when it asked her if she was careful during her visits to China, given she wished to return to Australia, she indicated that she had been careful. The Tribunal is not satisfied that, if the applicant was being careful in China so as to ensure her ability to return to Australia, she would have distributed Christian information. It takes into account the witnesses’ views that the applicants will play an active role in spreading the gospel in China. However, considering all of the evidence, the Tribunal is of the view that the applicant has manufactured her evidence about proselytising in China to strengthen her claim that if she returned to China she would proselytise. On this basis the Tribunal is not satisfied the applicant would proselytise if she returned to China. It does not accept she would take pamphlets back to China and download information from the internet to hand out in public places.

7. The Tribunal also finds the applicant’s evidence regarding her cousin’s arrest and detention to be inconsistent with the country information. It has considered the information referred to by the delegate and has formed the view that if the cousin had been arrested and detained for evangelising and praying in public, it is unlikely that she would have been held for only 48 hours. The Tribunal also finds that the applicant demonstrated a propensity to change her evidence when it was drawn to her attention that it was problematic. For example while previously claiming the cousin was arrested because she was proselytising, she told the Tribunal that the cousin came to the attention of police because she was speaking in tongues.  Considered overall the Tribunal is not satisfied that the applicant’s cousin was proselytising, arrested and detained. Nor is it satisfied that the applicant’s cousin implicated the applicant or that her parents were investigated as a consequence. The Tribunal is of the view that the applicant has manufactured this evidence.

8. The Tribunal also notes the applicant’s evidence regarding her church attendance in China is inconsistent. On the one hand she told the delegate that she attended church with her parents on a weekly basis. However she indicated to the Tribunal that she was afraid to attend church in China as a student. The Tribunal also notes that in her written application and to the delegate she indicated that both her parents had been arrested in relation to the Christian practice. However in her oral evidence to the Tribunal she only referred to her mother’s arrest and she did not repeat that her mother was incarcerated and beaten. Overall the Tribunal is not satisfied the applicant’s evidence regarding contact between her family members and the authorities in China is reliable. It does not accept her mother was arrested, incarcerated and beaten when the applicant was [age] years old. It does not accept her parents have been arrested and are constantly called and questioned by the police. The Tribunal is of the view that the applicant has manufactured this evidence to bolster her claims that she fears coming into contact with the authorities if she practices her religion in China.

9. The Tribunal considered the evidence regarding the second named applicant’s religious practice in China. It considered his oral evidence to be more persuasive and reliable than that of the applicant. On the basis of the evidence before it the Tribunal is satisfied that the second named applicant probably did talk to classmates about his Catholic practice and going to his church. However there is no evidence to suggest this resulted in the second named applicant suffering any harm. It accepts that he and his family practised as underground Catholics in Fujian province. There is no evidence to suggest that in doing so the applicant drew the adverse attention from the authorities. This is consistent with the country information which indicates that there are millions of underground Catholics in China, many of whom practice in Fujian province. It has been asserted that the second named applicant will want to proselytise if he returns to China. Apart from the applicant’s assertion to the delegate that she and husband had been proselytising at the train station for one or 2 months before the delegate’s interview, and general claims that they have proselytised, the Tribunal does not consider that there is persuasive evidence to indicate that the second named applicant will proselytise in China if he returns. As noted the Tribunal has accepted that he talked classmates about going to church but he did this without any adverse consequences. Given that there are a significant number of Roman Catholics practising in Fujian province, it is not surprising that the second named applicant has in the past discussed his religion with classmates.

10. The Tribunal has considered the evidence that the applicants speak in tongues. This is a practice that they have learned from the charismatic prayer group, [Church 4] [Suburb 1]. The Tribunal accepts that both applicants have undertaken this practice. However there is no evidence before the Tribunal to suggest that speaking in tongues is a practice undertaken by Roman Catholics in China. The Tribunal is not satisfied the applicants will continue to speak in tongues in China even if they attend an underground Catholic Church.

