1613658 (Refugee)

[2019] AATA 4801

1613658 (Refugee) [2019] AATA 4801 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613658

COUNTRY OF REFERENCE:                  China

MEMBER:Catherine Carney-Orsborn

DATE:22 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2019 at 3:16pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Yiguan Dao – political opinion – employment dispute – lack of evidence – inconsistent evidence – credibility issues – no real chance of serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth),Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 17 April 2015. The delegate refused to grant the visa on the basis that Australia does not have Protection obligations to the applicant.  

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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 themselves 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).

6. 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.  

7. 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

8. 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

   Background

9. The Tribunal has before it the Department’s file, the Tribunal file and the information provided to the Tribunal by the applicant.

10. The applicant provided a copy of the delegate’s decision with his application for review.

11. The applicant attended an interview with the delegate on 27 June 2016. The Tribunal has listened to an audio recording of the interview. The Tribunal is satisfied that the references in the delegate’s decision to the applicant’s evidence at this interview are accurate.

12. The information provided by the applicant in the application for Protection, as set out in the delegate’s decision and statutory declaration is summarised as follows;

13. The applicant was born in Fuqing, Fujian Province, China on [date].

    Education:

    ·      [School 1], Fuqing, [China];

    ·      [School 2], Fuqing, [China];

    ·      [School 3], Fuqing, [China];

    ·      [College 1], [City 1], January 2008 – May 2008;

    ·      [College 2], [City 1], September 2008 – November  2008; and

    ·     [Course],  [College 3], [Suburb 1], February 2009 – August 2009.

    Work Experience:

    ·     Odd jobs in Australia (not specified), February 2008 – December 2014; and

    ·     Unemployed since December 2014.

    Family members:

    ·      [father], in China;

    ·      [mother], in China; and

    ·     [Sibling] in China.

    He is in contact with relatives in China by telephone.

    Chronology

14.    [December] 2007	15.   Applicant arrived in Australia on TU 571 Student visa
16.   January 2008	17.   Applicant began studying at  [College 1]
18.    [January] 2008	19.   TU 571 Student visa extended till  [March] 2010
20.   May 2008	21.   Applicant finished studying at  [College 1]
22.   September 2008	23.   Applicant began studying at  [College 2]
24.   November 2008	25.   Applicant finished studying at  [College 2]
26.   February 2009	27.   Applicant began studying at  [College 3]
28.   August 2009	29.   Applicant finished studying at  [College 3]
30.    [March] 2010	31.   TU 571 Student visa ends
32.    [March] 2010	33.   Applicant becomes unlawful
34.    [April] 2015	35.   Applicant applies for XA-866 protection visa
36.    [April] 2015	37.   Applicant granted WC-030 bridging visa

1. The applicant provided the following documents which have been considered by the Tribunal.

2. Photos of the applicant’s activities in Australia, statutory declaration, decision record and a copy of his passport.  The applicant provided other documents such as a statement from a friend, a bank statement and rent receipts; those last documents relate to his application for a bridging visa with work rights and are not relevant to the claims for protection.

3. A summary of the claims in his statutory declaration is as follows;

4. The applicant’s father went to work in [Country 1] through [Named] Company in 2003, organised by a Mr [A’s] sister who worked in [a government department]. While the applicant’s father was there, a man called [Mr A] was in charge, who withheld pay and took the applicant’s father’s passport, and did the same to the other workers who came to [Country 1].

5. When the applicant’s father was still receiving pay, the applicant was sent to study in Australia, and arrived [in] December 2007. The applicant’s father stopped receiving pay in 2008, and the applicant eventually had to stop his studies due to this.

6. The applicant’s father and the other workers returned to China in 2011. They could not get their unpaid wages. In January 2012, they went to [the] Government to speak to Mr [A’s] sister. The workers were arrested and fined for an anti-government protest. The applicant’s father was [charged], and was tortured by the police. The applicant’s father was sentenced to [years] of ‘re-education through labour’ in February 2012.

