1614225 (Refugee)

[2019] AATA 6901

1614225 (Refugee) [2019] AATA 6901 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614225

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:5 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2019 at 11:27am

CATCHWORDS

REFUGEE – protection visa – China – religion – Christianity – protests against removal of crosses from church – arrest and threats by police – credibility – inconsistent, vague and unpersuasive evidence of study and activities – identification of college and authenticity of qualification – other claims unsubstantiated – church membership and activities in Australia solely to strengthen protection claims – continued ownership of property in home country – possibly fraudulent passport – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 438

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 dependants.

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 26 August 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 20 November 2015. The second named applicant seeks to rely on the claims of the first named applicant (the applicant).  The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.

3. There are two purported s.438 certificates on the Department’s file. The first dated 29 August 2016 purports to certify that folios 41 to 42 and 47 to 53 should not be disclosed because the information ‘relates to internal deliberations of the department.’ Folios 41 to 42 include advice from [State 1] Police that the applicant was charged with offences relating to possessing and dealing with identity information to commit an indictable offence (since dismissed). This information was discussed with the applicant during the delegate’s interview and at the Tribunal hearing. Folios 47 to 53 contain information about the examination of a passport in the applicant’s name, used by her to attempt to open a bank account in Australia. The Department’s document examiner formed the view that passport was fraudulent. This information was also discussed with the applicant at the delegate’s interview and at the Tribunal hearing. The Tribunal notes the information contained in those folios was discussed with the applicant at the delegate’s interview, as recorded in the decision record. The Tribunal is not satisfied the disclosure of the information would be contrary to the public interest. Having considered the purported s.438 certificate, the information in those folios, and the reasons given by the delegate, the Tribunal is not satisfied the reasons given properly identify a basis for public interest immunity. Accordingly the Tribunal finds the certificate dated 29 August 2016 is not valid.   

4. The second purported s.438 certificate dated 7 September 2016 purports to certify that folios 37 to 42, 47 to 53 and 85 should not be disclosed because it would be contrary to the public interest as the folios contain ‘information relating to an internal working document and business affairs’. The information in folios 37 to 42 relates to the applicants absconding from their tour group and the applicant’s criminal charges referred to above (since dismissed). This information was discussed with the applicant at the delegate’s interview and at the Tribunal hearing. Folios 47 to 53 concern an examination of the passport, discussed above. This information was also discussed with the applicant at the delegate’s interview and at the Tribunal hearing. Folio 85 is the first purported s.438 certificate, discussed above, which the Tribunal has found is not valid.  Having considered the purported s.438 certificate and the reasons given for why disclosure would be contrary to the public interest ‘because the aforementioned folios contain information relating to an internal working document and business affairs’, the Tribunal is not satisfied the reasons given properly identify a basis for public interest immunity. Accordingly the Tribunal finds the certificate dated 7 September 2016 is not valid.

   CLAIMS AND EVIDENCE

   Evidence to the Department

5. When making the visa application the first named applicant (the applicant) provided the following information. She was born on [Date] in Fujian Province, China. She is a citizen of China. She does not have the right to reside in any other country. She speaks Mandarin. Her religion is Christianity. She married the second named applicant [in] 2000 in China. She and her husband have 2 children, a son born [Date] and another son born [Date]. Her parents and two sons reside in China. Her passport was obtained lawfully. Her occupation is preacher. Prior to departing China she was employed as an assistant preacher.  She departed China [in] November 2015 and arrived in Australia [in] November 2015 as the holder of a visitor visa.

6. Prior to travelling to Australia the applicant resided at [Address 1], Tiancheng Town, Pingtan County, Fujian, China where she had lived since [year].

7. The applicant claims that from September 1999 to July 2003 she was an Assistant Preacher of [Location 1] in [Village], [Town 1], Pingtan County, Fujian, and from July 2003 to departure she was an Assistant Preacher of [Location 2] Church in [Village], [Town 1], Pingtan County, Fujian. She claims she completed a Diploma at [Institution name 1] in Changshan District, Fuzhou, Fujian, China from September 1997 to July 1999.  

8. In a written statement provided with the visa application the applicant claims both she and her husband are from Christian families. After graduating from [Institution name 1] in 1999, she preached at a church in Pingtan County. She claims that in recent years, many churches and Christian crosses have been forcibly removed in some cities in China. She claims that recently government leaders have ordered their removal. She claims despite their efforts to protect it [a] Church was demolished during construction of [deleted].

9. The applicant claims that in August 2015, the leaders of [Town 2], Pingtan County were planning to remove the Christian cross on the [Location 3] Church because it affected the “Fengshui” of the village. The applicant claims they organised many protests and parades but they experienced violent law enforcement. She and some others were taken to a police station. After she was released, they had gatherings and parades in an effort to keep the cross on the [Location 3] Church. While they were planning a big protest/march the police came to the applicant’s home however she was not home that day. Instead the applicant and her family stayed at a friend’s home until they left China [in] November 2015.

10. The second named applicant, born [Date], is included in this application. He did not make his own protection claims.

11. The applicants provided copies of their Chinese passports. They also provided their marriage certificate stating they married in Pingtan County [in] 2000.

12. The applicant provided a Graduation Certificate from [Institution name 2] dated [July] 1999.

13. The applicant provided a letter from [Pastor A] of [Church 1] dated 7 August 2016 in which he claims the applicant and her husband joined the church [in] December 2015 and attend regularly. He considers them both to be regular and proactive in the church which has 3 weekly meetings, Sunday worship, midweek Bible study and Friday prayer. They also participate in the daily Bible study web chat. They attend ‘disciple maker’ training on a monthly basis. They also visit the sick and elderly in hospital. He has witnessed their commitment and believes they were Christians before they joined [Church 1].

    Evidence provided to the Tribunal

14. The applicants provided to the Tribunal a copy of the delegate’s decision record. It records oral evidence given to the delegate by the applicant in an interview held on 8 August 2016. The Tribunal has listened to the record of the interview and while not a transcript the Tribunal is satisfied the information recorded in the delegate’s decision record is a correct representation of the oral evidence given. The following information comes from the delegate’s decision record.

15. The delegate raised with the applicant that at the time of her visitor visa application fraudulent information was given to the Australian Embassy in relation to her and her husband’s employment details. The delegate put to the applicant that a considerable amount of money would have been paid for those documents. The applicant denied this. She claimed her passport is genuine and it reflects her genuine identity.

16. The applicant claimed that her 2 sons were aged [Age 1] and [Age 2] at the time and resided in Fuzhou with her father-in-law. They were studying. Her parents had retired.

17. The applicant claimed that her husband was a shareholder in a [company] in China before travelling to Australia. He had worked in Xian and Fuzhou for 5 to 6 years.

