1614650 (Refugee)

[2019] AATA 6437

1614650 (Refugee) [2019] AATA 6437 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614650

COUNTRY OF REFERENCE:                   China

MEMBER:Irene O’Connell

DATE:27 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2019 at 10:37am

CATCHWORDS        

REFUGEE – protection visa – China – religion – Christianity – membership and activity in underground Catholic church – arrested, detained and mistreated by police – evidence weak, hesitant and lacking in detail – country information – status of Christianity and Catholic church in China and Fujian – closures of underground churches – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2016 to refuse to grant the applicants a protection visa under s.65 of the Migration Act 1958 (the Act). The applicants, who are wife and husband, applied for a protection visa on 11 November 2015 after arriving in Australia [in] November 2015 on [temporary] visas.

2. The applicants are seeking Australia’s protection on the basis of their religion. They claim to be members of the underground Catholic Church in China. The first named applicant claims to have been arrested and detained in China because of her involvement in the Church. They claim to fear persecution should they return to China by reason of their religion.

3. For the reasons that follow the Tribunal has concluded that the applicants are not persons in respect of whom Australia has protection obligations and affirms the delegate’s decision.

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

2. 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.

3. Section 5H of the Act defines a refugee, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

4. Under s.5J(1) of the Act a person is taken to have 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.

5. Section 5J(2)–(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:

   (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. 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’).

7. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) as follows. 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.

8. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm or where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.  

CLAIMS AND EVIDENCE

Claims as set out before the Department  

1. The Tribunal has before it the Department file containing the applicants’ protection visa application, a recording of the applicants’ interview with an officer of the Department held on 17 August 2016 and the decision record of the delegate.

2. Also included on the Department file are the following documents submitted by the applicants in support of their claims. These included:

   ·Copies of their passports

   ·Translated copy of the first named applicant’s Certificate of Qualification of [Subject] issued [in] September 2012

   ·Translated copy of the first named applicant’s notice of detention issued by the Ma’anshan Municipality Public Security Bureau (dated [August] 2015)

   ·Translated copy of the first named applicant’s Anhui Province Residence card issued [in] September 2015

   ·Translated copy of the first named applicant’s bail notice issued by the Ma’anshan Municipality Public Security Bureau (dated [September] 2015)

   ·Translated copy of the first named applicant’s [medical] records (dated  [October] 2015 )

   ·Letter of support from [Person A] from [a Church group] (dated [August] 2016)

   ·Translated copy of a letter of support from [Person B] a friend from [a] Church (dated [August] 2016)

   ·Letter of support from [Person C], President of [a Church] (dated [August] 2016)

3. In their application for a protection visa, the applicants list their nationality as Chinese and religion as Roman Catholic.  The first named applicant (the applicant wife) lists 11 years of education and states she has completed her secondary schooling. She states that she worked as an accountant in China until November 2015. The second named applicant (the applicant husband) lists 11 years of education and states he has completed his schooling up to Senior Secondary School. He lists his occupation as [deleted].

4. The applicants have [children] who live in Fuqing City, Fujian Province, China. The applicants’ respective parents and siblings also live in Fuqing City.

5. The first named applicant provided a Statutory Declaration dated 11 November 2015 in which she states that in July 2013, at a time when she was experiencing a personal crisis, a friend [Ms D] introduced her to an underground Bible study group. After attending Bible study sessions at [Ms D]’s house for a couple of months she was baptised in October 2013. Her husband also began attending classes in June 2014 and was baptised in September 2014.

6. She goes on to state the following:

   9. In October 2014, the underground church established a new women’s group in [name] District, Ma'anshan City. [Ms D] was the leader of the women’s group. I was appointed as the accountant to take responsible for financial matters of the women's group. From then on, I became the most important assistant of [Ms D], managing the money, which was mainly donated by church members, to develop our women's group or help those church members who were subjected to difficulties

   10. From [date] August to [date] August 2015, both my husband and I jointly toured [Country]. Unexpectedly, I was arrested by the Public Security Bureau (PSB) in Ma’anshan not long after we returned to China. On [date] August 2015, many police raided my home in the evening. The police said that I was suspected to play an important role in the illegal organization. They searched my home, took away my computer as well as some materials including my photos with [Ms D]. I was then taken to the PSB, and subjected to interrogation. During the interrogation, I realized that [Ms D] had already been arrested by the police because she was found to organise young female students to have a Bible study class during summer school holiday. Owing to confessions of some other students who had also been arrested, the police found my close relationship with [Ms D]. As a result, I came to the particular attention of the PSB.

