1617482 (Refugee)

1617482 (Refugee) [2019] AATA 6651 (3 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617482
COUNTRY OF REFERENCE:                   China
MEMBER:Luke Hardy
DATE:3 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 September 2019 at 2:14pm
CATCHWORDS
REFUGEE – protection visa – China – Religion – attended underground church – detained – genuine catholic – articulation of catholic faith – letters of support – no state protection available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Sun v MIBP [2016] FCAFC 52

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [the Applicant], is a citizen of China. He arrived in Australia [in] March 2014 on a student visa valid to 15 March 2018. He lodged a protection visa application on 8 January 2016, almost two years after arrival here. The delegate refused to grant the visa on 30 September 2016. [The Applicant] then sought merits review of the delegate’s decision.
[The Applicant] appeared before the Tribunal on 28 August 2019 to give oral evidence and present arguments. He was accompanied by his advisor, a registered migration agent. The hearing was facilitated by an interpreter in the Mandarin-English medium.
At the beginning of the hearing, the Tribunal dealt in some detail with the matter of a s.438(1) “Non-disclosure Certificate” covering material in his Immigration Department described as internal working documents and, therefore, invalid, meaning that I am not barred from disclosing them. I assured [the Applicant] and his adviser that the documents in question, including checklists and communications about interpreter bookings, etc., have no bearing in the matter to be decided by me. I invited comment. There were no concerns raised and the hearing proceeded.
CRITERIA FOR A PROTECTION VISA
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.
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.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
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
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
The issues
The main issue in this case is whether, on accepted facts, [the Applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Claims to the Department
[The Applicant], who is from Henan province, claimed to the Department that he is a devout Roman Catholic, raised as such by his mother and grandparents. He claimed they all attended an “underground”, or unauthorised, Catholic church, the Chinese Government having set up a “Patriotic” version of the Catholic Church over which it retains power to make all episcopal appointments. [The Applicant] claimed he was baptised in early infancy. He claimed he underwent three months of catechumen studies ahead of his confirmation in [year] at the age of [age]. He claimed he attended church with his mother every Sunday even when he was boarding at his middle school. He described his father, meanwhile, as a non-religious man who worked in locations far away from home for much of the time.
[The Applicant] claimed he found [Occupation 1] in 2010 whilst [in school]. He claimed [Occupation 1] company was run by a church member. He claimed he used opportunities this job afforded him to [complete various tasks]. He claimed that some materials were edited locally by priests and nuns, while others were smuggled in from abroad. He claimed that in 2012 he made the acquaintance of a named doctor who managed a private medical clinic treating people [in a local village], [City 1], Henan province. He claimed that, under the easy cover of his [Occupation 1], he [completed various tasks] from his church to the doctor. He claimed that his mother became worried about the risks attending his activities and began arranging for him to travel and study abroad.
[The Applicant] claimed that the doctor organised a mass at his clinic [in] December 2013 for some of his patients who were underground Catholics. He claimed he was present at that mass. He claimed the mass was raided by police. He claimed that all in attendance, including himself, were arrested and taken to a local police station. He claimed the police took less interest in him overall because he was young and not from [City 1]. He claimed he also argued to the police that he was only there at the time to [work]. He claimed he was nevertheless detained for three weeks during which he was beaten and tortured with electricity and bright light. He claimed he was released back to his home village [in] January 2014. He claimed the police there continued to pay close attention to him. He claimed he nevertheless was able to leave China legally at [an airport] because his mother was able to bribe an official there.
[The Applicant] claimed that after he came to Australia he learned from secret members of the underground church that his local priest, a church “sister” and the doctor had been imprisoned. He claimed he also found out that two other church fellows in his church had been arrested, one of these, called [Person A], having given police the name of the other, named [last name of the Applicant]. He claimed to have been told “by secret members” of the church that his name and active role in the church had also been divulged to police.
[The Applicant] claimed to have been attending Catholic church services regularly since arriving in Australia.