11. The applicants have both indicated that they do not wish to attend the patriotic church in China. The applicants gave some explanation for why they did not want to do this. The Tribunal notes and accepts that the second named applicant is from an underground Catholic Church family with a long history of practising as Roman Catholics. In these circumstances it accepts that he would not want to attend the patriotic church if he returned to China. The Tribunal has considered whether the applicants will be able to continue practising as Roman Catholics if they returned to China. In doing so it has considered Fujian province to be the location to which the applicants would return. Having regard to the country information the Tribunal accepts that the applicants may experience some restriction in freedom to practice if they return. It accepts that from time to time the location of the place of worship may need to change as indicated by the second named applicant’s evidence. It accepts that from time to time the priest may need to avoid coming into contact with the authorities. This is consistent with the country information which indicates that leaders of the unregistered churches are subject to greater scrutiny and harassment than ordinary worshippers. There is nothing before the Tribunal to indicate that any underground church in Fujian province that the applicants may attend will have foreign affiliations or have large and influential local networks. There is nothing to suggest that the applicants will organise or participate in protest activity on behalf of their congregations. The Tribunal is not satisfied they will be church leaders. While the Tribunal accepts that the applicants may face a low risk of societal discrimination as underground Catholics and that from time to time there may be officially sanctioned harassment or discrimination from the authorities, the Tribunal is of the view the applicants will be able to participate in underground church activities in Fujian province without being seriously harmed in the reasonably foreseeable future.

12. The Tribunal has taken into account the country information provided to it after the hearing in relation to the disappearance of a bishop and the mysterious death of a priest. It accepts that underground Catholics of prominence are at higher risk of harassment and persecution by the authorities. However there is nothing to suggest that the applicant or the second named applicant intend to become priests in the church.

13. The Tribunal discussed with the applicants the country information indicating that the relationship between Beijing and the Vatican has improved and that there has been an agreement between the Chinese Communist government and the Church. The Tribunal has taken into account information provided after the hearing indicating that 15 leading Catholics are opposed to the agreement arguing that the Chinese government should play no role in the selection of bishops. The Tribunal accepts that there is some conflict within the Catholic community about the negotiations between Beijing and the Roman Catholic Church. However it is not satisfied that those negotiations or any conflict that arises within the church community as a consequence will result in the applicants being harmed in the foreseeable future if they returned to China and practise in Fujian proviince. The Tribunal accepts that there are reports of unauthorised church demolitions, desecration of shrines and that the altar was destroyed at a church in Changle city. It accepts that underground Catholics in China face challenges and disruptions in pursuing their Roman Catholic practice. However it is not satisfied that this is serious harm or will result in any of the applicants being seriously harmed.

14. The Tribunal accepts that the applicant and second named applicant had their children baptised in Australia as Roman Catholics. It notes that the applicant has indicated she wishes for her children to study at a Catholic school and know Jesus Christ. The Tribunal is satisfied that the applicant and second named applicant will be able to impart their beliefs about Jesus Christ to their children if they returned to China. While their children may not be able to study at a Catholic school, the Tribunal is satisfied that the children will be able to attend school and receive an education. It is not satisfied the inability to attend a Catholic school will result in any of the applicants suffering serious harm.

15. The Tribunal notes that despite practising Catholicism in Australia since 2012 the applicants did not apply for protection until 2015. It also notes that they returned to China on occasions and attended house church and underground church while there. The Tribunal is of the view these circumstances cast doubt on their claims to fear harm in China because of their religion.  The Tribunal has considered the applicant’s claim that they did not apply for protection until 2015 because she did not know about it until then. The Tribunal finds this disingenuous given the applicants had been in attendance at [Church 2] since 2012 where there is a large Chinese community, many of whom over the years have applied for protection. It is not satisfied the applicants were not aware of protection visas. It has formed the view the applicants did not apply for protection earlier and returned to China on occasions and practised their religion while there, because they do not fear harm as underground Catholics in China.

16. Having considered all of the evidence before it the Tribunal is not satisfied that either the applicant or the second named applicant will be seriously harmed as a consequence of their participation in the underground Catholic Church in the foreseeable future if they return to China and practice as Roman Catholics in the Fujian Province. Nor is it satisfied the third named applicant will suffer serious harm if his parents practice as Roman Catholics in Fujian province. The Tribunal is not satisfied that any of the applicants have a well-founded fear of persecution for reasons of religion, or any other reason. It is not satisfied there is a real chance they would be persecuted for the reason of religion or any other reason if they return to China.

17. Accordingly the Tribunal is not satisfied any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

18. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the reasons already articulated, and having regard to the “real risk” test, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to China there is a real risk that any of the applicants will suffer significant harm. Therefore the Tribunal finds that none of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

19. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants protection visas.

    Denise Connolly
    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.

    …