18. The applicant was asked about the theology college she attended. She stated “Fujian”. She was asked the name of the college and she stated “[Institution name 3]”. The delegate put to her that the name of the college on the documents she had submitted did not correspond with the name she provided in her application, [Institution name 1]. The applicant indicated that it might have been a translation problem. She claims she attended the College from 1997 for 2 years. When asked about the branch of Christianity associated with a college, she indicated it was “underground church”. The delegate put to her that this was not plausible and asked if the college was attached to the Three Self Patriotic Movement (TSPM), the official church in China and she said “yes”. It was put to her that the government would not allow a seminary to train people to preach in the underground church. The applicant indicated however that she participated in the underground church.

19. The delegate asked the applicant for other details about the college, the Dean’s identity, the location of the college and its signage. She claimed that it was named [Institution name 2]. The delegate explained to her that this was not correct. He asked her to describe the college setting. He indicated that in his view she had not described the setting as it appeared in photographs of the college. He noted that she did not seem to know much about the college buildings. She indicated that the college had relocated to another place since she was there.

20. The delegate asked the applicant about study she undertook at the college. She said “old Testament, new Testament and other subjects”. She said they were mostly women.

21. The applicant was asked where she went to preach after she left the seminary. She stated she preached at a church in Pingtan. She was asked at which church she first preached. She stated it was [Village] in [Town 1]. She was asked to explain her role in the church and she said “we did the sick people and preached”. She indicated they read the Bible on Wednesdays. She was asked how many years she worked at the church. She indicated she worked there from graduation until now. She was asked if she preached at, or was attached to, any other churches. She indicated there were 16 churches. She indicated she was attached to, or working as an assistant preacher, at 16 churches. The delegate noted that she had indicated in her visa application that she had worked at 2 churches since graduation until she departed China. She indicated she needed to visit other churches. She indicated there were 2 churches but she was associated with 16 churches. She was asked if these churches were part of the state approved TSPM and she said “yes”.

22. The applicant claimed her parents were Christian and practised Christianity in China. She said they practised in their town.

23. The applicant was asked what she believes in as a Christian. She stated “God”. The delegate raised with her that if she had been preaching Christianity for as long as she claimed and she would have provided more details to explain her beliefs. She indicated that “we worship God because God sent his son to save our humans and he was crucified.” She confirmed that she had worked as an assistant preacher until she came to Australia. She was asked about her other duties, and to describe an average week in the church. She indicated she visited followers at home and prayed with them. She also visited hospitals and prayed for sick people. She was asked from more detail. She indicated that normally on Wednesday night they read the Bible. She normally lived at home but when she needed to preach she would go to the church.

24. The delegate raised with the applicant that she had not given him the impression that she was an assistant preacher. He thought if she had been working at churches over a 13 year period should be able to give more information. She indicated she needed to hear the questions. He repeated the question about her duties of the church and suggested there would be all types of duties that she would perform during the course of a day or week. She indicated she read the Bible on Wednesday nights and preached and did the mass on Sundays. She indicated she prayed for the sick and dying.

25. The applicant claimed that previously the government had supported their church. However in August 2015 there was a tomb near the church and a feng shui master found that a cross on the church damaged the feng shui of the tomb so they wanted to dismantle the cross. The descendant of those buried in the tomb was a high official who had the power to dismantle the cross. She said the cross was under the supervision of the [Location 3] church. She indicated the cross was built because they worship God and Jesus but the officials wanted to dismantle the cross and the followers were sad. The delegate asked the applicant what she thought would happen to her if she returned to China, suggesting there was nothing stopping her from practising her religion as she had been practising at a government-controlled church. She indicated she was a preacher for 13 years but last year the owner of the tomb wanted to dismantle the cross and even hired a crane. She claimed to have organised a demonstration against it.

26. The delegate asked the applicant what she thought would happen if she returned to China as it appeared she would be able to practice her religion in the state church. She claimed that “we 3 people were leaders of the demonstration”. She claimed that she and 2 other preachers were detained in the police station and they asked her “to write a promise”. The delegate indicated he was not satisfied she would be of interest if she returned to China. The applicant indicated that one of her relatives works in the police force and told her not to return because she organised a demonstration and the police wanted to arrest her.

27. The delegate asked the applicant if she had been charged with any criminal offences since she arrived in Australia. She indicated that when she came to Australia her passport was taken from her by the travel agent and she has been told that her passport is fake. She indicated she was charged with a criminal offence in Australia, “because of this”. She was asked if she was on bail and required to report to [Suburb] police station. She confirmed that this was the case. She was asked if she did report as required and she claimed that she did. She was asked if she had attended court and she said that she did. She claimed that nothing happened in court. She was asked why the Department’s document examiner concluded that her passport was most likely fraudulent. She claimed that the tour agency took away her genuine passport and gave her back a different passport. The delegate formed the view that she was not being forthcoming with information. The applicant indicated she could not use a fraudulent passport because she is a Christian. She said they paid some money to the leader who promised to return her passport. She indicated she did not understand the issue about the passport.

28. The delegate put to her that it did not appear she would be of interest to the authorities in China, where she had been able to practice her religion. She indicated that if they organised another demonstration they will detain her. The delegate put to her that he was not satisfied she was capable of organising a demonstration. She indicated they flew a banner in front of the township government. Her uncle works for the police and she was told not to return. She claimed she was asked to sign a promise not to act against the government.

29. The delegate accepted that the applicants had provided sufficient evidence of their identities. On the basis of the evidence however he was not satisfied that the applicant left China on account of any genuine fear of persecution or that she holds a genuine fear of persecution upon return to China. He formed the view that she was vague and evasive when responding to questions about how she acquired her visitor visa to travel to Australia. He noted that information provided by the visa processing office indicates fraudulent information about the applicant’s employment was submitted. He considered her reluctance to be forthright in relation to the fraudulent information provided was indicative of her overall poor credibility.

30. The delegate also did not accept that the applicant had attended a Christian theological seminary. He did not accept that a college associated with the TSPM would train people to preach in an underground church. He was not satisfied that her description of the college was persuasive. He did not accept as reliable a document purporting to be a copy of her graduation certificate from the college, given his concerns about her credibility and the prevalence of fraudulent documentation emanating from China.

31. The delegate noted that the applicant gave inconsistent evidence in relation to the churches in which she claimed to have preached. In relation to her duties in the church, he considered her responses were not indicative of a person who graduated from a religious seminary and worked as a member of the clergy over 15 years. He found her responses in regard to her general religious beliefs were not commensurate with her claimed religious background. He rejected the applicant’s claim of having worked as a member of the Christian clergy in China. Having found the applicant was not a credible witness, the delegate did not accept that she was involved in any protest activity, or that she was arrested and detained as claimed.