Evidence to the delegate
For the purposes of this review, [the Applicant] submitted to the Tribunal a copy of the delegate’s decision record. This contains a summary of [the Applicant’s] oral evidence at the delegate’s interview and also a summary of issues raised by the delegate and on which the primary decision was made.
Without providing much detail in the primary decision record, the delegate noted that [the Applicant] “was able to answer basic questions about his claimed Christian religion.”
The delegate also noted [the Applicant’s] submissions to the Department including several letters of support from Catholic witnesses in Australia along with several photographs of him attending what appear to be Catholic mass and other observances in [City 2]. He had also submitted to the Department a number of translated records of his academic results in China along with a purported (and translated) “Notification of Detention” purportedly issued by [City 1] [police] “^[[in] December 2013.”
The delegate accepted that [the Applicant] had been attending Catholic church services in Australia since his arrival here in March 2014.
The delegate drew negative inferences from a number of factors in [the Applicant’s] evidence including the fact that the existence of the private clinic being unable to be established independently. The delegate also relied on information from DFAT[1] to the effect that it would be extremely difficult and unlikely for a person to be able to bribe airport officials in China so that a passenger could circumvent a police record and depart the country unhindered.
[1] DFAT Country Information Report: China, 3 March 2015
The delegate proceeded to find that, in view of her other findings, she gave no weight to the purported “Notification of Detention,” citing independent country information[2] to the effect that forged documents of such nature are easy to obtain in China for a price.
[2] UK Home Office, Country of Origin (COI) Report: China, 12 October 2012
The delegate drew negative inferences from [the Applicant’s] having delayed lodging a protection visa application for almost two years after his arrival here.
The delegate did not accept that [the Applicant] had ever been arrested or detained in China and, looking at the evidence cumulatively, found him generally unreliable. The delegate did not accept that he had been involved with the Catholic church prior to arrival here. The delegate made an alternative finding about [the Applicant] being able to attend the state-sanctioned Catholic church should he wish to do so, relying on DFAT-sourced information about basic dogma and liturgy being the same, even though the state-sanctioned church is required to add pro-state propaganda to sermons and the like.
Evidence to the Tribunal
Utilising the Catechism of the Catholic Church[3], The Roman Calendar for A.D. 2019[4] and Mass Readings for August 2019[5] as references, I asked [the Applicant] a number of questions about his claimed Catholic faith. I was careful not to require him to pass some arbitrary (and thus inherently flawed) “religious knowledge” quiz; rather, I was interested in ascertaining from him a sense of his own personal familiarity with ritual, scripture, the Church calendar, articles of faith and some of the mysteries and paradoxes that are described in Catholic catechetical literature as being at the heart of Catholic believing. I kept an open mind to the possibility that “not knowing” or “not understanding” should not be confused with “not genuinely believing”.
[3] Catechism of the Catholic Church,
[4]
[5] “25 August. 21st Sunday (Year C),” Mass Readings for August 2019, Association of Catholic Priests,
Overall, [the Applicant] was an impressive witness. He said he was given the name [deleted] at his baptism. He said he last attended mass on the preceding Sunday, 25 August 2019. He correctly identified the colour of the vestments worn by the priest on that day, and also on the previous Sunday. I asked him to describe the church “seasons” during which the priest wears purple and he correctly identified them. I asked him to explain the symbolism of purple and white in Catholic church culture, and he gave what the Catholic church would regard as correct answers. In particular, he associated white with the Christian mysteries of the birth and resurrection of Jesus. I asked him if he could name the author of the Gospel reading on Sunday, 25 August 2019; he gave the correct answer, and also gave an accurate summary of the lesson given in the passage that was read on that day.