7. In 2013, the applicant attended a Yiguan Dao temple, [Named] Temple, in [Suburb 2]. The applicant was initiated into Yiguan Dao in October 2013. Following his father’s early release in January 2014, the applicant sent Yiguan Dao books and converted his father.  In May 2014 the applicant’s father organised a temple at his home in China, and converted other people. When holding a ceremony in [March] 2015, the police raided the house temple and the applicant’s father and other worshippers were arrested. They told the police that the applicant had converted them. The applicant has been labelled a dangerous person who used an evil cult to threaten or harm state security. The applicant therefore will be arrested should he return to China.

   The hearing

8. The applicant’s evidence is summarised below and, where relevant, it is referred to in the Assessment of Claims and Evidence.

9. The Tribunal explained the refugee and complementary protection criteria to the applicant.

10. The applicant provided a copy of his passport and copies of photographs which show him with other practitioners at what appear to be gatherings at a temple.

11. The applicant indicated he had no difficulty understanding the interpreter.  He was born in Fujian Province China, he has a father mother and [sibling].

12. He has no family in Australia.  He attended a [school] for [studies] in China.  He arrived in Australia on a student visa in 2007.  He studied several courses in Australia.  He began studying a [course] in February 2009 He states he could not finish that course as his father was not able to provide financial support.

13. His visa expired in March 2010.  The Tribunal asked why he did not return to China when his visa expired.  He responded that he could not return as he was scared.  He claims that he needed protection in 2010.  He heard about a protection application from a fellow construction site worker.  He said the co-worker told him to get protection after he told him what happened to his father.  The Tribunal asked why he delayed putting in an application for protection for five years.

14. He said a co-worker then told him he probably did not have a good chance of a claim.  The Tribunal then asked him to discuss why he could not return to China.  He said that in 2013 he was introduced to Yi Guan Dao.  He said his father had difficulties and this affected him.

15. He claims he went to the Temple and found it helped him during this difficult time.  He claims he found solace.  He claims he was introduced to Yi Guan Doa by a fellow worker.   

16. He claims his father was working in [Country 1] and was not paid for the work he did.  He returned to China and [undertook Activity 1] of his fellow workers to try and get payment.

17. The Tribunal asked why his father did not try to get redress in [Country 1] as [Country 1] has systems in place to protect workers.  He said that his father’s passport had been taken from him and he had been promised that when he finished work he would get paid.  The Tribunal again queried why he would return to China and not seek payment in [Country 1].  He said that he had no option as he was threatened and he did not know [Country 1].

18. He claims his father then returned to China and sought redress there.  He claims his father first went to the police however the police were no help.  He claims his father then [undertook Activity 1] with his fellow workers. 

19. The Tribunal asked why his father did not seek redress through the civil avenues available in China for such things such as unpaid wages.  He repeated that the police would not help.

20. He claims his father was then accused of [Activity 2].  He was accused of [Activity 1 and Activity 2] in China.

21. He claims that his father was sentenced in January 2012 to a labour programme for a number of] years.  He claims that after he started attending Yi Guan Dao his father was released and it was a miracle. 

22. He claims that this is why he is so committed to Yi Guan Dao.

23. The Tribunal then asked the applicant about Yi Guan Dao including how the temples are set up and what rituals are observed?  His response was vague and he recited the timetable of his classes and gatherings.  He stated that he attends a reading gathering every Tuesday.  When pressed by the Tribunal that he had not answered the question he responded with “save people”, “save yourself” ‘cycle of re-birth”.

24. He repeated the same phrases about respect to teachers and parents, be true to yourself, not die but go to hell or heaven. The Tribunal asked about the form of prayer which is used by adherents to Yi Guan Dao.  He gave a vague response about bowing with no detail. 

25. The applicant claims he converted his father, after his release from detention, who then set up a temple.  The Tribunal queried why he would put his father at risk by encouraging him to follow a religion he claims he knew in 2010 was banned in China.  The Tribunal asked why he would send books he claims he knew had to be disguised and would be dangerous if discovered.   He gave what appeared to be a rehearsed response that he introduced his father to Yi Guan Dao and it is regarded as an evil cult.  He claims he, the applicant, is seen as the leader.