32. The delegate also noted that information was available to the Department indicating that the applicant was charged with a criminal offence relating to the attempted use of a false passport to open a bank account. He noted that copies of the applicants’ passports were provided to the Department’s Document Examiners in Victoria who concluded that the passports contain characteristics consistent with those identified as fraudulent Chinese passports and that the passports were most likely fraudulent. He noted that the passports in question had the same details as the biographical page of the passport copies submitted with the applicant’s protection visa application. However the photos of the applicant and her spouse are clearly different photos. He noted that when she was asked about the pending criminal charges her responses were evasive and she was not forthcoming with any explanation. He noted she maintained that her passport was genuine. He noted that this information had been put to her in writing and she was provided with an opportunity to provide an explanation. Her migration agent then submitted original ID cards in response to that invitation with no explanation about the passport issue. The delegate formed the view this is a further indication of the applicant’s overall poor credibility.

1. Overall the delegate did not accept that the applicant attended a theological college or that she ever worked as a Christian preacher in China. He did not accept that she was involved in a protest or that she was arrested and detained. He accepted that she has been attending the Christian church in Australia. He referred to country information indicating that there are nearly 90 million Christians in China including those at the TSPM churches and unregistered churches. He was not satisfied that the applicant has a well-founded fear of persecution. Nor was he satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if returned to China. As he found the applicant is not a person in respect of whom Australia has protection obligations, he also refused to grant a protection visa to the second named applicant.

2. The applicant provided evidence to the Tribunal that she has been working as [an Occupation] at [Employer]. She also provided another letter from [Rev A], Senior Minister, [Church 1] dated 19 November 2018 stating that the applicants joined the Church [in] December 2015 and that he believes they became Christians at an early age. He claimed the second named applicant was baptised in Australia and the applicant was baptised in Fujian [in] December 1996. He stated that the applicants are involved in services and are practising disciples. The applicant has served in the pastoral team and the second named applicant has served as a deacon. They are also involved in the church’s Wechat program. It is claimed that they were previously living under pressure with constant worry over their future and security. He believes they will be subjected to significant harm if they return to China.

3. The representative provided examples of Wechat screenshots which include quotes from the Bible. He also provided photographs of the applicants attending church activities and the applicant visiting a church sister in hospital. He advised the applicant has been helping the [Church 1] to provide an active teaching program for Chinese speaking subscribers and that she has been working on this since 2017.

   Hearing on 30 May 2019

4. The applicants appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Their witness [Pastor A] also gave evidence to the Tribunal. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

5. The Tribunal asked the applicant if she used her own genuine passport to travel to Australia. She confirmed that she did. She came to Australia with a tour group. When she arrived in Australia she was required to give the tour leader her passport. She and her husband then absconded from the tour group. The Tribunal asked the applicant if she asked the tour leader for her passport before she absconded. She did not do this. The tour leader took her passport back to China. She then contacted the tour group and asked them to send her passport. They told her she needed to send some money, which she did, and then they sent her passport to Australia. She cannot remember the name of the tour group. She received the passport in February or March 2016 by registered post.

6. The applicant explained that she went to court in Australia for the charges relating to the use of a fraudulent passport and the charges were dismissed. She has no criminal record.

7. The applicant told the Tribunal she had no difficulty departing China. She left from Changle International Airport, Fuzhou City, from her own province.

8. The Tribunal asked the applicant about her address in China prior to coming to Australia. She indicated she lived at [Address 1] Tiancheng Town, Pingtan County, Fujian Province. She claimed she had lived there since she started her Theology course. She indicated that this was the address recorded in her hukou since 1999. The Tribunal noted that in her visa application she indicated that this had been her address since 1978. The applicant indicated that after she got married her hukou was changed to her husband’s address; not the address mentioned above. The Tribunal asked about her actual residential address in China. She indicated that she lived in [Town 1]. The Tribunal asked why she had not included this residential address in her visa application. She indicated that she included her registered address and did not provide her residential address because she misunderstood the question.

9. The Tribunal asked the applicant about her quality of life in China before she came to Australia. She confirmed that she and her husband were financially comfortable. She confirmed that they paid for their tour to Australia. The Tribunal asked where her children living. She confirmed that they live in Fuzhou City with her father-in-law. He has retired but looks after her children. Her oldest son is studying [Subject] at [a] University. Her other son is completing high school. The Tribunal asked who is supporting the father-in-law and children. She indicated that she and her husband send about $2000-$3000 per month. The Tribunal noted this appeared to be a significant amount by Chinese standards. It asked about her employment. She indicated that she has been working in [Work sector 1]. She does not work fixed hours. She appeared to have difficulty estimating how many hours she worked on average. The Tribunal asked her about the number of hours she worked during the week prior to the hearing. She indicated she had worked 50 hours. Her husband is working in [Work sector 2]. She could not estimate how many hours he works. She then indicated she might have had 2 days off in the week prior to the hearing. The Tribunal asked the applicant why she needs to send $2000-$3000 per month back to China. She indicated that her husband had purchased a property in China in 2012 for RMB[Amount 1]. She thought he had borrowed about RMB[Amount 2]. The mortgage repayments are RMB[Amount 3]. The other money is used to support her father-in-law and children who live in the purchased property. Her husband did not sell the property before coming to Australia because he intends to keep it.

10. The Tribunal asked the applicant about her own study and her knowledge of Christianity. She indicated that after she completed junior high she went to [a] Theology College in Fuzhou. The Tribunal asked about the course she completed. She indicated that it involved introductions to the old and new Testaments, to Jesus Christ, the Psalms, the Bible and Chinese politics. The Tribunal asked the applicant to explain the difference between the old and new Testaments. She indicated the old Testament is about a promise God made to the Israelis. The new Testament is about Jesus Christ and his crucifixion. She stated Jesus saved human beings. The new Testament is also about the apostles following Jesus. They wrote what they witnessed. She named the apostles. She knew Judas had betrayed Jesus.

11. The Tribunal observed that the applicant was able to give to the Tribunal oral evidence in relation to her theology course and her knowledge of Christianity. It noted however that her oral evidence on this issue recorded by the delegate was concerning. It asked if she could explain why her evidence to the delegate was lacking in detail compared to the evidence she had given to the Tribunal. She indicated that she could not give her evidence to the delegate because she was nervous and her mind went blank.