I asked [the Applicant] to tell me when he believes Jesus will “come again”. His answer was consistent with scripture and the Catechism. I asked him to tell me what Jesus, according to his beliefs, will do at that time, and his answer was also consistent with scripture and the Catechism. I asked him how a person should prepare for the “coming” under discussion here and, once more, he gave an answer consistent with scripture and the Catechism, and in some detail, although more in his own words disclosing evidence of subjective and individual consideration. I invited him to identify the individual components of the Holy Trinity and he answered consistent with the Catechism.
Whereas it is conceivable that someone might “swat” the facts over a period of the last three years or so, particularly after an unsuccessful protection visa application in the first instance, so as to give a false appearance of religious belief, [the Applicant] gave me the confident impression of his having something more nuanced than mere knowledge of scripture, ritual and liturgy: there appeared to be elements of personal colour in his answers to my questions. He gave the strong impression of having been immersed in the culture of Catholicism for much of his life, consistent with being a genuine Catholic.
I invited [the Applicant] to comment on the delegate having found him able merely “to answer basic questions about his claimed Christian religion,” and, in reply, he said the delegate had only asked him about two or three questions.
I note again that the delegate accepted [the Applicant] had been attending Catholic churches in Australia. I invited him to talk about the church he attends, and he mentioned three. He said that although he lives in [Suburb 1], and although there is a Catholic church there, he rarely attends it compared to the first church he attended in Australia, in [Suburb 2], which he found soon after arrival whilst searching “Chinese Catholic Communities” in [City 2]. He said the [Suburb 2] church is called [Church 1]. He said that there is an Anglican church in [a suburb] that his community is allowed to borrow for certain masses and other activities such as Christmas events, although his main church is the one in [Suburb 2]. He told me he had momentarily forgotten the name of the Catholic church he sometimes attends in [Suburb 1], but drew a rough map to show its location in respect to [Suburb 1] station. He appeared to be referring to a lot identified as the parish of [another church] with a quite prominent primary school and probably a less prominent church or chapel.
I put to [the Applicant] that the beliefs he had just been discussing were nevertheless the same beliefs espoused by Catholics who join state-sanctioned Catholic parishes in China. I asked him if he might be able to continue practicing as a Catholic in the state-sanctioned Catholic church, notwithstanding the demands on it to give pro-government glosses, or at least avoid anti-government ones, in its sermons and homilies. In reply, [the Applicant] said that the state-sanctioned church cannot be counted as a church because its priests and bishops are appointed by non-Catholics in the state’s Religious Affairs Bureau. He said this “goes against our faith”. He said that no-one working in the Religious Affairs Bureau has been baptised in the true church. He said that priests can only be ordained and bishops invested “by the Holy See”, and he added that such appointments are not mere formalities to be left to public servants but, rather, “a sacred affair” that can be conducted only by people with powers invested by Jesus through the church.
I invited [the Applicant] to comment on the delegate having drawn negative inferences from his delay in applying for protection after arriving in Australia. In reply, he said this was a difficult question to answer. He started by saying that the first thing he did after coming to Australia was to look for a church. He then indicated that once he had found a suitable church, he felt comfortable in not having to hide his religion and just started living in the present, as it were. He said he did this even though he had known about the availability of protection visas for some time. He said that in the two years he took before applying for a protection visa there was a mounting fear as news arrived of police interfering with his congregation back in China.
I did ask [the Applicant] if he had struck difficulties meeting his academic requirements by the time he lodged his protection visa. He disclosed that he was struggling and had many difficulties at the time although meeting with success in some of his study units. I note that, whatever [the Applicant’s] academic situation had been up to the time he lodged his protection visa application, he did not appear to be facing cancellation of his student visa for any reason, such as might provide a reason for lodging a protection visa application, ingenuously or otherwise, and his student visa had a further two years’ validity.
I asked [the Applicant] about how, some time after he came to Australia, he found out that his name had been given to the police. In reply, he said his mother called him near the end of 2015 and told him. He said she told him that his church fellow [Person A] told the police about him. I asked him how his mother would have found out what [Person A] had said to the police, and he said she found out from a church fellow. He said the police did harass his mother after his release from detention in January 2014 although in this instance it was not the police who told her about [Person A’s] confession.