26. He responded that because his father was released from detention he strongly believed this was due to Yi Guan Dao.  The Tribunal then asked him to expand on his claim that his father was again detained due to setting up a temple.  He claims his father was detained from March 2015 until December 2016.  He claims his father became [ill] .

27. He claims that his father and the others were interrogated and they provided the applicant’s name to the Chinese authorities. 

28. The Tribunal pointed out that at interview with the Department he appeared to have a problem with his knowledge of Yi Guan Dao.  He claims that this was a problem as he was nervous and could not remember the books.  He stated he now has the books.  He stated he would like an opportunity now to discuss books.  The Tribunal then invited him to discuss the books.  He did not go into detail other than he had books with him.  He again repeated the same mantra “save yourself” “repent”.

29. The Tribunal then put country information to the applicant.  This country information included that there have been no reports of arrests or detentions of Yi Guan Dao practitioners by the Chinese authorities since 1995.  The Tribunal referred to Yi Guan Dao no longer being an evil cult.  The Tribunal then referred to country information which indicates that since the 1990s it has been associated with preserving cultural heritage in China and stemming the growth of Christian churches and sectarianism in rural areas.

30. He responded that his father set up a temple because of him.  He claims his father organised [a number of] people in the temple and when his father and those people were interrogated they repeated his (the applicant’s) name.  He stated he will be arrested by the public authorities.  He responded that he is the leader and is seen as the leader in their eyes.  He claimed that the consequence of him returning to China is very serious.  He claims he will not be safe.

31. The Tribunal again referred to Country Information that educators in Yi Guan Dao were invited back to China.  He claims it was never implemented.

32. The representative was than invited to make any comments.  He made representations that Yi Guan Dao is persecuted.  He did not accept the Independent Country Information referred to by the Tribunal.

    Country information

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

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

    Other Buddhist Sects

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

    Academic studies suggest that Yiguandao (which is an illegal sect in the PRC) ceased to exist in mainland China by the mid-twentieth century, but that it has been gradually re-establishing as an underground movement through the efforts of missionaries from outside mainland China (notably Taiwan and Hong Kong). DFAT is not able to verify the extent to which Yiguandao members practise their faith in China. As it is an illegal organisation, members coming to attention of the authorities are likely to face a degree of harassment, but DFAT is unable to verify the extent or severity of such harassment.[1]

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

35. The Tribunal takes into account the DFAT report as it is required to do. However it notes that there is more recent country information which indicates that the attitude of the Chinese government to Yiguan Dao has changed and Yiguan Dao is no longer considered to be an “evil cult”. The Country of Origin Information Services Section of the now Department of Home Affairs undertook research and reported the following information on 16 February 2018. There was no clear indication of the prevalence of Yiguan Dao in China, or in Fujian province.[2]  Limited information was located on the treatment of practitioners. One academic authority on the sect reports that the Chinese government may be seeking ways of legalising Yiguan Dao but issues include how to manage its past criticism of the group.  Since the 1990s Yiguan Dao has been associated with preserving cultural heritage in China. Some Taiwanese Yiguan Dao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. While Yiguan Dao had been suppressed in mainland China the situation changed in the mid-1980s and the National Studies Fever of the 2000s provided a means for Yiguan Dao to contribute to the revitalisation of traditional culture. While in the past Yiguan Dao was considered to be an evil cult and followers had to relinquish their membership and publicly denounce the religion, the call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. The National Studies Fever began in 1993 in universities and gradually spread to the public becoming more popular in the 2000s. Scholars, educators and parents were devoted to the trend while the state invested national resources to construct infrastructure and to promote the movement. Confucius institutes were established and there are now 500 branches offering 1000 courses, educating in the Chinese language and propelling Chinese culture into the world. It is argued that this is seen as revitalisation movement that the state and society used to try to restore the missing traditional culture, though Yiguan Dao also tries to syncretise Buddhism, Taoism, Christianity and Islam with Chinese culture, mainly Confucianism. Yiguan Dao has thus participated in the trend.[3]  Academic Assistant Professor in Chinese Religions Studies at Tawain’s National Chengchi University, Ching-Chih Lin states that:

    […] Some branches of Yiguandao sent followers back to China to set up preschools and extracurricular schools with specialization in reading Chinese classics and poems, plus highlighting moral teaching, which differentiates them from their regular competitors. In the 21st century, Yiguandao has been afforded a very promising opportunity to return to mainland China as part of the National Studies Fever. In fact, Yiguandao’s return was tacitly connived at by the PRC for multiple purposes: to promote the grassroots organizations of National Studies Fever, to win over the Taiwanese and overseas Chinese, and to stop the rapid growth of Christian churches and sects in rural areas.[4]

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

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

    [4] Ibid pp 243-244

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

   […] In fact, the backroom communication between the PRC and Yiguandao representatives started in the 1990s, and the public interactions began in the mid-2000s. In the first stage, the PRC government sent scholars with special backgrounds, such as retired police officers or officials of the Taiwan Affairs Office or the United Front Work Department to contact Yiguandao in Taiwan and abroad. Yang Liuchang (楊流昌), an official of the Taiwan Affairs Office, earned a PhD in Beijing investigating the history of Yiguandao and its development in Taiwan and published his dissertation in Hong Kong. This book suggests that the PRC government is seeking a way to allow Yiguandao to return to mainland China as it concentrates on the process of legalization and negotiations between the KMT and the religion[5]

   [5] Ibid, p 244

2. Lin also states that the Chinese authorities did not include Yiguan Dao on the official list of evil cults issued in 2000, indicating a change in attitude. This was strengthened by invitations to Yiguan Dao leaders to visit mainland China from 2006. He acknowledges that in the past, most activities of Yiguan Dao in mainland China were under surveillance and some religious leaders were arrested or exiled. There is now mutual understanding which began in the early 1990s when Yiguan Dao associations made donations to assist victims of several natural disasters. Yiguan Dao leaders entrusted messages to scholars to communicate with the think tank Institute of World Religions, Chinese Academy of Social Science in 1996 and invited the Institute’s faculty members to visit branches of Yiguan Dao and attend academic forums organised by the religion from 1997 onwards. Yiguan Dao leaders were invited to visit mainland China from 2006 onwards. The United Front Work Department even invited several top leaders of Yiguan Dao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[6]

   [6] Ibid, p 245

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

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

4. The Tribunal discussed relevant parts of the country information with the applicant at the hearing.

   ASSESSMENT OF CLAIMS AND EVIDENCE

5. The applicant claims to be a citizen of China. He claims that he was born in the People’s Republic of China. The Tribunal has assessed his claims against China as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s.36(2)(aa).

6. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.    If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.   However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.

7. The applicant claims that his father was detained by the authorities in China in a labour camp in January 2012 for [Activity 1] in relation to him and his fellow workers’ claim for unpaid wages.  He claims his father was accused of [Activity 2].  He claims that one month after the applicant became a follower of Yi Guan Dao in November 2013 the Chinese authorities abolished the re-education through labour system and his father was released in January 2014.

8. The applicant claims that this was a miracle and as a result he is a committed follower of Yi Guan Dao.  He claims that his father had a bad record with the authorities and found it difficult to start his life again.  The applicant claims he then encouraged his father to follow Yi Guan Dao.  He claims that he sent books hidden in wool beddings and used different names to send material on Yi Guan Dao to his father.

9. He claims that in May 2014 his father set up a secret Yi Guan Dao temple and spread Yi Guan Dao to the appplicant’s family and friends in China.

10. He claims that in March 2015 the police raided a ceremony at the secret temple in his father’s home.  He claims that his father and others were detained and interrogated.

11. He claims that in interrogation they named the applicant and he is a dangerous person and must be arrested if he returns to China.

12. The applicant attended a hearing where he was invited to expand and discuss his claims.  The Tribunal in relation to the claim that his father was detained for [Activity 2], asked why the applicant’s father would not pursue other avenues for unpaid wages in [Country 1] or China other than a protest.  His evidence was vague and he referred to the police not assisting his father.  At hearing he referred to his father not knowing [Country 1] and then later his passport being taken from him.