12. The Tribunal noted that when the delegate asked the applicant about the denomination or type of Christianity the college had prepared her for she said “underground church”. The Tribunal explained that this may raise a concern about the reliability of her evidence. The applicant apologised and said “it’s not like that; I was nervous”. She stated that due to the passport issue at the time her brain was muddled. She indicated she would not lie and her self-esteem was very low. The Tribunal indicated that it would take this into account but also noted that she had claimed to have studied at the Theology College for 2 years and to have preached for 13 years. It explained that it might be reasonable to expect her to have been able to give the delegate more detailed oral evidence even if she was nervous. The applicant indicated she had given him more detail as when she was asked about her Christian practice she said that she attends prayer group, Bible study and spreads the gospel.

13. The Tribunal asked the applicant about her preaching in China. She indicated she preached across an area or a subdistrict in [Town 1] which had 16 churches. The Tribunal noted that in her visa application she indicated she had preached at 2 churches. She stated there were 2 churches in [Location 1] and [Location 2], next to [Location 1]. They were very close but several minutes’ walk apart. She claimed that they were both TSPM churches. The Tribunal asked about the actual location of the churches at which she preached. She indicated that they were on Pingtan Island. The Tribunal asked her to clarify if there were 16 separate churches or whether some were affiliated. She claimed that all 16 were TSPM churches. She claimed that she was a preacher at only state sanctioned churches.

14. The Tribunal noted that it has country information which indicates that there are only 5 official state sanctioned churches on Pingtan Island.[1]  It asked whether there really were 16 official churches in the subdistrict of [Town 1]. The applicant indicated that some of the churches she preached at may not have been registered as they were not very big.

    [1] Country Advice China, CHN38219, Fujian Province - Dalian Island - Underground Christians - Underground Churches – Official Churches - Land resumption, 28 February 2011. In relation to the question on page 5 whether there are any official Chinese Christian churches on Dalian Island, the advice states:

15. The Tribunal asked the applicant about her Christian practice in China. She claimed that it started when she was very young. Both of her parents were Christian and went to the TSPM church. She started going to church when she was about [age] years old, in 1985. She claimed she was baptised in 1996. She also claimed she was baptised when she was [age]. She decided to go to Theology College when she was [Age]. The Tribunal asked if she had met her husband by that stage.  She indicated she met him in 1997 or 1998. She met him in the [Location 1] Church. He was living in Fuzhou and she was doing a two-month placement at the church at the time. His aunt introduced them. He was working as [an Occupation] for a [company].

16. The Tribunal asked the applicant if her husband was a Christian when she met him. She confirmed that he had been a Christian since he was a child. The Tribunal asked why in those circumstances he was not baptised until he came to Australia. She indicated that he was busy working and did not attend church often in China. The Tribunal asked if he attended church as a child and she confirmed that he did. The Tribunal asked why he did not think he should be baptised if he was a genuine Christian. She indicated in their area baptism was just done by pouring water. The Tribunal asked if, as a Christian preacher, she thought the sacrament of baptism was important and she confirmed that she did believe this. It asked in those circumstances why she had not encouraged her husband to be baptised. She indicated that sometimes he went to church in Fuzhou; at other times he went elsewhere. He did not have a regular church. He wanted to find a regular church before he was baptised. She had asked him about baptism and he said he would have to be very devoted to be baptised. He wanted to focus on his career. When asked about his career she said he was working as [an Occupation] for a [company]. The Tribunal asked the applicant if she thought her husband considered his work to be more important than his Christianity. She indicated that he thought, in terms of Christianity, he was covered by her.

17. The Tribunal asked the applicant about the protest in which she claimed to be involved. The applicant indicated they protested because in [Location 3] there was a crackdown and the government was using feng shui as an excuse to remove a crucifix. The Tribunal noted that it had looked on the Internet at images of churches in [Location 3] and they appear to still have their crucifixes. It asked the applicant to be more specific about the church which had its crucifix removed. The applicant indicated she was not sure about the current status of the church. She was not sure of the name of the church. The Tribunal asked about her role in the protest. She claimed that she was involved in the organisation of the protest. She claimed that preachers from several areas organised sisters to attend as the cross is the glory of God and cannot be taken away. The Tribunal asked the applicant to provide more details about her involvement in the organisation of the protest. She indicated that there were 5 leaders and many followers. She was a leader. The protest was held outside the church. The Tribunal asked for the name of the street on which the protest was held. She could not remember the name of the street. The Tribunal questioned how she could have arranged the protest if she did not know the church address. She indicated that they were familiar with the location of the church but they did not know the name of the street. The Tribunal asked the applicant to provide more detail about the protest. She indicated that the leaders had a discussion about where the protest should be held. They then decided to make demands of the officials by stating “you shouldn’t take the cross down”. The Tribunal asked if she had any other details to give about the protest. She indicated that they demonstrated, protested and said prayers.

18. The Tribunal asked the applicant whether she was present when the cross came down. She indicated that she was present when the cross came down, [in] August 2015. They were yelling and protesting. The Tribunal asked what happened then. She indicated that the officials came out and arrested them and took them to the police station. The applicant then corrected her evidence and said that before they took it down the police were arranging to arrest them. The Tribunal noted that it had observed that her oral evidence of the events was in a different order to her written submission. The applicant apologised for this. The Tribunal also asked her why she could not provide the name of the church. She indicated that all she could say was that it was [Location 3], a state church.

19. The Tribunal noted that the delegate had formed the view her description of her religious practice was not commensurate with a person who graduated from a religious seminary and worked as a clergy member for several years. The Tribunal explained that it may form the same view. It asked for her comments. The applicant stated as a preacher she would not tell a lie. She indicated that because of the passport issue she felt embarrassed and it had a mental impact. In her mind she was innocent. She had a shadow on her heart because of what others thought she had done.

20. The Tribunal explained that the delegate did not accept that she was involved in any protest activity, or that she was arrested or detained as claimed. It explained that it had not made its findings yet but it may form the same view. The applicant indicated that she was arrested and taken to the police station but held for less than 24 hours. She was threatened and had to sign an undertaking that she would not do it again. She was warned that there would be different consequences next time. She signed the undertaking [in] August 2015. She then prepared a second protest and invited more people to attend. The Tribunal asked for further details of the second protest. She said that the 5 leaders had discussed the issue in decided they should invite more people, the old and the young. The Tribunal asked the applicant what date the crucifix was removed from the church. She indicated it was removed [in] August 2015. The Tribunal noted that her oral evidence on the date of the removal of the crucifix was inconsistent. The applicant denied having said that the crucifix was removed [in] August 2015.

21. The Tribunal asked the applicant what happened after the crucifix came down. She indicated that her husband’s relatives came to the police station and said to her that if she organised people again she would be arrested. She then discussed it with her husband and asked him to start the process of escaping. She did not want to preach in an environment where there was no freedom. She felt she was being bullied by officials. She stated that her arrest and detention at the police station was her only contact with the authorities in China.

22. The Tribunal noted that the delegate had recorded that the Department’s document examiner looked at her passport and concluded that it was most likely fraudulent. He noted that the passport in question had the same details as the biographical page of the passport provided with her protection visa application however the applicant’s photograph in the suspected fraudulent passport was different to the photograph in the copy of the passport provided with the protection visa application. He noted however that the applicant had continued to maintain that the passport assessed as most likely fraudulent was genuine. He noted that the applicant’s migration agent submitted original ID cards in response to an invitation to comment on the adverse information about the most likely fraudulent passport, but no explanation was provided regarding the passport issue. The Tribunal sought the applicant’s comments on this issue. She claimed that the travel agency had sent her the fraudulent passport. She did not know at the time that it was fraudulent until the police raised it with her. She now accepts that it was not a genuine passport but claims that it was the travel agent’s fault. The Tribunal questioned how the travel agency could have got another photograph of her. She did not know.

23. The Tribunal raised with the applicant the delegate’s concern that she had not attended a theological college or that she had ever worked as a Christian clergy member in China. It noted that the delegate had recorded that the name of the religious institution she provided at the interview, “[Institution name 3]”, and the name of the college on the document she submitted, the graduation certificate, did not correspond with the name she had provided in her visa application. The delegate had also recorded that she did not appear to be familiar with the building and nearby landmarks. The applicant indicated that she had gone to [Institution name 2] at [Address 2], Cangshan District, Fuzhou. The Tribunal then looked for that college on the internet during the hearing but was not able to locate it. The applicant indicated that this was because since she arrived in Australia the college has been demolished. She referred to the site shown to her by the delegate in the interview. The delegate recorded in the decision record that if she had graduated from [Institution name 1], as she had claimed in her written visa application, then that name would have appeared on the document. However he noted that the document referred to [Institution name 2] which is not the same name as given in her written statement. The applicant indicated that [Institution name 1] is a new college located on [name road], known as [Institution name 4]. During the hearing the Tribunal was able to locate [Institution name 1], located at [Road name], Cangshan Qu, Fuzhou, on the internet but not [Institution name 4].

24. The Tribunal explained to the applicant that the country information indicates that if she was of adverse interest to the authorities she would have experienced difficulties in departing China. The applicant acknowledged that the government was not interested in arresting her because she signed an undertaking.

1. The Tribunal asked the applicant about her Christian practice in Australia. She indicated that she has been attending Bible study groups on Wednesdays, programs on Fridays and she worships on Sundays. Her husband also attends all of those activities. His attitude has changed in Australia because he is off work on Sundays and he can also attend Bible studies on Wednesdays.

2. The Tribunal noted that the applicant had told the delegate that she was attending and preaching in a state church in China. It asked what her practice would be if she returned to China. The applicant indicated that after she came to Australia she found a Pentecostal church. She believes she will take those values and faith back to China with her. Her husband also feels that the Pentecostal church is best. She will continue to preach. She has been moved by her personal experience and she can now speak the dialect. The Tribunal asked her to explain what she means by speaking the dialect. She indicated that she attended a conference in the [Suburb 2] where they were speaking the dialect, what was written in the gospel. She was asked to expand on this. She indicated all of the apostles got together and there was a big bang. She indicated she only realised the difference in Christianity when she experienced the church in Australia. The church in China is controlled by the government. She indicated that the people she preached to in China were limited. She could not preach to the military or children under 18. The Tribunal noted her evidence that she started attending the church [as a child].

3. The Tribunal asked the applicant if ‘speaking in dialect’ was the same as ‘speaking in tongues’. She confirmed that this is what she meant. The Tribunal asked how often she speaks in tongues. She indicated she did it once in the [Suburb 2] [in] October 2016. She then indicated she prays that way at home. The Tribunal asked whether she does it in her church. Her response was vague but she then indicated she did it 2 weeks ago or last week. The Tribunal asked why she could not do this at home if she returned to China. She indicated in China she had not experienced such things. She indicated that if she went back to China she would do it.

4. The Tribunal noted that the applicant had indicated that she had a different appreciation of Christianity since she had gone to church in China. It asked if she would be able to attend an underground church, rather than a state church, if she returned to China. She indicated that she would go to the underground church but it is not allowed in Fujian. The Tribunal noted that the country information indicates that there are between 30 million and 60 million unregistered Protestants in China and that while those Christians may face hardship many are able to practice their religion in underground churches. The applicant disagreed with the country information. The Tribunal indicated it may not be satisfied that she would practice as a Christian if she returned to China. She indicated she feels that she would bring those things from the Pentecostal church to China. She has heard that officials go undercover and check things out in underground churches.

5. The Tribunal asked the applicant about her sons’ religious practice in China. She indicated that they do not go to church often. When asked why they do not attend church she indicated that they have to attend their classes and tuition.

6. The Tribunal asked the applicant if she had any other evidence to give. She indicated that no matter where she is she will preach the gospel. When she was in China she regarded it as a task. However now that she has experienced the holy spirit in Australia her perception has changed. She referred to chapter 9 of the Bible and said that she was filled by the Holy Spirit when she attended the conference in the [Suburb 2].

7. The Tribunal then took oral evidence from the second named applicant. The applicant remained in the hearing room while he gave his evidence.

8. The Tribunal asked the second named applicant about his Christian practice in China. He indicated he started going to the church as a child. He went with his grandmother every Sunday. He indicated his church was next to his place in Fuzhou and so he went every Sunday. He met the applicant in a church in a rural area, [Location 1] Church. His aunt introduced them at the church. He went with his aunt to meet the applicant. The Tribunal asked him if he was a committed Christian in China. He indicated that he was ‘okay’.

9. The Tribunal asked the second named applicant about his wife’s preaching in China. He indicated that, in the beginning, she preached at the [Location 1] Church. She then moved to the [Location 2] Church where she stayed for longer. He could not remember any other church where she preached. The Tribunal asked if he knew of any other churches in the area. He could not give the names of any other churches. When asked why not, he indicated he could not pronounce the church names. He thought the applicant and others took turns preaching at various churches. However he stated that the main church she preached at was [Location 2]. He stated that she was preaching at that church before they came to Australia.

10. The Tribunal asked the second named applicant about the protest in which the first named applicant was involved. He asked the Tribunal if it had referred to a protest. When the Tribunal confirmed this indicated he could not remember her being involved in a protest. The Tribunal indicated to the second named applicant that his inability to remember her involvement in a protest may raise a serious concern as it was claimed this was the reason why he and his wife came to Australia. He indicated that he rarely went to her church because he was living in Fuzhou. The Tribunal asked if they had both lived together in Fuzhou. He indicated that he lived in Fuzhou with their children and he took them to church nearly every Sunday.

11. The Tribunal asked the second named applicant why he was not baptised until he arrived in Australia. It explained that his wife had indicated that it was because he did not have a regular church. The second named applicant then indicated that he only went to the church next door if he could not find his mother. He went there looking for her. The Tribunal raised with the second named applicant its concern that this was inconsistent with his evidence that he went to church nearly every Sunday. It indicated that it may not accept he was a Christian in China. He indicated he was really busy and his wife did not visit him very often. He then indicated that maybe he was not really so devoted.

12. The Tribunal then invited the applicant to comment on or respond to information it may consider would be the reason, or part of the reason, for affirming the decision under review. The Tribunal explained that the applicant could seek additional time to comment on or respond to the information and that it would consider whether it was reasonable to provide her with additional time. The applicant did not seek additional time.

13. The Tribunal provided to the applicant the particulars of the oral evidence provided by the second named applicant who initially indicated that he attended the same church regularly he had done so since he was a child. It explained that this was relevant because it was inconsistent with her evidence that he had not been baptised in China because he did not have a regular church. It was also inconsistent with her evidence that he did not attend church regularly because he was focused on his career. The Tribunal explained that it may find the inconsistencies in the evidence raises concerns about the reliability of the applicants’ evidence and this may cast doubt on the claims. It explained that if it did not accept their claims about their practice in China it may not accept that they are genuine Christians and it would then affirm the Department’s decision. The applicant indicated that her husband was a Christian when he was a child because he followed his grandmother. But as an adult he was not as devoted and believing in the faith. She indicated that when he was in Fuzhou he went to the [Location 4] Church where her mother-in-law attended.

14. The Tribunal then provided the applicant with the particulars of the second named applicant’s oral evidence regarding his knowledge of her claims to have arranged and participated in a protest. It explained that the second named applicant’s lack of knowledge about her involvement in the protest is relevant because it may cast doubt on her claim. It explained that if it relied on the second named applicant’s lack of knowledge of her involvement in protests it may form the view that they had not taken place. It explained that this may cast doubt on the reliability of the applicant’s evidence. It explained that if made findings that the protest had not taken place it may not accept that the applicant was a Christian preacher in China. It may find that she had fabricated those claims. The applicant indicated that at the time the second named applicant was working in Fuzhou. He was not aware of the church and protest activities. She acknowledged he did not know the place where the protest had taken place. She stated that she was living in Pingtan at the time.

15. The Tribunal then took oral evidence from [Rev A]. He told the Tribunal that his church helps believers who believe in Jesus Christ. The applicants came to his church because of their background of fear. His church provided them with pastoral care. His church is committed to supporting the applicants as he believes they are committed to serving God. He wants to train the applicant to be a pastor, because there are many more Chinese in Sydney now, but this will depend on whether she gets the visa. He hopes they can stay. He has had his church over 30 years. He explained that he sends the Wechat messages to China but the applicant helps him with the words. He can have a conversation in Mandarin but he does not read and write in Mandarin.

16. The Tribunal asked the applicants if they had any other evidence to give. They had no further information to give to the Tribunal. The representative had no submissions to make.

    CRITERIA FOR A PROTECTION VISA

17. 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.

18. 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.

19. 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).

20. 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.  

21. 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

22. 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

23. The applicant provided to the Department a copy of her Chinese passport issued in Fujian [in] 2007. She brought to her Tribunal hearing her Chinese passport issued in Sydney [in] 2017. There was an issue concerning another passport which was used in an attempt to open a bank account in Australia. While that passport has the same biodata as the passport provided with the protection visa application, it has a different photograph. The applicant’s use of that passport became the subject of criminal charges because the Department’s Document Examiner assessed that passport to most likely be fraudulent. The Tribunal accepts the applicant’s oral evidence that those charges were dismissed and it makes no adverse findings on the basis of the issues arising from the Document Examiner’s findings.

24. The Tribunal notes the delegate found the applicant had provided personal identifiers to the Department; fingerprints, a digital photograph and her signature. The delegate utilised the Department’s various systems in regard to her claimed identity and was satisfied that she had provided sufficient evidence of her identity and that it was consistent with her narrative and biometrics. Having considered this, the Tribunal is satisfied the applicant is a citizen of China and it will assess her claims on this basis. The Tribunal finds that she is outside her country of nationality. There is no evidence to suggest that she has a right to enter and reside in any country other than her country of nationality.

25. The Tribunal also finds that the second named applicant has provided sufficient evidence to satisfy the delegate as to his identity. There is a copy of his Chinese passport attached to the Department’s file. On the basis of that evidence the Tribunal is satisfied second named is also a citizen of China and that he is outside his country of nationality. There is no evidence to suggest he has a right to enter and reside in any other country.

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

26. The applicant has claimed that she was a preacher for 13 years in Pingtan County, Fujian Province, China before travelling to Australia. She has claimed that she was brought up in a Christian family and went to a theology college, [Institution name 1], in Changshan District, Fuzhou, Fujian Province where she completed a diploma in the period September 1997 to July 1999. In her written application she claimed to have worked as an Assistant Preacher/Preacher in 2 churches, [Location 1] and [Location 2] in [Town 1], Pingtan County. In her oral evidence she claimed to have preached at several different churches. The applicant claimed that in August 2015 she was involved in organising protests because the authorities were planning to remove Christian crosses from the [Location 3] Church. She claimed that she was taken to the police station where she was threatened and made to sign an undertaking. She claimed that after her release she organised other protests. She claimed that before the subsequent protests the police visited her home but she avoided arrest because her family was at a friend’s home until she and her husband left China [in] November 2015.

27. The applicant has claimed that since arriving in Australia she and the second named applicant have been attending [Church 1] in Sydney where she has become involved in providing pastoral care for the elderly and sick and preparing Wechat material for [Pastor A] to send on Wechat. She claimed that she has now seen a different way of worshipping, particularly after attending a conference in the [Suburb 2] and she is now speaking in tongues. She claimed that if she returned to China she will attend the underground church and will take the things she learned from the Pentecostal church in Australia to China. She has also claimed that she will protest and preach on her return.

28. For the following reasons the Tribunal is not satisfied that the applicant was an assistant preacher/preacher in China or that she and the second named applicant were practising Christians in China.