I did not give [the Applicant] a running commentary on my impressions about this part of his evidence, and I am not required to do so. Nevertheless, I was somewhat troubled at the difference, tantamount to somewhat of a discrepancy, between telling me he learned from his mother that the police had discovered his role in the church and telling the Department that he learned it from “secret members of the underground church”.

[The Applicant] told me his mother has never been detained in connection with her religion, although he did mention that she attracted some local notoriety in the workplace when he was arrested in 2013 and was, around that time, let go from [her employment] where she had been working. He said she later found work [in another occupation].
Witness evidence
Amongst the several letters of support in this case are at least four signed by priests and parishioners attesting to [the Applicant] having been attending mass at [Church 1] in [Suburb 2] since March 2014. I give some weight to these letters.
Independent country information
I have had regard to the following report from the Catholic News Agency[6]:
[6] ; “In China, government-aligned bishops release ‘Sinicization’ plan,” Catholic News Agency, 25 July 2018,
Continuing a controversial plan, Chinese bishops allied with the government have told dioceses to prepare local versions of a “Sinicization” program to bring the Catholic Church more in-line with the government’s understanding of Chinese culture, society and politics.
“It is to complete the Chinese-style socialist road within five years,” a source in Hibei province told UCA News. “Even if they do not get approval from the Holy See, they will still get trust from the government.”
The Sinicization program could be a factor in ongoing Chinese-Vatican relations, the source said: “China and the Vatican can establish diplomatic relations regardless of the conditions, and the mainland can still tighten its grip on the Church with its plan.”
The Catholic Church in China has been split between the government-sanctioned Chinese Patriotic Catholic Association and the underground Church, which is persecuted and whose episcopal appointments are frequently not acknowledged by Chinese authorities.
The underground churches are monitored by local officials but generally tolerated. However, many underground priests, bishops, and laity have faced persecution and harassment.
In June, government authorities in Henan province destroyed images of the Way of the Cross at Our Lady of Mount Carmel, a popular Christian destination since 1903.
The Holy See has pursued an agreement with the Chinese government, one that could eventually lead to Vatican recognition of seven illicitly ordained bishops aligned with Beijing and to a more normal life for underground Catholics. However, there have been reports that some bishops long loyal to the Holy See have been asked to resign their sees or retire early to make way for government-appointed replacements as part of this plan.
In June, the government-approved Bishops’ Conference of the Catholic Church in China and the state-run Chinese Catholic Patriotic Association issued a 15-page five-year plan to all dioceses promoting the Chinese Catholic Church’s adherence to Sinicization. They have asked the dioceses to create their own five-year plans and report back before the end of August.
Training programs about the process have been run in all the dioceses of Hebei province, which is in northern China near Beijing, and in the Diocese of Yibin in southwestern China’s Sichuan province.
The Sinicization effort follows new regulations on religious activities in China which took effect February 1. Worship is allowed only in designated churches and according to a schedule approved by government administrators. Worship is illegal in every other place, including private houses.
Group prayer in private houses is forbidden, and can result in arrest. The regulations also require that every church must display at its entrance a notice that the building is “prohibited to minors under age 18” and that children and teenagers are not allowed to take part in religious rites.
The Sinicization program has met considerable resistance from critics, both in China and abroad.
In February, Daniel Mark, chairman of the U.S. Commission on International Religious Freedom, wrote in First Things that Sinicization of religion is “a process of manipulating and subduing faith so as to render it compatible with the state’s totalitarian aims.”
Fr. Benoit Vermander, a Jesuit priest in China, attempted to outline a path for “Sinicization” of religion in the March 3 issue of the Jesuit-run journal La Civiltà Cattolica, whose publication is overseen by the Vatican’s Secretariat of State.