   11. I was sent to the detention centre afterwards. I was then detained for more than one month. The police tried to force me to confess my involvement in the underground church, and the police also wanted me to expose how to contact the priests, nuns, as well as other members of the underground church, and particularly activities of [Ms D]. However, I refused to say anything about the underground church. As a result, I was mistreated or tortured by the police or other criminals at the detention centre.

   12. In order to save me, my husband had to find my mother's friend [Ms E] who had wide social contacts in Ma'anshan. Through [Ms E]'s contacts, my husband bribed the police who was in charge of my case. Therefore, I was released on bail [in] September 2015. But, I had to be ready for accepting further investigation from time to time.

   13. My husband and I knew that this would be the only chance for us to escape from persecution. Therefore, we asked [Ms E] to secretly organize our trip to the overseas. On the other hand, I pretended to carefully follow instructions of the police, reporting to the PSB as their requirements.

   14. On [date] November 2015, arranged by [Ms E] and her friends, my husband and I finally got a chance to leave China from Beijing together with a tour group. We arrived in Australia [in] November 2015.

Claims as set out before the Tribunal 

1. The applicants by written submission (dated 29 July 2019) provided the following material:

   ·Letter of support from Father [F], Chaplain Pastor of [a Church] (dated [July] 2019)

   ·Letter of support from the President of [a Church] (dated [July] 2019)

   ·Photographs of the applicants attending church activities in Australia

   ·The United States Department of State – Bureau of Democracy, Human Rights and Labor – Report for China: International Religious Freedom Report 2018

2. The applicants gave oral evidence to the Tribunal at a hearing conducted on 6 August 2019. The hearing was conducted in the Mandarin and English languages. The applicants were represented at the hearing by their migration [agent].

3. The applicants presented their passports to the Tribunal. It was noted that both passports were expired. The applicants stated that they had not renewed their passports.

4. In response to questions about her religious beliefs the applicant wife stated that it could be summed up in 12 sentences and proceeded to slowly recite the Apostles Creed. When asked if she could explain what her religion meant to her personally she stated that it means everything to her and is her whole life. When asked what practices she engaged in as a Catholic she stated that she prays every day attends Mass on Sundays and attends other church activities.

5. When asked when she became involved in the Catholic Church she stated that sometime around May /June 2013 she began attending bible study classes and was baptised in October 2013. She stated that she was persuaded to attend these classes after undergoing a personal crisis and a friend who was Catholic explained that she could overcome all hardships through belief in God and the afterlife.

6. She stated that the classes had about 20 students and three different teachers and they learnt bible stories and questions and answers about the main principles of the Catholic religion. She mentioned the seven sacraments and the 10 commandments. She stated that she was baptised by a priest and after her baptism attended church and Mass.

7. When asked about other religious involvement the applicant referred to her involvement in a women’s group which entailed visiting the sick and helping the poor. When asked how this distinguished the group as something of the underground Catholic Church she stated that they also prayed and read the Bible together.

8. When asked if she could elaborate further on her religious beliefs and practices she stated that she would prefer to respond to specific questions rather than just elaborate on her beliefs and practices. The Tribunal indicated that it was for the applicant to make out her case to the Tribunal and thus if she could just tell the Tribunal what her religion meant for her.

9. The applicant wife stated that her faith is important to her and gives her joy and peace. Her faith gives her a sense of her own worth and value and gives meaning to her life and that her religion enables her to cultivate her spirit and grow daily.

10. When asked about the difference between the underground church and the official or patriotic church she stated that the underground church would meet in members’ houses secretly and wished to spread the gospel.

11. In response to questions about her children she stated that they were baptised but that they do not yet know much about their religion and are not involved in any religious activities. She stated that they live with her parents-in-law.

12. When asked about her arrest and detention she recounted her experience as set out in her written statement. She stated that she was required to report to the police after she was released. Asked why her passport was not taken from her as part of this process she stated that her husband paid a significant bribe to the police through [a] person who worked at the police station and as such she was not required to hand in her passport. She stated that she was tortured in detention.