29. The applicant told the Tribunal that she was taken to the police station for her involvement in a protest in August 2015. She told the Tribunal that her husband’s relatives came to the police station after she was arrested. She also told the Tribunal that she then discussed this with her husband (the second named applicant) and asked him to start the process of escaping because she did not want to preach in an environment where there was no freedom and she felt she was being bullied by officials. However when the Tribunal asked the second named applicant about her involvement in protests he could not remember. When the Tribunal gave the applicant an opportunity under s.424AA to comment on his evidence she merely said that he was working in Fuzhou at the time and was not aware of her activities and protests. This is inconsistent with her own oral evidence to the Tribunal. The Tribunal finds this particularly problematic given that the applicant has claimed that it was her arrest after protesting that led her to discuss with the second named applicant the process of escaping because she did not want to preach in an environment where there was no freedom. The Tribunal is of the view the second named applicant’s lack of knowledge of her involvement in protests cast significant doubt on the claim. This raises concerns about the reliability of the applicant’s evidence.

30. The Tribunal also finds the applicant’s oral evidence about her leadership and involvement in the preparation of protests to be unpersuasive and lacking in detail. It notes she could not remember the name of the church, the subject of the protest, nor its address. Her oral evidence about the sequence of events was initially different to her written submission. The Tribunal raised this issue with her and she merely apologised for this. The Tribunal is of the view that when asked to be more specific about her leadership role in the protest, her oral evidence was not reflective of a person who had been actively involved in organising a protest against the authorities’ decision to remove a crucifix. She merely repeated that she was one of the leaders and the protest was held outside the church. When asked how she could organise a protest if she was not aware of the church name or address she merely indicated that they were familiar with the location of the church. When prompted to give more detail about her involvement and the protest she merely indicated the leaders had a discussion about where the protest should be held and decided to make demands of the officials by stating “you shouldn’t take the cross down”, and that they demonstrated, protested and said prayers. Having considered all of the applicant’s evidence on this issue, the Tribunal is not satisfied the applicant was involved in organising a protest against the removal of a crucifix, or that she participated in such a protest. It has formed the view the applicant has manufactured this evidence.

1. The Tribunal has also considered the applicant’s evidence in relation to the churches at which she purportedly preached. In her written application she stated that she preached at 2 churches, [Location 2] and [Location 1]. However as recorded in the delegate’s decision record in her interview she indicated that she had worked as an assistant preacher at 16 churches. The Tribunal notes she repeated this claim in her oral evidence at the hearing. However when country information was put to her indicating that there were only 5 registered churches on Pingtan Island, the applicant merely stated that some of the churches she preached at may not have been registered as they were not very big. This is despite claiming to have been trained at a state sanctioned theology college to preach and to preach at state sanctioned churches. The Tribunal also notes from the decision record that when asked what type of churches the graduates from her college preached at, she indicated ‘underground church’. When the Tribunal raised the concern about the reliability of her evidence on this issue, she merely apologised and indicated she was nervous and muddled because of the passport issue. She claimed she would not lie and that she had given the delegate more detail as when asked about her Christian practice she said that she attends prayer group, Bible study and spreads the gospel.  The Tribunal has considered her explanation but is of the view that, if it was the case she had studied in China at a state sanctioned theology college for 2 years and preached for 13 years, it is reasonable to expect that she would have been able to give the delegate more detailed, persuasive evidence. The Tribunal also finds it problematic that the applicant has suggested that the state sanctioned college was preparing its graduates for underground church. It is of the view this casts serious doubt on her claim to have been trained at a state sanctioned college to preach in TSPM churches as she has indicated to the Tribunal.

2. The applicant showed to the Tribunal her original graduation certificate said to be from [Institution name 2] dated [July] 1999. The delegate did not accept that this was a genuine document given his concerns about her credibility and the prevalence of fraudulent documentation in China. He was not satisfied that her description of the college was persuasive. The Tribunal raised this issue with the applicant noting the name of the college recorded on her graduation certificate appeared to not correspond with the name she provided in her visa application. It noted that the delegate recorded that she did not appear to be familiar with the buildings and nearby landmarks. It also noted that it was not able to locate the college on the internet. The applicant then claimed that the college had since been demolished. She indicated that there is now a new college, [Institution name 4], and she gave a different [address]. The Tribunal notes however that during the hearing, while it was able to locate on the internet [Institution name 1], located at [Road name], Cangshan Qu, Fuzhou, it was not able to locate [Institution name 4]. Given these concerns and its concerns about the applicant’s evidence that she trained at a college which prepared its students to preach at underground churches, the Tribunal also has concerns about whether her graduation certificate is reliable evidence.

3. The Tribunal also notes the applicants’ evidence about the second named applicant’s attendance at church in China is inconsistent. The applicant told the Tribunal that her husband was not baptised in China because he did not have a regular church as he was busy focusing on his career. However in his oral evidence the second named applicant initially told the Tribunal that he started going to the church as a child, and that his church was next to his place in Fuzhou and so he went every Sunday. When it was put to him that the applicant had given somewhat different evidence he changed his testimony and said that he only went to the church if he could not find his mother. He then indicated that he was not practising because he was really busy and maybe he was not really so devoted. The Tribunal gave the applicant an opportunity to comment on the inconsistencies in the evidence on this issue. It explained that it may find the inconsistencies raise concerns about the reliability of the applicants’ evidence and this may cast doubt on the claims. The applicant indicated that her husband was a Christian when he was a child because he followed his grandmother but as an adult he was not as devoted and believing in the faith. She claimed however that when he was in Fuzhou he went to the church where his mother attended. The Tribunal is not satisfied the applicant has adequately explained the inconsistencies in their evidence. It has concerns that the second named applicant’s intial assertion to the Tribunal that he attended church regularly raises concerns about his credibility and the reliability of his evidence. Having considered the evidence overall the Tribunal is not satisfied the second named applicant did attend church in China.

4. Having considered the evidence overall the Tribunal is not satisfied the applicants were Christians in China. It does not accept that the applicant was trained to be a preacher and that she preached at 2 (or 16) churches in Pingtan County. Nor does it accept that she prepared and led protests against the removal of a crucifix on [Location 3] Church. It is therefore not satisfied that she was arrested and taken to the police station, made to sign an undertaking and warned that if she participated in protests again she would be arrested. It has considered the claim that the applicant was baptised in China but it is not persuaded by this because her evidence about her baptism is inconsistent and unsubstantiated. It has been stated that she was baptised in 1996 but she also indicated to the Tribunal that it was when she was [age] (in 1998). Nor does it accept that she and the second named applicants were brought up in Christian families. Having found that it does not accept the applicant was involved in leading protests against the removal of a crucifix in China, the Tribunal is not satisfied she came to the adverse attention of the authorities in China. It finds the applicant has fabricated all of these claims.