While there are “evident dangers” in following a top-down policy that can bring “a substantial loss of identity,” he argued, Catholics should not avoid “Sinicization” simply because it is government backed. Rather, despite the problems created by the policy, dialogue between Catholics and the Communist government is needed.
Vermander argues that Christian churches should listen to the government’s appeal for Sinicization and “examine which kind of changes it could lead them to imagine and undertake,” while “being aware of the danger.”
Professor Ying Fuk-tsang, director of the divinity school at the Chinese University of Hong Kong, told UCA News that Sinicization is unavoidable for all religions in China following President Xi Jinping’s proposal of the program in 2015.
The Chinese government has proposed Sinicization in three areas: political identity, social identity and cultural identity. The Catholic five-year plan accomodates [sic]all three of these aspects.
Interpreting progress from the basis of Catholic theology and doctrine will be the main focus, Ying said, “because the central government’s main concern for the Sinicization of religion is not cultural, but political and social.”
According to Ying, Sinicization is the Communist Party’s effort to strengthen control over religions by ideological means. Religion must conform to the Communist Party’s core socialist values and must align with Chinese society while being compatible with traditional Chinese culture.
Ying said the Sinicization plan would be incorporated into the localization of the universal Church within the context of the Second Vatican Council.
The plan says the history of the Chinese Catholic Church can learn lessons from Catholicism’s actions under the Ming and Qing imperial dynasties, when the faith was sometimes banned and the faithful persecuted.
“If you have a bad relationship with an imperial power and tradition, you will have the consequences of prohibition,” said Ying. He contended that Matteo Ricci should be the basis for this religious Sinicization in the 21st century because of the Jesuit missionary’s efforts to adapt Christianity to Chinese culture.
Fr. Vermander said that Catholic and Protestant evangelization in 19th century “often lacked cultural sensitivity” and combined the Gospel with elements foreign to it, meaning Western civilization exported not only its faith, but its conflicts.
However, he said, “inculturation is the result of a process of popular appropriation that no one can really govern.” He pointed to Chinese Catholics who have adopted the rosary and litanies to saints into their family life.
He proposed Christian engagement in “creative inculturation.” Spiritual theology can draw on Confucian and Taoist resources to consider how God makes people experience his presence. In culture and art, Christians can try to speak to a wider audience in a way “of great benefit for Chinese Christianity and for the society in general.” They can also respond to current situations with “awareness and social action,” such as in addressing the inequalities and social imbalances President Xi Jinping has lamented.
“Christianity,” Fr. Vermander concluded, “can certainly become more Chinese; at the same time, it can help China to become more open and harmonious.”
I have also had regard to the following report:
The long-awaited [Chinese government] revision of the draft religion regulations circulated last September was signed into law last month and will take effect February 1, 2018.
Last autumn’s draft evoked a groundswell of concern among Christians in China, many of whom had hoped the government would provide a path toward legal status for China’s unregistered churches. The final version retains the harsh language targeting unregistered religious activities, unofficial religious schools, unauthorized religious instruction, and religious believers going abroad for training, conferences, or other activities. In keeping with the times, the regulations require that religious information services on the Internet be registered with the religious affairs department at the provincial level or above ...
The new religion regulations are sweeping in scope and, if fully enforced, could mean major changes for China’s unregistered church, not only in its worship and meeting practices, but also engagement in areas such as Christian education, media, and interaction with the global church. Yet the nature of these activities and, indeed, of much religious practice throughout China, makes enforcement extremely problematic.
As Gareth Fisher pointed out in his 2014 study of lay Buddhist practices taking place in the courtyard of a prominent temple in Beijing,[1] much of China’s religious life occurs on “islands of religiosity” within the contested gray area between official and unofficial practices. How to define what constitutes “religious activity,” “religious sites,” or “religious content” depends ultimately on the subjective definition of officials charged with enforcing the regulations.