13. The Tribunal put to the applicant the country information set out below at paragraph 49 in respect to the probation on a person exiting China with outstanding charges and pending a trial.  The Tribunal also put to the applicant that she did not seem to have a profile of someone that the police would pursue as her role in the women’s group was as an accountant. The applicant stated that she was the direct assistant to the leader of the group.

14. The applicant husband provided the following evidence in respect to his religious beliefs. He stated that in June 2014 he was involved in a car accident in which his car was written off but he miraculously escaped unharmed. He stated that his wife had told him that she was praying for him and from this event he began to take an interest in religion and he began attending classes and also attended Mass. The applicant explained the Mass in terms of how the bread and wine changed into the body and blood and a sermon by the priest.

15. When asked about his involvement in other sacraments other than confession and Mass he said he did not have any involvement. He stated he not been confirmed nor had he had the sacrament of marriage. He stated that this was not necessary as he was already married.

16. He stated that at the beginning he was not deeply into his faith but over time his involvement has increased and he attends church weekly and helps out at the church with odd jobs and does volunteer work. The Tribunal asked the applicant how he practised his religion. He stated that in addition to attending church he reads the Bible. In respect to the sacraments he stated that he goes to confession about every 2-3 months to tell his sins. He stated that in China he was not able to do that as there are not many priests.

17. Asked why he attended the underground church rather than the official church the applicant stated that the underground church has the true bloodline going back to God. He stated that the official church is not the true church and that there is no freedom or human rights in the official church.

Post hearing submission

1. In a post hearing submission the applicant’s wife provided a statutory declaration dated 8 August 2019. She restated that she was introduced to the Catholic religion at a time when she was experiencing depression and was suicidal and that once she discovered the “Almighty Lord” she recovered. She states that her husband had a similar experience and that this was their motivation for becoming Catholics.  She stressed that they are genuine Catholics.

2. In respect to her involvement in the underground Catholic Church the applicant restates her involvement in a women’s group as a direct assistant to the leader and that this was the reason for her arrest.

3. In respect to issues raised at the hearing the applicant states the following:

   I mentioned my husband and my experiences with and motivations for converting to Catholicism because I want to make certain to the Tribunal that my husband and my devotion to Catholicism is genuine. We owe our lives to the Lord and we recognise our duties to repay Him by diligently and loyally following Him. In doing so, I also hope to address the Tribunal’s question, during the hearing, for me to “describe my faith”. I feel this is necessary because the Tribunal seemed not convinced by my and my husband’s explanations of our faith during the hearing; the Tribunal specifically stated it wanted “more” from us. However, I think the Tribunal is approaching the concept of faith in the wrong way. I believe faith is a very abstract concept that has different interpretations for every religious person. To me, my faith is my life that I live for the Almighty Lord. It is not easy to put into words for me to describe my faith, but I think it would be most appropriate for me to point to all the experiences I have in my life that brought me closer to the Almighty Lord – and for me, the most defining experience was when He saved my life.

   I recognise that marriage is one of the sacraments to my faith, and I recognise that I did not hold my marriage ceremony in the ritual of the Roman Catholic Church. However, I want to make certain that my marriage to my husband has been officially recognised by Father [F] who ensured that civil marriages can be recognised by the Roman Catholic Church. It was also under his guidance and advice that my husband and I needed not to have an official Roman Catholic marriage ceremony because our marriage was already recognised by the church. When we were in China, we already had the idea of having another marriage ceremony in the ritual of the Roman Catholic Church, but it was very difficult for us to find a priest.
   …
   …I want to comment on my husband’s confirmation. My husband received his confirmation at the same time as he was baptised. I comment this because I hope to eliminate any concerns the Tribunal may have about this. Having carefully reviewed the audio recording for our hearings, I realise over the course of the hearing my husband had given conflicting responses about his confirmation, but he was confused by some of the questions at the time during the hearing and he hoped to clarify the issue here.

1. A support letter was provided from [Ms G] who states that the applicant is a truly kind and honest Catholic and assisted her to return to the Catholic community. Ms [G] states that she was a practising Catholic in China but due to work and life pressures was not practising her religion in Australia until her encounter with the applicant who encouraged her to do so.