13. The applicant did not provide any other independent evidence other than his own assertions.  At hearing he did not provide any convincing or persuasive evidence in relation to why his father would start [Activity 1] in China when his claim was against his employer.  In his written claims he referred to the sister of the person who owed the wages being a [official].

14. He did not expand on this at the hearing when he was given the opportunity. 

15. The applicant claims that due to his following Yi Guan Dao a miracle occurred and his father was released in January 2014 when the authorities abolished re-education through labour.

16. He claims that he then converted his father to Yi Guan Dao and his father in May 2014 set up a temple.  At hearing he could not explain why if he knew his father had already suffered at the hands of authorities he would set out sending him prohibited material on Yi Guan Dao and putting him and his family in danger.  He simply responded that his father was going through difficult times and his release was a miracle bought about by his adherence to Yi Guan Dao.

17. He claimed his father was arrested for organising a gathering.  He was not able to give any convincing evidence of how his father could be converted and in a few months be organising large gatherings of people other than to say his father found life difficult.  He gave inconsistent evidence as to when his father was arrested.  He claimed to the Department, as set out in the Department’s decision, that his father was arrested in March 2015 and detained for three months.  At hearing with the Tribunal he claimed that his father was arrested in March 2015 and released in December 2016.

18. The Tribunal put to the applicant that at interview with the delegate which was set out in the Department’s decision he had appeared to have trouble discussing aspects of his belief.  He was unable to give any detailed information on the Yi Guan Dao and was unable to discuss the books he brought to the interview.

19. At the hearing which was conducted nearly three years after the delegate’s interview he again was not able to give to any persuasive or detailed evidence of his beliefs. When the inconsistencies in relation to the interview and his lack of knowledge were put to the applicant he stated he was nervous.  The Tribunal accepts that one may be nervous at a Department interview however the concepts and events being discussed were not difficult.  They were basic aspects of the religion and knowledge and when given an opportunity at hearing to overcome these concerns the applicant was again vague and could not articulate basic aspects of his religion.  He gave responses that consisted of repeating a mantra and not answering the query.

20. The applicant was not able to go through with the Tribunal basic practices of Yi Guan Dao such as how temples are laid out, five rituals or explain how praying/kowtows are undertaken.

21. The above are not complicated aspects of Yi Guan Dao and one would expect a person who says they have been practising since 2013 and so passionate that they are committed to preaching and converting their family and friends would know the basic rituals. When pressed he would respond by listing the gatherings he attended or repeating the same phrases such as “save people”, “save yourself,” “cycle of re-birth”.

22. The applicant did not provide any evidence of him being initiated or letters of support from other members of Yi Guan Dao.  When queried he stated the temple does not issue such proof.  At interview he stated that photographs were not allowed however he provided such photographs of himself at what appeared to be gatherings with members of Yi guan Dao to the Tribunal.

23. The Tribunal does not accept that the applicant is a committed or practising member of Yi Guan Dao.  As the Tribunal does not accept that the applicant is a committed or practising member of Yi Guan Dao it does not accept that the applicant converted his father or that his father was arrested.

24. The applicant provided photographs of himself attending events in what appeared to be Yi Guan Dao gatherings. The Tribunal accepts that the applicant has attended at a Yi Guan Dao temple and some gatherings.  He had some knowledge of classes and events.  The Tribunal has considered whether due to being imputed as a member of Yi Guan Dao there is a real chance applicant will suffer serious harm if he returns to China.  

25. Having considered the country information the Tribunal notes that the DFAT Report of December 2017 records that Yi Guan Dao is an illegal organisation, and as such members coming to the authorities’ attention are likely to face a degree of harassment, but DFAT is unable to verify the extent or severity of such harassment. However the Tribunal notes that more recent country information records that the government’s attitude to Yi Guan Dao has changed and Yi Guan Dao is no longer considered to be an “evil cult”. The Tribunal notes an academic authority on the sect suggests that the Chinese government may be seeking ways of legalising Yi Guan Dao.  The Tribunal accepts that since the 1990s Yi Guan Dao has been associated with preserving cultural heritage in China. Taiwanese Yi Guan Dao educators were discreetly invited to return to the mainland and help promote Chinese tradition, in order to slow down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the situation for Yi Guan Dao members changed in the mid-1980s and the National Studies Fever of the 2000s provided a means for Yi Guan Dao to contribute to the revitalisation of traditional culture. The call for restoring traditional culture gave space for the reading of classics and the restoration of Confucius’ status. The Tribunal notes scholars, educators and parents were devoted to the trend while the state invested national resources to construct infrastructure and to promote the movement, Confucius institutes were established and there are now 500 branches offering 1000 courses, educating in the Chinese language and propelling Chinese culture into the world. The Tribunal notes there is a revitalisation movement that the state and society used to try to restore the missing traditional culture, though Yi Guan Dao also tries to syncretise Buddhism. The Tribunal notes invitations were given to Taiwanese Yi Guan Dao leaders to visit mainland China from 2006. While activities of Yi Guan Dao in mainland China were under surveillance and some religious leaders were arrested or exiled it notes there is now mutual understanding which began in the early 1990s when Yi Guan Dao associations made donations to assist victims of several natural disasters. The Tribunal notes Yi Guan Dao leaders were invited to visit mainland China from 2006 onwards and the United Front Work Department invited several top leaders of Yi Guan Dao branches to visit several historical sites of the religion and the hometowns of its modern founders, Zhang Tianran and Sun Huiming.[8]

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

26. Having considered this more recent country information the Tribunal is not satisfied that practitioners of Yi Guan Dao are persecuted or harmed in China. The Tribunal has taken into account the applicant’s and his representative’s assertion that while the government appears to support the cultural aspects of Yi Guan Dao they do not support the spread of Yi Guan Dao and that it is an evil cult. Having considered the country information set out above the Tribunal is not satisfied that this is the case. It has formed the view that the situation for Yi Guan Dao members has improved and appears to be improving to the extent that the authorities in China are looking for ways of legalising Yi Guan Dao as they consider it promotes Chinese tradition and slows down the rapid growth of Christian churches and sectarianism in rural areas. The Tribunal also notes the Country of Origin Information Services Section in a report dated 7 June 2017[9] did not locate any information from searches on Yi Guan Dao practitioners being arrested, detained or imprisoned in mainland China.

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

27. On the basis of the country information the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm because he and/or his father and/or his family are members or imputed members of Yi Guan Dao.

28. The Tribunal has considered the claim that the applicant’s father was detained, interrogated and tortured.  It notes however that research undertaken by the Country of Origin Information Services Section in a report dated 7 June 2017 did not locate any information from searches on Yi Guan Dao practitioners being arrested, detained or imprisoned in mainland China. The applicant seeks to rely on his assertions that his father has been incarcerated twice once due to [Activity 1] in relation to unpaid wages and again as a follower of Yi Guan Dao.  However on the basis of the material before the Tribunal it is not satisfied that this is the case. Therefore it is also not satisfied that the applicant’s father is of adverse interest to the authorities in China because of a [Activity 1] and his political opinion and/or Yi Guan Dao. Accordingly it is not satisfied that there is a real chance the applicant will suffer serious harm on the basis of these claims.

29. The Tribunal has considered the claim that the applicant spread Yi Guan Dao to his father who then set up a group and was arrested. Having considered the country information the Tribunal is not persuaded that this is the case. Even if this had occurred it is not satisfied the applicant will be harmed because of it, if he goes to China. The Tribunal notes that the Chinese authorities have been arranging Taiwanese branches to send people to China to teach the principles of Yi Guan Dao. It is not satisfied in these circumstances that there is a real chance the applicant will suffer serious harm if he has been named by his father or his father’s friends and relatives and is considered a leader of the temple he claimed his father set up.

    Does the applicant meet the complementary protection criteria?

30. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.

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

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

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

34. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s.5(1).  The Tribunal accepts that the applicant may have attended a Yiguan Dao temple. The Tribunal however is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk he will suffer significant harm.  He therefore does not satisfy s.36(2)(aa).

    Conclusion

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

36. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Catherine Carney-Orsborn
    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.

    …