Whether officials at the local level will want to enforce the regulations is another question altogether. In recent years the most common way for local police to keep tabs on leaders of unregistered Christian groups has been by meeting regularly to “drink tea,” an arrangement that has served both parties well. Recently an unregistered church pastor told of a conversation in which a local policeman criticized the new regulations, complaining they would disrupt the cordial relationship they had, up until now, enjoyed.
Regulating China’s religious life using the myriad provisions contained in the new regulations seems a bit like trying to nail the proverbial Jello to the wall. Having more nails in the toolkit does not make the task any easier. [7]
[7] B. Fulton, ‘New Religion Regulations to Take Effect in February’, China Source website, 13 September 2017,
The above-mentioned restrictions, affecting even state-sanctioned churches, have appear already to have taken violent and disruptive effect in Henan and other provinces in China:
China has intensified its crackdown on religion, with images emerging of crosses being burned and destroyed at Christian churches.
The crosses are said to often be replaced with objects such as the Chinese flag and photos of Chinese President Xi Jinping and former Communist Party leader Mao Zedong.
In one video posted on Twitter earlier this month, fire is seen engulfing the cross at the Chinese Christian Church in Xinxiang city, in the country's central Henan province.
Liang Zhang, 48, the pastor of a house church in Henan's Shangqiu city, said the state had been tightening its control over church operations.
"And then they came into the church saying that things inside should be removed.
"For example, the banner saying: 'For God, so love the world' and the scriptures were torn down, and all things related to the Bible and faith had to be cleared out." …
Several videos sent by Mr Zhang to the ABC, and others circulating on social media, appear to show the forced destruction of crosses and changes to churches' appearances.
A truck with an outstretched crane on the back makes changes to a church's exterior.
In some videos, which Mr Zhang said were filmed recently in Henan, authorities use cranes to take down crosses, while others show officials forcing their way into underground churches.
The campaign corresponds with the Government drive to "Sinicise" religion by demanding loyalty to the officially atheist Communist Party and eliminating any challenge to its power over people's lives.
Mr Zhang said the clampdown had become more dramatic in recent months, with even state-sanctioned churches targeted.
"Since June, they started to ask us to tear down things about Sunday School for kids," Mr Zhang said.
"[Many] of the big official TSPM churches and the family churches were closed down," he added, referring to the Three-Self Patriotic Movement, a state-sanctioned church.
Mr Zhang said the Government was installing "information officers", who report behaviour that is anti-government or seen as a threat to social stability, in churches.
He said the only places where the Bible could be discussed freely were small church setups in houses, where 20-30 people could gather.
Under Chinese law, religious followers are only allowed to worship in congregations registered with authorities, but many millions belong to so-called underground or house churches that defy government restrictions.
Mr Zhang said dozens of churches had been shut down in his county and those remaining were beginning to "look like culture clubs" rather than religious buildings.
"We now have our cross in the middle of our presidents' portraits, which are President Xi and Chairman Mao's portraits."
The latest tightening of control follows moves earlier this year to pull bibles from sale through online bookstores across China, sparking outrage from Chinese Christians…
The crackdown on religion was continuing even as Beijing was negotiating a landmark deal with the Vatican over the appointment of bishops.
On Saturday, the Vatican signed an agreement giving it a long-desired and decisive say in the appointment of bishops in China, though critics labelled it a sell-out to the Chinese Government.
The deal resolved one of the major sticking points between China and the Vatican in recent years, with the Vatican agreeing to accept seven bishops who were previously named by Beijing without the Pope's consent.
The Vatican has said the accord, a breakthrough after years of negotiations, was "not political but pastoral", and hoped it would lead to "the full communion of all Chinese Catholics".
Bob Fu, the founder of Christian human rights organisation ChinaAid, was among those to hit out at the agreement.
"While we understand the eagerness of Vatican for seeking more legitimacy in the eye of the Chinese Communist Party, this reported deal is nothing but a betrayal of both the millions of suffering persecuted Christians in China and the global Catholic Church," he said.