2. The applicants’ migration agent made a further submission dated 8 August 2019. The submission consisted of six original diaries belonging to the applicant wife, with an attached letter to the Tribunal. The letter states that the applicant wife wrote diary entries about the teachings of the Roman Catholic Church after each and every personal study session. The diaries are filled with records of her personal studies and understandings, and were submitted in support of her claim that she has consistently, continually and diligently participated in her studies of the teachings of the Roman Catholic Church.  The Tribunal notes that the diary entries are dated from 2017 to 2018.

Country information

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.

2. The Tribunal has had regard to the DFAT Country Information Report People’s Republic of China dated 21 December 2017:

   3.15 China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

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

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

   Catholics

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

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

   3.45 In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. DFAT understands this is no longer required in areas where the Catholic Church has built trust with local officials over time.

   3.46 Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

3. The Tribunal has also had regard to more recent country information specific to the province of Fujian and sourced from Reuters, China Aid Association and Bitter Winter. In an article titled ‘Msgr. Guo Xijin and blackmail in the diocese of Mindong after the China/ Holy See agreement’ from Asia News (4 March 2019) it states that:

   The Fujian Diocese of Mindong has over 90,000 Catholics, of which at least 80,000 belong to the underground Church, and is served by 45 priests, 200 nuns, 300 consecrated lay people and hundreds of lay catechists. There are only 12 priests of the Patriotic Catholic Association in the diocese.

4. In the article ‘Underground Catholic Churches Closed in Fuzhou Archdiocese’, Bitter Winter (17 December 2018) it was reported that:

   In Fuzhou city, in coastal Fujian Province opposite Taiwan, authorities have raided and harassed multiple meeting venues of the Underground Catholic Church on the grounds that “to hold gatherings, it is necessary to join the Chinese Patriotic Catholic Association (CPCA).” During the raids, believers were photographed and videotaped, and their personal information was registered. Plainclothes police took secret photos and videos of church clergy while they were changing into their clerical vestments.

   In late September, an underground Catholic meeting venue, which could accommodate more than 1,000 worshippers, was closed. According to the building manager, the Vatican-China deal of 2018 seems to have emboldened the Religious Affairs Bureau. Many underground meeting venues have been placed under surveillance, and priests are often summoned for questioning by the National Security Bureau.

   The building manager remains sanguine, saying, “We’re not afraid of being questioned. We didn’t do anything wrong. We want a separation of church and state. The government cannot control our beliefs.

   Around the same time, police in Fuzhou city’s Jin’an district shuttered a meeting venue in an eastside apartment building, saying, “believers must hold their gatherings at an official church (CPCA).” Parishioners at this chapel were required to present their documentation and were videotaped.

   In November, the local police limited the size of gatherings to a maximum of 50 people at a Catholic chapel in a basement in the Wanxiangcheng residential district. In addition, prior to gatherings, every believer must present their identification and register, or face the chapel being closed down.

   According to local believers, at least four chapels in Fuzhou city have been forced to close. At several other venues, the religious activities and number of congregants have been restricted. Believers have been forced to transfer to other chapels and change the time of their gatherings. Some congregations have arranged for people to stand guard during mass, in the hope of discouraging police raids.

5. In the article ‘And Persecution of Underground Catholics Continues’, Bitter Winter (12 January 2019) it was reported that:

   The Chinese government further uses the tentative agreement with the Vatican to force all underground churches to join state-approved ones. Never mind a nearly four-month-old provisional agreement with the Vatican – one that was supposed to ease decades-long tensions regarding the appointing of bishops – the Chinese Communist Party, or CCP, is upping its suppression and persecution of underground Catholic churches and believers.

   In early December, officers from a police station in Taining county of the prefecture-level city of Sanming in China’s southeastern Fujian Province stormed into a local underground Catholic church meeting place in order to arrest the church’s priest and nuns. When the mission failed, the officers threatened an elderly believer, saying: “If we can’t find the priest, then we will take all of you away.”

   The following day, the police once again descended on the meeting venue, conducting illegal searches of the dormitory and harassing the believers there.

   According to one believer, seals were placed over the door of every room inside the church. The statue of the Holy Virgin in the center of the courtyard was removed and the church’s cross dismantled.

   “The government says that we were holding illegal gatherings. They told us to join the Chinese Patriotic Catholic Association and that we have to raise the national flag and sing the national anthem in the future,” one believer said. “They are making us leave God and believe in them [the government].”

6. In ‘House Church in Fujian Shut Down 8 Times’ (24 March 2019), Bitter Winter reported that in 2018 Fujianese police intervened in the House of Bethel Church located in Fuzhou city requesting that the church be officially registered with the state’s governing religious body:

   In May 2018, officers from the local police station came to inspect the church on the grounds that it was “causing a disturbance to the public.” The police claimed the meeting venue didn’t have a religious activity venue registration certificate and ordered them to join the government-sanctioned Three-Self Church, or else be ordered to cease gathering altogether. The police also threatened them, saying all the Bibles and hymnbooks be removed or else tossed out by the authorities.

   Since the believers were unable to find a meeting venue at that time, they had no choice but to continue their gatherings there with great caution. To prevent police raids, after each gathering ended, they hid all the Bibles and hymnbooks. Soon afterward, personnel from the local fire department came to the church to conduct an inspection and sought to shut down the church on the grounds that “fire control measures were inadequate.”

   Since the church was founded, in 2006, it has continually had to find new congregation places to rent.

7. In ‘Fujian church experiences multiple raids’, China Aid Association (8 November 2018), China Aid reported that the Christian Yongfu Church in Fuzhou had been ‘harassed relentlessly by authorities over the past few months’ after the church refused to make building modifications. Accordingly:

   Yongfu Church, located in Fuzhou, has been raided eight times in the past two months. When the church refused to make modifications to their building in order to fit the Communist Party’s agenda, 40-50 city management officers went to a Christian’s home and threatened those there. He asked how the evil of cracking down on Christianity could be ignored by the central government. His father was taken to the police station, even though he had been through two bypass heart surgeries and a cerebral haemorrhage.

   The authorities also went to the church on Oct. 14 and 21 and ordered the Christians to no longer attend services there. They were reportedly very rude, and one of them bullied those gathered for the service. When they left both times, they said they would be back next week. Their electricity had been cut off.

8. In ‘House churches in Fujian, Jiangxi and Guizhou received government warning’, China Aid (19 May 2018) it was reported that ‘local governments in Fujian, Jiangxi and Guizhou sent out notifications shutting down the house churches and requiring the members to join the government sponsored Three-Self Church’. Reportedly some churches received written warnings while others received verbal warnings. According to the report:

   The Chinese officials have intensified the persecution against house churches since the beginning of this year even preventing the church members from gathering. In early May, a house church in Nanpin County, Fujian province received one of these notices. An anonymous local Christian said, “The officials from the county religious affairs bureau forbade us to meet. They said that our gatherings were illegal.

   They also told us that we should go to the Three-Self Churches if we wanted to meet. In fact, this church only has 20 to 30 regular members, who are all residents nearby. There are no outsiders.

   A local Christian named Lin said that the government has treated the house churches more and more harshly: “The persecution has escalated. The Communist Party members, civil servants, and teachers are not allowed to have religious beliefs. The government of Nanping is investigating local house churches and recording the personal information of the Christians.

9. The Tribunal also had recourse to A Background Paper of the Refugee Review Tribunal titled Catholicism in China and dated December 2012.

   Chinese Catholicism – state-sanctioned and underground – is generally more conservative than in other parts of the world, having largely bypassed the reforms of the Second Vatican Council of 1963-4, which modernised Catholicism. The conservative nature of Chinese Catholicism derives from the counter-Reformation version of Catholicism that Jesuit missionaries brought to China in the late 16^th century, which emphasised the contrasts between it and Protestantism.[1] Notwithstanding this, there is little definitive information available on the beliefs and practices of the official Catholic Church, and even less definitive information on those of the underground Catholic Church in China. Furthermore, on doctrinal matters, there appears to be little difference between the two churches and it is difficult to distinguish members of the underground and open churches solely on the basis of their practices and rituals.[2]  Like Catholics around the world, both the official and the underground churches believe in the truth of the Bible, as interpreted by the church, accept the authority of priests to administer the sacraments, practice the seven Catholic sacraments of baptism, eucharist (or communion), reconciliation (or confession), confirmation, holy orders, matrimony, and anointing of the sick, and believe in the concepts of sin, heaven, hell, salvation, miracles, god’s grace, and the importance and divinity of Jesus.[3] Similarly Mary is revered by Chinese Catholics, and a Marion Cult of devotion and prayer to Mary is strong in China.[4]

   In terms of the broader Catholic community in China, practising Chinese Catholics would normally be exposed to the Catholic practices of baptism and communion. Baptism is seen as important for Chinese Catholics, and they believe that only baptised Catholics can go to heaven. In areas where there is a shortage of priests, parents or grandparents are known to conduct a provisional baptism (daixi) for newborn infants by pouring water over the child’s head and uttering the ritual formula “I baptise thee in the name of the Father, the Son, and the Holy Ghost”.[5] When a priest becomes available, the child will be formally baptised. There are no standardised baptismal certificates issued within underground Catholic churches, nor are certificates issued as a matter of course. Such certificates might be an informal, hand-drawn document written in Chinese.[6] No information has been located on the issuing of baptismal certificates by the official Catholic Church of China.

   According to the Catholic news agency, Asia News IT, Chinese Catholics divide themselves into three categories according to the different levels of devotion: those who pray every day; those who go to mass every Sunday; and those who attend mass during the four principal feasts of the year: Easter, Pentecost, the Assumption and Christmas. ^[7]  Christmas sees the greatest participation, as Catholics from the official and underground churches prepare themselves during Advent with special prayer groups, confessions and novenas (nine days of private or public devotion in the Catholic Church to obtain special graces), and by preparing the Christmas hymns.[8]

   The three most popular devotions in mainland China are to the Sacred Heart of Jesus, Our Lady, and St. Joseph.[9] Devotions can be understood as external practices of piety that are not part of the official liturgy of the Catholic Church but are part of the popular spiritual practices of Catholics. Of these three, devotions to Our Lady (Blessed Virgin/Mary) figure prominently in Chinese Catholic practice. Marian apparitions play an important part in the Chinese Catholic spiritual imagination and in many Catholic homes portraits of Mary as a brown-haired European woman dressed in blue can be found. Because Catholic doctrine teaches that Mary acts as a direct intermediary between the adherent and God, for many Chinese Catholics, Marian devotion provides a legitimate way to circumvent the politics surrounding the breach between the official and underground churches.[10] In addition to the above traditional devotions, which are part of the core identity of Chinese Catholics, most Chinese Catholics pray the Holy Rosary daily.[11] In particular, reciting the Rosary is central to Marian devotion; one colloquial name for Catholics in the countryside of north China is Old Rosary Sayers.[12]

   While underground Catholics often argue that sacraments performed by official Church priests are invalid, on doctrinal matters there is very little difference between the two churches and it is difficult to distinguish members of the underground and open churches solely on the basis of their practices and rituals.[13] For example, the format and prayer involved in a Catholic baptism in the underground and official churches are the same. However, the underground Catholic Church is prohibited from performing baptism openly.[14]

   Unorthodox practices, such as quasi-magical practices of healing and exorcism, that seem more related to Chinese folk religion, have also been reported in rural Catholic communities which, being cut off from official Vatican control, have maintained significant autonomy.[15] 

   [1] Madsen, R. 2003, ‘Catholic Revival During the Reform Era’, The China Quarterly, vol. 174, pp. 476-7

   [2] Liu, William T. & Leung, Beatrice 2002, ‘Organizational Revivalism: Explaining Metamorphosis of China’s Catholic Church’, Journal for the Scientific Study of Religion 41:1, p.125 

   [3] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, pp. 86-90.

   [4] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, pp. 87-88.

   [5] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, pp. 54-56, 86-88.