5. The Tribunal has next considered the evidence regarding the applicants’ Christian practice in Australia. The Tribunal notes from the delegate’s decision record, provided to it by the applicant, that the delegate found the applicant’s responses in regard to her general religious beliefs were not commensurate with her claimed religious background, 2 years of theological college and 13 years as a preacher. It notes, nearly 3 years later, that she was able to give to the Tribunal more oral evidence about Christianity however it is of the view that evidence was not reflective of a Christian with 2 years’ theological training, 13 years’ preaching and 3 years’ Christian practice in Australia. It has taken into account that she was nervous and her mind went blank during the delegate’s interview but it is not satisfied this adequately explains her lack of knowledge given her claims to have been a Christian since childhood and a trained preacher.  While it finds her explanation to the Tribunal of the difference between the new and old Testaments somewhat basic, on the basis of the letters and oral evidence of [Pastor A] of [Church 1], the Tribunal accepts that the applicant has been involved in church activities in Australia. [Pastor A]’s correspondence indicates the applicants joined [Church 1] [in] December 2015, after they made their visa applications. The Tribunal accepts [Pastor A]’s evidence that the applicant has been assisting with the preparation of Wechat text which [Pastor A] sends, and serves as a member of the pastoral team. It accepts she visits the sick and elderly. It also accepts [Pastor A]’s evidence that the second named applicant has served as a deacon. However given the serious concerns about the applicants’ credibility, the Tribunal has serious concerns about the motivation of the applicants. While the Tribunal accepts that [Pastor A] believes the applicants are genuine Christians, the Tribunal is not satisfied that this is the case. It finds the fabrication of the applicant’s claims to have attended theological college, preached for 13 years and been involved in leading protests against the removal of crucifixes to be highly concerning and to cast doubt on the reliability of her claims to be a genuine Christian. Given these concerns, while the applicants have been participating in church and Christian activities in Australia, the Tribunal is not persuaded the applicants are genuine adherents of the Christian faith. Considered overall the Tribunal is of the view the applicant has participated in Christian activities in Australia solely for the purpose of strengthening the protection claims.  Accordingly in considering whether the applicant has a well founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), the Tribunal has disregarded the applicant’s participation in Christian activities in Australia. It also finds the second named applicant has participated in Christian activities in Australia solely for the purpose of strengthening the protection claims and disregards his conduct in its consideration of whether he has a well founded fear of persecution in China because of his religion.

6. While the applicant claims that she will practice in an underground church if she returns to China and that she will want to share her experiences of Pentecostal Christianity in China, the Tribunal is not satisfied the applicant will practice as a Christian if she returns to China. Nor does it accept she will protest or preach, mainly because it has not accepted she has done this in the past.  It accepts that she may have attended the conference in the [Suburb 2] where she witnessed speaking in tongues. However it considers her oral evidence to the Tribunal about her subsequent practice somewhat unconvincing and vague. It is not satisfied that she will practice speaking in tongues if she returns to China.

7. The second named applicant admitted to the Tribunal that he was not really so devoted in China. While the Tribunal accepts [Pastor A] baptised the second named applicant in October 2016, it is not satisfied the second named applicant will continue to practice Christianity if he returns to China.

8. The Tribunal has concluded that the applicants are not genuine adherents of the Christian faith. It is not satisfied that either applicant will practice Christianity if they return to China, either at the state sanctioned church or the underground church.

9. The Tribunal notes the applicant’s evidence that prior to coming to Australia the second named applicant purchased a property, the mortgage of which is paid by money transferred from Australia to China. The applicant’s children and father-in-law currently live in the property. The Tribunal notes the applicant’s evidence that the second named applicant did not sell the property in China before travelling to Australia because he intends to keep it. The Tribunal is of the view this suggests that the second named applicant is not fearful of returning to China. It also raises serious concerns that the applicants’ travel to Australia was motivated, not because they were fearful of the authorities as a consequence of the applicant’s involvement in leading protests against the removal of crucifixion, but for the purpose of securing employment and transferring funds to China to pay the mortgage on the property.

10. On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of religion, or for any other reason. It is not satisfied there is a real chance that she would be persecuted for reason of religion (or for any other reason) and the real chance of persecution relates to all areas of China.  Therefore, she does not meet the definition of refugee set out in the Act.  Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

11. The Tribunal is also not satisfied the second named applicant has a well-founded fear of persecution for reason of religion or for any other reason. It is not satisfied that there is a real chance he would be persecuted for reason of religion (or any other reason) and the real chance of persecution relates to all areas of China.  Therefore, he does not meet the definition of refugee set out in the Act. Accordingly, the Tribunal is not satisfied the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Are the applicants entitled to protection under the complementary protection criterion?

12. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether she may nevertheless meet the criterion for the grant of a protection visa under the complementary protection criterion.

13. As indicated above, the applicant has not satisfied the Tribunal about her claims to have been an assistant preacher/preacher in China or to have been arrested and taken to the police station because of her involvement in a protest. It has seen evidence that she has been attending [Church 1] in Australia but it is not satisfied she is a genuine adherent of the Christian faith. It is not satisfied she will practise as a Christian in China.

14. The Tribunal has found that the applicants’ participation in Christian activities in Australia has been solely for the purpose of strengthening the protection claims and has disregarded the conduct for the purposes of assessing whether either of the applicants has a well founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a). However it must consider this conduct in its assessment of whether either of the applicants is entitled to protection under the complementary protection criterion. While the Tribunal accepts the applicants have been involved in Christian activities at [Church 1] there is no evidence before it to suggest that the authorities in China are aware of this conduct or that either of the applicants will come to the adverse attention of the authorities because of this conduct. It is not satisfied that either of the applicants will face a real risk of suffering significant harm in China because of this conduct.

15. The Tribunal is not satisfied there is any other evidence to suggest the applicant will be harmed in China for any other reason. It is satisfied the applicants will have adequate accommodation if they return to China, the apartment purchased by the second named applicant, and they will be able to secure employment and subsist.

16. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that the applicant has suffered significant harm in China or that there is a real risk that she will suffer significant harm if she returns to China.

17. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

18. The second named applicant did not make his own claims. As discussed above the Tribunal is not satisfied the second named applicant is a genuine adherent of the Christian faith. It is not satisfied he will practise Christianity if he returns to China. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that there is a real risk he will suffer significant harm if he returns to China.

19. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

    CONCLUSION

20. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. Nor is it satisfied the second named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

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

22. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not hold a Protection visa, the second named applicant is unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

23. 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.

    …

    
    

No official Christian churches were located on Dalian Island but 5 registered churches were found on neighbouring Pingtan Island. The following churches on Pingtan Island were located using Google translation and Google Maps (see Map 3). Official Christian churches on Pingtan Island‟ 2011, Google maps website Accessed 28 February 2011 – Attachment 28