Joseph Zen, a Chinese cardinal of the Catholic Church in Hong Kong, said the deal lacked detail and helped empower the Government.
"With the agreement the [Chinese] Government can tell the Catholics: 'Obey to us! We are in agreement with your Pope!'" [8]
[8] “China cracks down on religion, crosses burned at Christian churches, Xi Jinping photos installed,” ABC News, 25 September 2018
The following material is found in the DFAT Country Information Report: People’s Republic of China, dated 21 December 2017:
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.
The DFAT Thematic Report: Unregistered religious organisations and other groups in the People’s Republic of China, dated 3 March 2015, presents the following information about unauthorised Catholic churches in China:
Unregistered Catholic Organisations
3.13     Catholic activity has been growing steadily in China for three decades. The Chinese Catholic Patriotic Association (CPA) has managed Catholic affairs in China, including the appointment of Bishops, since 1957. The CPA does not recognise the authority of the Holy See to appoint bishops. From 1993 until 2010, the Vatican and CPA had struck an informal arrangement in some provinces, where the Vatican had some discreet input or even right of approval for bishop candidates prior to their ordination by the CPA. However, since 2010, the majority of bishops were ordained by the CPA without Vatican input. In April 2013, the CPA announced the Regulation on the Election and Consecration of Bishops, requiring candidate bishops to publicly pledge support for the CCP.
3.14    Catholics who refuse to acknowledge the authority of the CPA have been described as “underground” or “unofficial” Catholics. There are approximately 40 Catholic bishops that remain independent of the CPA and operate unofficially.
3.15    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. Credible sources have told DFAT this was no longer required in areas where the Catholic Church had managed to build trust with local officials over time.
3.16     Reports issued by the United States Commission on International Religious Freedom indicate that dozens of Catholic clergy, including three bishops, remain in detention, in home confinement, or disappeared in 2013. Overseas travel by prominent church members or leaders is largely viewed by authorities as out of bounds, owing to long-held fears about foreign funding or influence on communities in China. According to media reports, around half of 100 students who had planned to travel from China to South Korea to attend the Asian Youth Day event in August 2014 were prevented from attending.
3.17     As with members of Protestant churches in China, Catholics in China can experience officially-sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive. Incidence of societal discrimination and violence against Catholics in China is generally low.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220.
[10] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[11] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[12]
[11] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[12] Sun v MIBP [2016] FCAFC 52 at [69].
[The Applicant’s] claims relate to the relevant s.5J(1)(a) factor of “religion”. The harm he claims to fear, arrest, detention and the physical and psychological abuse reportedly concomitant with the latter in China, can reasonably be characterised as persecution within the meaning of s.5J(5) of the Act.
I accept that [the Applicant], on his evidence and that of his witnesses, has been affiliating with the Catholic church since shortly after he arrived in Australia. For three reasons, of which the second flows from the first, I am satisfied that he is not caught by the “good faith” provision in s.5J(6) of the Act: the first being that he struck me as being a genuine Catholic.
The strongest aspect of [the Applicant’s] evidence is in his articulation of Catholic faith and practice and in arguing his claimed beliefs regarding the state-sanctioned Catholic church in China. In the face of quite robust examination he was, as I have already observed, impressive. His evidence struck me as candid, thoughtful, considered, unforced and sincere.
The extent to which [the Applicant] was impressive in his discussion of religion added to the authenticity of his discussion about his history of church-going in Australia such that I am satisfied that he affiliated with the church out of a genuine Catholic belief, the articulation of which seemed incompatible with having merely been rote-learned in the last few years.
Since I accept that [the Applicant] has been attending Catholic churches in [City 2] since around the time of his arrival, the third reason for finding that he is not caught by s.5J(6) is that there was no refugee claim to “strengthen” until almost two years after he started attending church here.
I also accept on the evidence that [the Applicant] was a parishioner in an unauthorised church in China and that requiring him to attend a state-authorised church instead would involve an unreasonable expectation on him to alter his behaviour in ways and for reasons that are incompatible with s.5J(3)(a), and (c)(i) and (ii), of the Act.