   [6] Immigration and Refugee Board of Canada 2004, CHN42650.E – China: Whether underground Catholic Churches issue baptismal certificates; if so, in what language, 8 June

   [7] Huaide, Chang 2007, ‘Underground and Official Catholics prepare themselves for Christ’s birth’, Asia News, 19 December

   [8] Huaide, Chang 2007, ‘Underground and Official Catholics prepare themselves for Christ’s birth’, Asia News, 19 December Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, pp.1-2

   [9] Clark, A.E., 2006, ‘Two Chinese Churches? Or One? An Interview with Fr. Daniel Cerezo, Comboni Missionaries of the Heart of Jesus’, Ignatius Insight website, June

   [10]  Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, p. 88

   [11] Clark, A.E., 2006, ‘Two Chinese Churches? Or One? An Interview with Fr. Daniel Cerezo, Comboni Missionaries of the Heart of Jesus’, Ignatius Insight website, June  Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, p. 90

   [13] Madsen, Richard. University of California, San Diego. Department of Sociology. 26 January 2000. Telephone interview cited in Immigration and Refugee Board of Canada 2000, ‘Catholic Practice in China’, CHN33598.EX – China: Catholic Church and Catholicism in China; treatment of Catholics; relations between the underground and open Churches; differences between Catholic worship in China and elsewhere; differences in practice between the underground Church and the open Church; beliefs, practices, holidays and ceremonies; update to CHN33002.EX of 8 October 1999 regarding Christians in Fujian,27 January

   [14] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, pp. 86-8

   [15] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, p. 101

1. The Tribunal has also had regard to the following country research sourced from The Immigration and Refugee Board of Canada titled Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with official at airports (2011-February 2014) and dated 6 March 2014:

   The Entry-Exit Administration Law of the People’s Republic of China regulates the movement of people across China’s borders. Article 5 acknowledges that the state maintains ‘a uniform exit-entry administration information platform to achieve information sharing among relevant administrative departments’. Article 11 states that ‘Chinese citizens exiting or entering China shall present their own passports or other travel credentials and other exit-credentials to the exit-entry border inspection authorities for verification and comply with the prescribed procedures and may exit or enter China only after being permitted to do so upon verification’. Article 12 prescribes under which circumstances a Chinese citizen is prohibited from exiting China:

   (1) The Chinese citizen does not hold any valid exit-entry credentials or refuses or evades border inspection;

   (2) The Chinese citizen has not finished serving a criminal sentence or is the accused or a suspect in a criminal case;

   (3) The Chinese citizen is prohibited from exiting China as decided by a people's court for involvement in a pending civil case;

   (4) The Chinese citizen has received a criminal penalty for disrupting national border administration or has been repatriated by any other county or region for illegal exit from China, illegal residence or illegal employment and the prescribed period of prohibition from exiting China has not expired;

   (5) The Chinese citizen is prohibited from exiting China as decided by the relevant competent department of the State Council because the national security or interest may be compromised; or

   (6) Other circumstances as set out by laws and administrative regulations under which the Chinese citizen is prohibited from exiting China.

2. The Immigration and Refugee Board of Canada report also provides information about security and exit control procedures at Chinese airports.

   The representative of the Laogai Research Foundation wrote that the Chinese government checks the passports of citizens attempting to leave the country in order to ensure that they are suitable for foreign travel. Customs officials stamp the passports of citizens approved for foreign travel. Public security officials often confiscate passports held by individuals deemed unsuitable for foreign travel

FINDINGS AND REASONS

Country of reference

1. On the basis of the applicants’ passports presented to the Tribunal at the hearing the Tribunal is satisfied that the applicants are nationals of China. Accordingly, the Tribunal finds that this country is the country of reference with respect to the refugee criteria and the receiving country in respect to the complementary protection criteria.

Do the applicants have a well-founded fear of persecution should they return to China?

1. At the hearing the applicants’ did not impress the Tribunal in giving evidence which was weak, hesitant and lacking in relevant detail. They did not seem to be recounting actual lived experiences. The Tribunal put the applicants on notice that it did have concerns about the veracity of their claims to be members of the underground Catholic Church and the first named applicant’s claim to have been arrested and detained. As set out above at paragraphs 35-37 the applicants through their adviser provided a post hearing submission addressing issues raised at the hearing. The Tribunal has had regard to this submission in making its findings.

2. The Tribunal accepts that the applicants have since their arrival in Australia in 2015, participated in activities at [a] Catholic Church in [Suburb]. The Tribunal notes that they have provided letters of support and a considerable number of photographs of their attendance at various activities at the Church. Post-hearing the applicants provided six diaries which are said to contain “her personal studies and understandings”. Although these diaries are untranslated the Tribunal accepts that they are what they are claimed to be and notes that they are all dated for the period of 2017-2018. That is, they are evidence of the applicants’ attendance and undertaking of religious instruction here in Australia.

3. The Tribunal does not accept that they were involved in the underground Catholic Church in China and came to the adverse attention of the Chinese authorities because of this. The applicants claimed involvement with the underground Catholic Church in China is over a brief period of time immediately prior to their arrival in Australia. In the case of the first named applicant it was for a period of two years and five months. And in the case of the second named applicant it was a little over a year.

4. The Tribunal considers that the applicants’ oral evidence as to their religious practices and beliefs such as the first named applicant’s recital of the Apostles Creed, reference to instruction in the seven sacraments and 10 commandments and the second named applicant’s description of the Mass is consistent with their involvement in religious instruction in Australia. However neither applicant at the hearing made reference to aspects of Catholicism that would indicate an involvement with an underground Catholic Church in China such as for example the Rosary, Marian devotions or specific feast days. The country information set out above at paragraph 48 indicates that these aspects of the Catholic teachings are significant and characteristic of Catholics in the underground church in China.

5. In addition the Tribunal was not persuaded by the first named applicant’s evidence as to the existence of a women’s group and her claimed involvement in this group. Her evidence about the nature and purpose of the group was vague and unconvincing and her claimed involvement was not recounted as an actual lived experience. At the hearing when asked to describe the group, the first named applicant referred to visiting the sick, helping people and holding group meetings. When it was suggested that it could be any women’s group and was not specific to the underground Catholic Church the applicant stated that they also prayed together and read the Bible.

6. The Tribunal does not accept that the first named applicant was involved in a women’s group as she has so described. Nor does the Tribunal accept the consequential claim that her involvement in this group resulted in her arrest and detention. The Tribunal considers her claim to have been arrested and detained to be lacking credibility and not in keeping with the country information.

7. As set out above at paragraphs 43-47 the country information indicates that the Chinese authorities are clamping down on members of the underground Catholic Church but this occurs by way of raids on underground church gatherings and sites where these gatherings occur and involves detaining key figures such as priests and bishops involved in religious activities. In light of this country information the Tribunal considers it far-fetched that the authorities would come to the applicant’s house to arrest her due to her involvement as an accountant with a women’s group and would then detain her for a month.

8. The Tribunal makes this finding having had regard to the two documents provided by the applicant in support of her claim to have been arrested and detained. That is a Notice of Detention (dated [August] 2015) and a Decision on Guarantor Pending Trial (dated [September] 2015). The Tribunal therefore does not place weight on these documents noting that the delegate in the decision record indicates that he discussed with the applicant that such documents can be fraudulently made and obtained. Furthermore as discussed with the applicants at the hearing, country information such as that set out above at paragraph 49-50 indicates that a person with a pending trial would not be permitted to exit China. The Tribunal does not accept that the applicant did have outstanding charges and overcame the difficulties of exiting China by bribery.  

9. Considered collectively, the points set out above lead the Tribunal to reject the applicants’ claims that they were members of the underground Catholic Church in China and that the first named applicant was detained and tortured by reason of her claimed association with the underground Catholic Church through a women’s group.

10. The Tribunal notes that the applicants maintain that they are genuine Catholics and as set out above the Tribunal does accept that over the four years that they have been in Australia they have participated in activities with the Catholic Church at [Suburb].

11. The Tribunal is not satisfied that on returning to China the applicants would engage in religious practices in a manner of form that would bring them to the adverse attention of the Chinese authorities. The Tribunal makes this finding on the basis of their evidence at the hearing as to their level of religious practices and beliefs. Nor does the Tribunal accept that they would need to modify their beliefs or practices to avoid harm.

12. Accordingly the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

Is there a real risk that the applicants will suffer significant harm on their return to China?

1. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a) the Tribunal has considered the alternative criterion in s.36(2)(aa) that being whether on the evidence there are substantial grounds for believing that there is a real risk that the  applicant will suffer significant harm as a necessary and foreseeable consequence of being removed to China.

2. For the reasons given above, the Tribunal does not accept that the applicants face a real risk of significant harm as a consequence of being removed from Australia to China.

3. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

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

DECISION

1. The Tribunal affirms the decision not to grant the applicants a protection visa.

Irene O’Connell
Deputy Division Head