I draw no negative inferences, in this particular case, from [the Applicant’s] delay in lodging his protection visa application. He provided what I consider to be an authentic account of arguable short-sightedness in not pursuing the protection visa option sooner. He also said that it required a mounting awareness of the potential implication of events in China before he took the plunge, as it were, into lodging a protection visa application. This is consistent with independent country information coming out of China since 2015 about the “Sinicisation” of churches, accompanied by news of crackdowns not only on previously-tolerated unauthorised churches in Henan and elsewhere in China but also, to various extents, on the operation of authorised churches there.
It is another matter to accept that he was arrested and detained in 2013 for his suspected role in a local unauthorised Catholic church and then exposed in connection with his actual role in a confession to police in 2015. To the extent that I explored this aspect of [the Applicant’s] claims at the hearing, and I acknowledge that I did not go very far, I found his oral evidence somewhat troubling when seen beside his original written claims about the same events. Those written claims appeared in a structure or format that has been presented to me many times: each paragraph appears first in Chinese and then in English translation before proceeding to the next paragraph; less relevant biographical details intersperse with professional and academic histories that intertwine with substantive claims about threats and persecution; the claims about persecution do not always stand up to closer examination. There may or may not have been such familiar flaws in the preparation of [the Applicant’s] claims, but it is important not to pre-judge his good faith on the nature and quality of his original submissions. Meanwhile, the delegate identified a number of other deficiencies in [the Applicant’s] evidence; however, as with the instance of the lack of evidence corroborating claims about the private clinic, those perceived deficiencies did not necessarily amount conclusively to inconsistencies between sets of facts.
In the end, as far as this specific case is concerned, I do not believe that potential deficiencies in [the Applicant’s] evidence – say, about having been caught, arrested, detained and confirmed by police over involvement in an unauthorised church in China – are so significant. They would not be enough in my view to cause me to doubt the truthfulness of the evidence I have found to be truthful, and that evidence, seen in light of independent country information, is significant, and leads me to findings that do not need to rely on [the Applicant] already having some kind of record or case to answer with the authorities in China.
To sum up, I am satisfied that [the Applicant] is a genuine Catholic, that he attended an underground Catholic church for most of his life back in China and that, due to crackdowns described and explained in the independent country information, he faces a real chance of being persecuted in China in the reasonably foreseeable future if he goes back there and tries to affiliate again with an unauthorised Catholic church there. I find that it is pointless to expect him to keep a low profile since, according to the country information, the identities and locations of unauthorised churches in Chinese localities are generally known by the authorities there who have also been encouraged by the state to take stronger action in eradicating unauthorised religious activities; it is in any event unreasonable, bearing in mind of s.5J(6) of the Act. I also consider it unreasonable to expect [the Applicant] to defect to the state-authorised version of the Catholic church, as this would involve him compromising sincerely-held beliefs in order to avoid persecution which, again, would be incompatible with s.5J(6) of the Act.
I find that it would not be safe, practicable or reasonable for [the Applicant] to relocate within China to avoid persecution because the actions of the state in regard to unauthorised Catholic religious practice are evidently nationwide. Since the persecution is directed by policy and law and enforced under arbitrary interpretation by local authorities, I am confident that [the Applicant] is not able to avail himself of effective state protection.
Ultimately, on the evidence before me, I am satisfied that [the Applicant] faces a real chance of being persecuted in China in the reasonably foreseeable future for the relevant reason of “religion”. His claimed fear of being persecuted is well founded. He is a refugee.
For the reasons given above, I am satisfied that [the Applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
S.36(3)
I am satisfied that [the Applicant] has no right to enter and reside in any third country. For this reason, I am satisfied that he is not caught by s.36(3) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Luke Hardy
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.
…

[2019] AATA 6651

3 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies