1620162 (Refugee)

[2019] AATA 6513

1620162 (Refugee) [2019] AATA 6513 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620162

COUNTRY OF REFERENCE:                   China

MEMBER:Anne Grant

DATE:9 October 2019

PLACE OF DECISION:  Melbourne

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 09 October 2019 at 10:00am

CATCHWORDS
REFUGEE – protection visa – China – religion – Church of Almighty God – banned organisation – church worker – fears persecution by Chinese Government and authorities – protection measures unavailable to applicant in China – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 438(1)(a), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v Minister for Immigration [& Multicultural Affairs (2003) 203 ALR 112
NAVZ v MIMIA [2015] FCA 13
Wang v MIMA (2000) 105 FCR 548

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 and Border Protection on 17 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 6 September 2016. The delegate refused to grant the visa on the basis that they did not accept that the applicant was a genuine member of the Church of Almighty God and did not accept her claims that there was a real chance that she would be persecuted in China due to her religious beliefs.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B) of the Act.

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

9. The issue in this case is whether the applicant is a refugee and if not, whether there are reasonable grounds for believing that, as a necessary and foreseeable consequence of her being returned to China, there is a real risk that she will suffer significant harm.

   The applicant’s claims and evidence

10. In her original claims, the applicant stated that she would suffer persecution in China because she is a member of the Church of Almighty God, which is designated by the Chinese government as a heresy and that the Chinese government wants to ‘wipe them out’.  She joined the church in October 2005 and started Church service work in 2007.  The government offers a reward for providing clues of her church and Christians.  The government has a lot of informers in the public.  Many Christians were arrested, including her close Church-mate [Ms A].  The applicant claimed that the police were searching for her, and she had to live in fear and hiding.  She had to leave China or her life would still be in danger.  She fears being arrested and tortured by police.  Nowhere in China is safe for her, as the government searches for Christians everywhere. They will force her to betray her church and quit her religion.

11. In her written claims, the applicant also said that in August 2013, her church mate [Ms A] and her went to [a] Town, Datong city to attend a church ceremony.   They became aware they were being followed and separated, with the applicant changing her clothes and appearance but the police followed and arrested [Ms A].  After this she claimed the police kept searching for her and had to keep running and hide herself place to place. She lived in church-mate’s places and could not stay at one place for long.  Another of her church-mates, [Person B] was arrested in February 2016.   The police said that there were terrorists at her place and opened fire in her room and arrested her.   Later it was discovered that she had forgot to log off her computer communication software and her IP address was monitored by police.  After that the police searched for her as well.

12. The delegate interviewed the applicant.  According to the delegate’s decision record, she told the delegate:

    ·That she had not had paid employment since September 2007, and survived on savings and support from her parents and also that the church had provided her with food and accommodation when needed.  Whilst she had been a member since 2005 she did not devote herself to the church until 2007. 

    ·She worked as a deacon at the church and attended church every day with many groups at other member’s houses.  The church was a secretive organisation and members would regularly disguise themselves by wearing pollution masks, sunglasses and changes of clothes.

    ·A friend of hers was arrested in August 2013.  The police followed her and her friend.  After becoming aware that they were being followed, the applicant went into a toilet to change her clothes, glasses and hairstyle.  Her friend was arrested.  After that time, she did not go home.

    ·The delegate records that the applicant gave inconsistent evidence about when she left home.  In her application, she gave her home address in [County 1] until June 2016.  She told the delegate that she left that address early in March 2015 to live in [another] City.  She also told the delegate that after the arrest of her friend in August 2013, she left home to hide in [County 1] Datong City and did not return home until July 2014 where she remained until March 2016. 

    ·Another friend of hers was arrested in February 2016 after she was caught listening to preaching on an electronic device.  The police did not shoot her friend but merely arrived in an anti-riot truck. 

    ·Her mother bought her an apartment in Datong City because she was unmarried and this was where she was living after her friend was arrested, but later said she only stayed there in special circumstances. 

    ·She was granted a passport in [2016], [details deleted]. 

    ·A church brother organised her visa to Australia and she paid [an amount of] Yuan for her visa applications to [Country 1] and to Australia. 

    ·According to the delegate, the applicant was ‘unaware’ that the church was also known as the ‘Real God’ or the ‘Practical God’.  She was aware of the church’s holy book but ‘was unaware of the names of any of the chapters of the book’.  She was ‘unaware how the hierarchy of the Church was organised.’

    ·The applicant said that she does evangelise in Australia but only to family in China.

    ·The applicant described coming into conflict with her sister in law in China before she left, who wanted the applicant to contribute to the family business but she would devote herself to the church. 

13. On 2 August 2019, along with a number of other supporting documents and a written submission from her representative, the applicant provided a statutory declaration which includes  corrections to the translation of her evidence in front of the delegate and which provides further detail about her claims.    

14. In clarifying translations of her evidence in interview, the applicant drew attention to the following:

    ·She did not say ‘she didn’t care’ that false information was provided on her [temporary] visa application. She said that she didn’t tell the agent to do that, but he said that if she wants to go abroad, she had to provide false information.

    ·She did not say she was a ‘deacon’ but that she was a church leader in the church, and had a duty of taking care of church affairs.  They were not allowed to call each other by phone and contacted each other by writing notes.  She was in charge of general affairs, and responsible for delivering church letters.

    ·[Ms A] was a church member of the upper level and came to have a gathering with them.   The applicant went to the station to pick her up.  Maybe [Ms A] was already being followed when she picked her up, but when they were on the way, they found that they were being tracked.  The applicant told [Ms A] that they should separate.    She always took clothes when she was in the church.  She walked to a toilet, went in, put on different clothes, put her hair down, took her glasses off and left.  [Ms A] was not so lucky.  She was arrested.  She noted that the delegate asked if she always had a spare set of clothing but the interpreter actually asked if she always carry a spare set of glasses, and she responded by saying that she didn’t carry a spare set of glasses, she just took off her glasses.  There ensued a confused conversation about whether or not she changed her clothes. 

    ·According to the applicant at 1:00:15 of the interview, the delegate asks the applicant if she could name any chapter of the book (referring to The Word Appears in the Flesh).  The applicant’s reply was; Part One:  Utterances of Christ in the Beginning, and God’s Words to the Entire Universe.  The interpretation given to the delegate was:  the first chapter is the declaration publication from the early Christ, 120 chapters, maybe god statures voice from our language.  The delegate then asks any other chapters she can name.  She names “Interpretations of the Mysteries of God’s Words to the Entire Universe, The Words of Christ as he Walked in the Churches.  This is a general outline.  “God Presides over the Fate of All Mankind” in the words of Christ As He Walked in the Churches.”  The interpreter says “revelation from secret paragraphs: speech of the followers of our church: there are also some details; Almighty God dominate control the fate of human being.”

15. I note that even during our hearing, some of the language used by the applicant in discussing religious ideas was observed as being difficult to translate into English.   In fact, it appears that in both Chinese and in English some of the language of the holy books is dense and difficult to understand logically.  I am satisfied that the applicant’s evidence may not have been clear to the delegate due to translation difficulties and that this may have led the delegate to view her evidence on some important aspects as unreliable.  

16. The applicant provided significant details about her personal and Church life in the declaration.  I do not propose to fully state that information here.  Instead, I note that they are consistent with her evidence both in her written claims (which are less detailed), with what she told the delegate, and with what she told me during the hearing.

17. The information provided in both her oral evidence at hearing and in her statutory declaration described her personal journey to becoming a Church member after being introduced to the faith by her mother.  She described how she struggled with hostile workplaces and the behaviour of colleagues and found some solace in the teachings of the COAG and also in the fellowship between church members.  After her small business closed down in October 2007, she decided to devote herself to the faith and, in addition to attending meetings, became a church leader.  She has never been married.  Relationships with boyfriends ended as soon as they found out she was a member of the COAG.  The men were concerned that she would be arrested and that any children they may have would not be allowed to study at school or become civil servants and that they would be dismissed if working in government departments.  What is written in her application about remaining in her parent’s home in [County 1] from 1995 to June 2016 is not correct.  She provided a list of the addresses that she lived at annexed to her declaration. 

18. The applicant describes becoming a formal member of the COAG in October 2005.  The process was a meeting where she was questioned about her knowledge of the truth and the three stages of God’s work, the work of the Holy Spirit and the work of Satan.  She was then asked if she was willing to join the church.  She was given a church name, [name deleted], and told that it was necessary for her safety to have a church name.

19. The applicant describes her faith practice and beliefs at length in her statutory declaration and was freely able to do so (and willing to do so) at our hearing.  She gave evidence that she often read the texts, fellowshipped about God’s word, sang hymns, prayed to Almighty God and spread the gospel with church brothers and sisters.  She came to be aware through discussions with her brothers and sisters in the church that the CCP government frequently arrested believers and that she should be very careful.  She was vigilant about being followed or watched.  If she saw someone near the house where a gathering was to be held, she would walk away and return after a while.  They only met in small groups of three to five people.  They changed their meeting location regularly.  They sang and read God’s words in low voices.

20. The applicant also provided detail about how she began to perform duty as a church leader in 2007.  She delivered copies of the Book, CD’s of sermons and letters among Church brothers and sisters. She did that duty for around six years.  The letters were delivered by hand in hard copy because the CCP government monitors phones and digital communications.  To make deliveries, she rode an electric scooter or took a bus.  [Details deleted].  It was then passed to the necessary church members by hand.  The police regularly conducted checks.  She described being in fear every day doing her duty that she would be arrested.  She described how at the end of 2012, the CCP undertook a large scale arrest of members of the church. To fill a vacancy consequent on the arrests, she moved to [County 1], Datong City as a church leader in August 2013.  She lived in a sister’s house in [County 1].

21. The applicant gave specific and detailed evidence about the arrest of [Ms A] in August 2013, after they were riding to a gathering on a scooter, how they separated and how [Ms A] was later arrested.    She explained that [Ms A] didn’t know the gathering details so should have returned to a predetermined place once she left the applicant, but did not.  Because [Ms A] knew the address of that place and they feared that she had been arrested, (which later turned out to be the case), the applicant had to then arrange for the safety of everyone there and she herself relocated.  Later the church informed her that [Ms A] had indeed been arrested. The applicant was fearful that she would also be arrested at any time.

22. Around the middle of September 2013, the applicant was informed that [Ms A] had been released after suffering a [medical incident] in custody (and after suffering tortures) and that she had been questioned about who was with her just before she was arrested and what role that person had within the church.   The applicant states that she does not know if [Ms A] told the police any information about the applicant, but this was why she said in her application that the police were searching for her. She moved to [Named] Township in [County 1] where she continued her church leader duties. 

23. The applicant was aware of the ‘McDonald’s Case’ and the consequences for the church after that incident was blamed on the church.  Public and private scrutiny increased dramatically, including a request from the authorities to be vigilant and report ‘believers’ for reward.    She took extra precautions in her work and continued to be in fear and on edge constantly.  In [month] 2014, a village head came to the sister’s home where she was living to ask who the ‘stranger’ with her was.    She had nowhere to go, as this sort of monitoring was happening everywhere, so she returned to her parent’s home in Datong City. 

24. Because of the publicity surrounding the McDonald’s Case, her sister in law began to oppose the applicant and her mother’s beliefs and threaten them with being arrested.  Her mother purchased a property in Datong City for the applicant, saying it was because a grown daughter old enough to be married should not live with her family.  However soon after it was purchased, it was needed for church business, by a person, [Mr C], who did [work] there.  The applicant took [items] to and from [Mr C].  Then, at the end of February 2016, she received an urgent letter that [Mr C] had been arrested in her own home (not the apartment).  Because [Mr C] knew the address of both the apartment and her parents, her mother and the applicant had no choice but to go into hiding.   The applicant went to a [sibling’s] home [in] Shanxi Province and her mother went elsewhere.  The loss of all contact with her mother (who is [age]) causes her distress. 

25. The applicant gave details of how, after that, and with the help of a Church brother, she planned to leave China to escape persecution.  The applicant came to know that [Mr C] was discovered when the police monitored her electronic communications and that they came to her home in explosion proof cars and fire-fighting trucks to arrest her, thinking there was a meeting at that place.   They even fired a shot into the wall of her room.  The police had asked [Mr C] who the woman was who regularly visited her, so the applicant knew that they were again looking for her.  The letter did not warn her not to contact [Mr C], so she was relatively confident that [Mr C] had not revealed her identity, or the address of her unit but she was nonetheless fearful that they were still trying to find out who she was in order to arrest her. 

1. The applicant described the application for a passport as a terrifying ordeal, as she did not know if she had been identified by police and was afraid that she would be arrested at any moment.  As it happens, that did not occur.  Once she got her passport she applied for a [Country 1] visa but when that was rejected she applied for an Australian visa.

2. The applicant has continued her devotion to the COAG in Australia. She has not spoken to anyone in her family since [June] 2016.  She is afraid that any phone calls would be monitored and that by contacting her family, she would be placing them in danger.  She lives with other church members and has moved several times, always sharing with other sisters of the church.  She attends church meetings and business on days she is not working but it is much easier here in Australia.  She is free to worship loudly, to have open friendships with her sisters, and to speak publicly about God’s word.  The applicant said that if she was forced to return to China, she would nonetheless continue to practice her faith and would be at risk of being arrested.

3. The applicant’s legal representative provided a written submission which I have carefully considered.  That submission provided additional country information about the Church of Almighty God, (some of which is referenced below) its treatment in China (and that of its’ members) and the representative’s assessment of how the applicant’s case meets the criteria in the legislation.

4. In considering this review, I have also taken into account the general country information about China and the experience of Church of Almighty God members there. 

5. According to Department of Foreign Affairs and Trade Country Information Report:  China 3 October 2019;

   2.50 The Constitution provides for freedom of speech, the press, assembly, association and religious belief. Article 33 states that ‘all citizens of the People’s Republic of China are equal before the law. The State respects and preserves human rights’. In practice, however, the Constitution is non-justiciable and these freedoms are significantly curtailed. The one-party political system lacks effective safeguards to allow independent monitoring and investigation of human rights abuses by the state, such as an independent media, judiciary or a national human rights institution.’

6. In relation to freedom of religion more generally, DFAT usefully summarises as follows:

   3.28 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.

   3.29 In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).

   3.30 It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical
   personnel); and 38 million follow Protestantism (57,000 clerical personnel).

   3.31 The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10
   Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the  Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.

   3.32 In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by
   Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.

   Christians:

   3.76   China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

   3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to
   several thousand participants/attendees.

   3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

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

   3.80 Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.

   3.81 In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest  nderground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.

   3.82 Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

   3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

   Churches designated as xie jiao (commonly referred to as ‘evil cults’ but also understood to translate to ‘heterodox teachings’):

   3.93  The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.

   3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.

   3.95 Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.

   Eastern Lightning (church of Almighty God, COAG)

   3.107 The Chinese government listed Eastern Lightning, an offshoot of the Shouters, also known as ‘The Church of the Almighty God (COAG)’, ‘The Congregation’, ‘Oriental Lightning’, ‘Seven Spirit Sect’, ‘Second Saviour Sect’, ‘True Light Sect’, ‘True Way Sect’, and ‘New Power Lord's Church’ as a banned xie jiao (cult) in November 1995. According to Chinese government statistics, COAG had four million members in 2014. However, COAG claims more than a million followers in a seven-level hierarchy. DFAT is unable to verify the number of COAG members practising in China. Chinese government sources claim most members are uneducated rural women aged around 50 years. However, academics suggest COAG membership also includes middle and upper class, Chinese males and females.

   3.108 Zhao Weishan, a physics teacher from Henan province who later fled to the United States, is claimed to have founded COAG in 1989. However, academics note COAG members have denied Zhao was their founder, and some claim a small  community existed before Zhao’s involvement. COAG adherents believe Jesus returned to earth and was incarnated as ‘Almighty God,’ a living person, sent ‘to bring the fullness of truth to purify and save humankind.’ Most of ‘Almighty God’s’ utterances are collected in the book ‘The Word Appears in the Flesh.’ COAG members also believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will save them from impending apocalypse. According to the COAG movement, ‘Almighty God’ came to inaugurate the third and final age of humanity, the Age of Kingdom, which follows the Age of Law (the Old Testament) and the Age of Grace (of Jesus).

   3.109 There is no formal liturgy in the COAG movement, nor sacraments or eucharist, as these are viewed by members as practices of the Age of Grace, not the Age of Kingdom. However, academics report COAG has a structural church system, with local and international leaders, and claim gathering is important to COAG members, who worship by meeting and discussing their understanding of ‘Almighty God’s’ words, listening to sermons and singing hymns.

   3.110 Although the movement never mentions the name of ‘Almighty God,’ nor any specific biographical details, academics believe ‘Almighty God’ identifies a Chinese woman known as ‘lightning Deng’ (Yang Xiangbin, the wife of Zhao Weishan). In 2000, Zhao and Yang Xiangbin moved to the United States and led the movement from New York. Academics note members refer to ‘Almighty God’ as ‘Almighty God,’ and not by any civil name, nor by any specific gender.

   3.111 COAG reportedly encourages members to break away from family, although academics claim the accusation that COAG’s theology is anti-family does not have any support in COAG’s scriptures, which teach that the family is part of Almighty God’s plan and reiterate Almighty God’s requirement to honour parents and be faithful spouses in the Age of Kingdom. COAG reportedly demands unconditional obedience from low-level believers.

   3.112 Academics claim the movement has been severely persecuted in China, and many COAG members, including national leader Ma Suoping (1969-2009), have been arrested or killed. According to statistics claimed by the movement, more than 400,000 members have been arrested in China to date. Security agencies have arrested large groups of sect members in Qinghai, Guizhou, Ningxia, Henan, Hubei,  injiang, Anhui and Liaoning provinces in recent years. DFAT is unable to verify these claims; however, academics cite semi-weekly references in Chinese State media reports regarding anti-COAG campaigns and arrests. State media reports detail abductions; extortion; beatings; murder; seduction; and aggressive proselytising as part of the group’s practice of recruiting new members and punishing non-believers, including those seeking to leave the group.

   3.113 In May 2014, six people, who the Chinese government claim were COAG members, reportedly beat a woman to death at a McDonald’s restaurant in Zhaoyuan, Shandong. Two of the six alleged perpetrators were executed in 2015. Three others received prison sentences of life, ten and seven years respectively for their roles in the attack. The sixth was a minor aged 12. The McDonald’s case triggered an official crackdown on ‘cult’ organisations. Academics claim the McDonald’s murder was not conducted by COAG, but instead perpetrated by an unrelated, but similar religious movement. Zhang Fan, a leader of the movement linked to the McDonald’s murder, denied she had ever been a member of COAG, but was executed in 2015.

   3.114 Sources report the government’s efforts to crackdown on Christian ‘cult’  organisations aim to identify and punish the leaders, with disciples viewed as victims. COAG in Australia (which denies connection to the McDonald’s attack) claims Chinese security agencies have monitored, intimidated, detained and mistreated its members in China since 2011, and its Annual Reports detail several such instances.  Such treatment would be consistent with government treatment of members of other banned organisations. Stigma associated with cults may make it difficult for members to find defence lawyers, and lawyers taking on their cases are often themselves  targets of adverse attention by authorities (see Human Rights Defenders (including Lawyers)).   DFAT is unable to verify the extent to which COAG is active in China.

7. DFAT’s assessment and report of some aspects of the Church of Almighty God as noted above appears not to fully correlate with the description and assessment of international academics who study new and emerging religions across the world.  Similarly, the suggestion that ordinary church adherents are ‘viewed as victims’ does not accord with general news reports and country information which suggest that ordinary members of banned religions (or ‘cults’) such as the COAG do appear to be targeted, harassed, prosecuted and punished rather than merely being treated as ‘victims’[1].  In a recent information publication authored by several academics in the field of new and emerging religions[2], the alternative names of the COAG (apart from ‘Eastern Lightning’) given by DFAT above are disputed as not being commonly used, or as referring to other organisations.  As noted above, a number of the allegations of various crimes (particularly the 2014 McDonalds Murder) linked to the COAG are suggested to have been linked to the COAG principally by the Chinese Government for propaganda purposes. 

   [1] See for example:  28 January 2019, and New Report accuses the CCP of mass-scale human rights violations (Human rights without frontiers) 11 March 2019

   [2] Church of Almighty God, an information booklet published under the auspices of the Center for Studies on New Religions (CESNUR)  and International Observatory of Religious Liberty of Refugees, June 2018. 

1. An examination of the available country information confirms that the COAG is reasonably identified as a new sect, cult or religion, which is rooted in Christianity.  The Church grew out of other banned Christian sects in China and claims that a new manifestation of the Christian God, who is identified as ‘Almighty God’, has come to China with new teachings. Scholars have identified a Chinese woman called Yang Xiangbin as the first central figure of the Church. Yang attended a local underground church (sometimes called a ‘house church’) that had split from the ‘Local Church’ or ‘The Shouters’. The Shouters are an underground Christian church in China that grew out of the Exclusive Brethren tradition. Like the Church, the Shouters are banned in China and claim to have been targeted by the government. A physics teacher from the northern city of Harbin named Zhao Weishan joined the Shouters before starting an independent Shouters movement. He later met with Yang and recorded her teachings, identifying her as a new manifestation of God.

2. The Church obscures information about Yang and adherents may not use, or be familiar, with her name. It also cautions that information that is obtained from outside the Church is unreliable and misleading. Zhao is sometimes referred to as the man who was ‘used’. This refers to his ‘use’ by the Holy Spirit to identify Yang as the second coming of God.

3. Central to the Church’s beliefs is the second coming of Christ in China.  The Almighty God had their sayings recorded in a book which now forms the basis for much of the COAG’s beliefs.[3]

   [3] The Word Appears in the Flesh, first published in 1997.

4. The Church’s beliefs are similar to some other millennial restorationist churches in that a second coming of Christ will usher in a new age. In the case of the COAG, that person came in the form of a Chinese woman who, like Jesus Christ, came as a human. She will not live forever.   With the coming of Almighty God, the world entered into a new age. Old Testament times are known as the ‘Age of the Law’, the following age, in which Jesus Christ came to earth, is called the ‘Age of Grace’. The new age, ushered in by Almighty God, is called the ‘Age of the Kingdom’. Upon the death of the Almighty God, the disasters prophesied in the biblical Book of Revelation will come to pass, including earthquakes, wars and famine.

5. The Church recognises members as having three basic beliefs: true belief in God, ‘good humanity’ and certainty that Almighty God (see History of the Church) is the returned Jesus Christ. 

6. As noted by DFAT, the country information reveals that the COAG does not have public or community services at a particular church or location.  Meetings are organised in small groups at the homes of members, and a range of security measures are taken to ensure secrecy and privacy include changing venues regularly, using only church (and not official) names of members, and monitoring the environment around members and gatherings to ensure no surveillance by authorities or neighbours.  Church gatherings or ‘fellowships’ are important to believers. Although they do not have a set practice, they might include singing hymns, sharing testimony of each other’s beliefs, sharing readings or listening to sermons.  Proselytization is an essential religious practice for adherents of the Church. According to Australian academic, Emily Dunn, it is a ‘duty for all believers’, though the Church itself specifically discourages forced conversion or proselytising to people who do not ‘believe gladly’ as part of its central rules. [4]

   [4] According to the ‘Ten Administrative Decrees that Must be Obeyed by God’s Chosen People in the Age of the Kingdom’, a church document:

   10. Kin who are not of the faith (your children, your husband or wife, your sisters or your parents, and so on) should not be forced into the Church. God’s household is not short of members, and there is no need to make up its numbers with people who have no use. All those who do not believe gladly must not be led into the Church. This decree is directed at all people.

7. I note that various derogatory descriptions of the COAG and its methods have been reported over the period since it appeared, including that it uses violence and abduction to recruit new members.  There is some reasonable doubt as to the reliability of such reports, and I note the claims here, but do not consider they are critical to an assessment of the COAG as a new religious movement (whether assessed to be a cult or not) and how it is currently viewed and ‘managed’ by the Chinese government.  It is fair to observe though, that like many Pentecostal Christian movements, membership of the church is urged and evangelised as the only legitimate pathway to enable participants to attain salvation when the end of this current ‘age’ comes to pass, thus using fear of eternal damnation as a motivator for ‘good’ or ‘appropriate’ behaviour and observance of church ideology.

8. Criticism of the COAG has also been made with claims that it requires members to shun, hurt or murder their family members.  As suggested in DFAT’s analysis, there appear to be few reliable public reports of such activities undertaken by church members which would support such a claim, and in the readily available church literature,[5] I was unable to observe any such directions, requirements or exhortations (though I acknowledge that I have only conducted a relatively superficial examination given the voluminous nature of publications).  Nonetheless, devotion to the new faith is central to the rules of the church doctrine, which instruct that the work of the COAG is more important than ‘prospects of your own flesh’ and encourages adherents to ‘be decisive about family matters’ in order to ‘wholeheartedly devote oneself to God’.[6]  General news reports about the situation for Christians in China suggest that family of members can be subjected to social and official ‘deprivation’ of opportunity in employment, education and health services, paying a heavy price for failing to report or resist the influence of banned organisations within intimate family environments.  Hence, due to the openly reported practice of pursuing and prosecuting church members and inflicting social isolation on their relations, the effect of adopting a devout COAG life can trigger an ongoing alienation of adherents from their families, to create a degree of ‘plausible deniability’ and which thus feeds in to the perception that the church forces members to shun family members.

   [5] The publications of the COAG are extensive and readily available online: 

   [6] The Ten Administrative Decrees that Must be Obeyed by God’s Chosen People in the Age of Kingdom, Church of Almighty god available online here:  >

   As noted above, according to the Chinese Criminal Code, ‘using’ a superstitious organisation or an evil religious organisation (both the COAG and Local Church are designated as such  ‘xie jiao’ organisations) can result in imprisonment of five to seven years or more[7]. Members of xie jaio are arrested and face court for their actions, and such arrests are regularly reported in the media.  According to multiple sources, police regularly carry out raids and surveillance on members of the COAG and other xie jiao religions, and enlist members of the public to report community members who behave in a suspicious manner or may be known as members of banned xie jiao organisations.[8]  The country information suggests that COAG members are unable to practice their faith without the fear of being found or reported, arrested and prosecuted.

   [7] Article 300, Chinese Criminal Code English translation from the Permanent Mission of the Peoples Republic of China to the UN:

   [8] Over 50 COAG Believers Arrested within 3 days in Shandong Bitter Winter, 12 May 2019.

9. Further, there are reports that members who are held in detention are subjected to torture and forced indoctrination, or that COAG members have died in custody in mysterious circumstances.[9] 

   [9] International Religious Freedom Report 2018:  China US Department of State 21 June 2019.

10. My assessment of the country information as a whole discloses that membership alone of the Church of Almighty God or any other banned xie jiao organisation is subject to strict and harsh punishment by the Government of China, exposing adherents to the risk of being harassed and pursued, arrested, subjected to lengthy detention or jail, and a program of deterrence which appears out of proportion to the community benefit on which the laws are purportedly based and taking into account the central tenets of the targeted organisations (particularly the churches of note in this case) and their aims and goals.  Persons perceived to be or found to be ordinary members face surveillance, harassment, pursuit, arrest, interrogation and imprisonment and those in a more senior positon within those organisations can expect harsher treatment, including interrogation, targeted social exclusion, imprisonment for many years and consequent social hardship.

11. Given that the prosecution of COAG members is undertaken according to the Chinese Government under the guise of Chinese criminal law, I have considered whether Article 300 is a law of general application, meaning that enforcement of the criminal law by arresting, prosecuting and imprisoning church adherents would not ordinarily constitute persecution.

12. According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:

    (d) Punishment

    56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.

    57. The above distinction may, however, occasionally be obscured. In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution.

    58. Secondly, there may be cases in which a person, besides fearing prosecution or punishment for a common law crime, may also have “well founded fear of persecution”. In such cases the person concerned is a refugee. It may, however, be necessary to consider whether the crime in question is not of such a serious character as to bring the applicant within the scope of one of the exclusion clauses.9

    59. In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.

    60. In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick. Moreover, recourse may usefully be had to the principles set out in the various international instruments relating to human rights, in particular the International Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded.

13. In Appellant S395/2002 v Minister for Immigration [& Multicultural Affairs (2003) 203 ALR 112], the issue before the High Court was whether laws against homosexuality in Bangladesh were “appropriate and adapted to achieving” a legitimate object. McHugh and Kirby JJ, [at 123], suggested that the test of whether persecution is made out in these circumstances will be as follows:

    If a person claims refugee status on the ground that the law of the country of his or her nationality penalises homosexual conduct, two questions always arise.  First, is there a real chance that the applicant will be prosecuted if returned to the country of nationality?  Second, are the prosecution and the potential penalty appropriate and adapted to achieving a legitimate object of the country of nationality?  In determining whether the prosecution and penalty can be classified as a legitimate object of that country, international human rights standards as well as the laws and culture of the country are relevant matters.  If the first of these questions is answered:  Yes, and the second:  No, the claim of refugee status must be upheld even if the applicant has conducted him or herself in a way that is likely to attract prosecution.’

14. I also note comments of Madjgwick J in NAVZ v MIMIA [2015] FCA 13 at [55]:

    Thus, the protection of religious freedom, encompassing all bona fide belief on religious matters, by the Convention, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, was and is a profoundly significant assertion of religious tolerance as a norm of international law and practice.  It represented a notable development in shared international conceptions of morality.  Implicit in that assertion is the centrality to human personality and dignity of individual choice of a religious belief or the lack or denial of any such.

15. I have considered whether Article 300 of the Chinese Criminal Code is a law which is discriminatory of its’ very nature.   On its face, the law seeks to criminalise involvement in dangerous or aberrant organisations, or the use of them to defraud or assault citizens. The Chinese government (as does every sovereign state) has a right to seek to protect its’ citizens and itself from what it deems to be aberrant or potentially dangerous social behaviour.  I am not satisfied that Article 300 is a law which is discriminatory on its’ face. 

16. However in this case, the law is used to criminalise involvement with organisations of particular religious or ‘cult’ practice, and does so in a manner which leaves the identification of those targeted  open to subjective official ‘designation’ as members of ‘superstitious sects or secret societies or evil religious organizations’.  Even though the law itself may not be discriminatory, the country information as discussed above reflects that the law is applied to target members of particular unauthorised churches (and particularly those who the Chinese Communist Party (CCP) sees as challenging or potentially challenging their authority) but is not used to target members of other churches - whether small and unauthorised or larger and ‘authorised’– even those which may hold broadly similar types of views and beliefs to the targeted churches.   The law is used to enable scrutiny, search, arrest, punishment and harassment of all adherents of small or new faiths at the government’s direction and discretion.   I am satisfied that Article 300 is applied in a discriminatory way by the Government of China to persecute members of the Church of Almighty God and certain other small house churches deemed to be xie jiao.  In reaching that conclusion, I have also taken into consideration that the acts of violence attributed to church members and referred to by the Chinese government publicly as meriting the ‘designation’ of the COAG as xie jiao (namely murder, forcible detention and assault) are readily able to be prosecuted by other sections of the criminal code, without targeting or identifying either perpetrator or victim on the basis of their faith.[10]   This suggests that Article 300 is able to be (and is being) used to suppress freedom of religion, and political or ideological opposition (or perceived opposition) to the CCP in a discriminatory fashion.

    [10] See for example Articles 232 (homicide),  234 (inflicting injury or severe injury on another person) 238 (unlawful detention or deprivation of freedom) and 239 (extortion) of the Chinese Criminal Code. Available in full here:  >

    In answer to the questions posed by the court in S395, the first answer is yes:  members of small or house churches and unauthorised churches are regularly prosecuted by the State in China (harassed, surveilled, arrested, interrogated and imprisoned for many years and in some cases, they and their families are subjected to social exclusion from essential services and employment).  The answer to the second question is No: I consider that the implementation, prosecution and potential penalties of the law are not adapted to attaining a legitimate object of the country but far exceed that object in severity, becoming instead a tool to oppress freedom of religion.

17. After taking all of these factors into consideration, my assessment of the country information as a whole suggests that adherents (including ordinary believers and leaders) of the COAG face significant physical harassment, lengthy detention and imprisonment, social and official ‘ostracism’ of both adherents and members of their families, and in some cases torture and assault at the hands of the Chinese government or its’ police and local authorities throughout the country.

    Consideration

18. The applicant entered Australia on a Chinese passport, on a [temporary] visa.  The information and evidence before me reflects that the applicant is a citizen of China and I find that she is.  I find that China is the country of her nationality and the receiving country for complementary protection purposes.  The applicant states in her application for protection that she has no right to enter or reside in any other country.  The information before me does not suggest that the applicant has such a right and I am satisfied that she does not.

19. As will be noted from my assessment of the country information above, the country information overwhelmingly suggests that the Chinese state considers the Church of Almighty God to be a cult and does not accept that the COAG is a legitimate religion.  The country information also overwhelmingly establishes that members of the COAG, including leaders and ordinary attendees, are forbidden from practicing their faith, are subject to surveillance and harassment, arbitrary arrest and lengthy detention merely for participating in (or to use the legislated Chinese term ‘utilising’) their faith – whether or not it is defined for our purposes as a church or a cult.  It follows from my assessment that whether the applicant has established that she is a genuine member of the Church of Almighty God is critical to my assessment about whether there is a real chance (in the sense that it is higher than a remote chance,) that on return to China, she will be persecuted because of her faith.   My focus in this review is therefore on whether I accept the applicant’s claims to be a member of the COAG – which in itself hinges on her credibility as a witness.

    The applicant’s credibility

20. The delegate did not find the applicant credible.  The delegate’s reasoning for this was based on several issues which he found with the applicant’s religious understanding of the COAG’s faith, inconsistency of accommodation evidence and implausibility of the applicant’s description of events.

21. Bearing in mind the difficulties and perceived errors in interpreting in the interview with the delegate outlined in the applicant’s own statutory declaration and from my own observation, I consider that it is appropriate to exercise considerable caution in placing too much weight on simple inconsistencies and a subjective assessment of the applicant’s religious knowledge when assessing her overall credibility.    In particular, I have borne in mind the observation by Gray J in Wang v MIMA:

    Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.[11]

    [11]           Wang v MIMA (2000) 105 FCR 548, per Gray J at [16].

1. I acknowledge that every faith has a range of devotees with varying levels of knowledge and devotion to the teachings of that faith, and an inability to produce knowledge about or quote passages from a holy book may not indicate any more than that the adherent has embraced the ideal behind the text and not committed the words themselves to memory.  Conversely, the ability to quote passages and religious ideas at length may simply be an indicator that the applicant has learned to do so for the purposes of strengthening their claim of being among the faithful.  

2. In addition, I observed first-hand the difficulty in interpreting some of the religious ‘ideas’ and ‘teachings’ of the church  from Chinese to English during the hearing, despite an excellent and responsive interpreter, and even though she had been given a list of some of the terminology used by the church to assist her in interpreting the terms when used.   I consider that in circumstances where such difficulties are encountered, care must be taken in assessing a person’s evidence due to the risk that either the questions or their answer may not have been adequately stated, understood and interpreted.  For example, I note that her evidence naming chapters of the holy book was interpreted vaguely rather than in the perhaps exact and peculiar language of the text which she gave – and that this unfortunate misinterpretation (with others) was then part of the reason why the delegate found that the applicant did not have the expected depth of knowledge of her professed faith to satisfy him or her that she was a genuine adherent of that faith.   During the hearing, I, on the other hand, observed that the applicant exhibited a solid knowledge of the COAG tenets, practice and experience in China (and Australia) and described events without hesitation. In this review, I consider that the consistency and detail with which the applicant has described her involvement with the church and the essential claims in her case and her direct evidence must be given considerable weight in assessing her credibility, particularly given that her evidence is generally consistent with the country information about treatment of COAG members in China.

3. I note and have also taken into account the Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility, in particular: 

   21. Members need to be mindful of the difficulties of assessing oral evidence provided through an interpreter.

   22. Members need to be mindful that a person may be anxious or nervous due to the environment of a hearing and the significance of the outcome. A person from a different social and cultural environment may experience bewilderment and anxiety. The educational, social and cultural background of a person may affect the manner in which a person provides his or her evidence and the depth of understanding of particular concepts. A person may have had traumatic experiences or be suffering from a disorder or illness which may affect his or her ability to give evidence, his or her memory or ability to observe and recall specific events or details. There may also be mistrust in speaking freely to people in positions of authority.

4. Overall, and after considering the detail, volume and clarity of the applicant’s evidence, and making some allowance for the passage of time, the distress of her experiences and translation difficulties, I found the applicant’s evidence about her membership and practice within the COAG and her experience of persecution in China to be internally consistent, coherent and credible.

   Findings of Fact

5. I accept that the applicant is a devout member of the Church of Almighty God (COAG) and that COAG is a new branch or sect grounded in the Christian religion.  I accept that she has participated in COAG activities since 2005.  I accept that she joined the faith after coming to a personal crisis of confidence about human nature and ‘corruption’ in her workplaces.  I accept that she was an active member (including performing the duties of a Church leader) of the COAG in China, that she regularly attended meetings to fellowship with other members at their private homes, organised meetings, delivered secret communications, assisted with ordinary church business and had contact with a large number of fellow devotees at various locations where she was active before coming to Australia.  I accept that all members of the COAG used ‘church names’ in discussions and contacts so that they could protect their ‘legal’ identities and impose a level of protection from official scrutiny, and also so that they could not reveal too much about each other in the event that they were questioned (and tortured) by police.  I accept that the applicant continues her devotion in Australia and would do so if she were to return to China.

6. I accept that the applicant was close to two separate incidents where church members who knew her were arrested, detained and apparently subjected to interrogation and potentially to torture in the government’s desire to identify church members.  I consider that the applicant’s evidence and the fact that she was able to get a passport does suggest that at least by the time she fled the country, her official name (as opposed to her church name) had not been discovered by the authorities.  Nonetheless, I accept that she has been warned that her existence as a leader of the church affiliated with those arrested is known and that she is of interest to the police, even though they may still not have ascertained her true identity.

7. I accept that the applicant is alienated from her family due to her involvement in the church.  I note that despite having the freedom to do so in Australia, she has chosen not to contact them because she fears that this will alert the authorities to her being outside China ‘too long’, and they may discover her reasons for being outside China; or, if the authorities already know of her membership of the church, that it will put her family at risk of arrest and social exclusion by the authorities for tolerating her membership and failing to ‘turn her in’.

8. I note that the applicant admits that she lied in her application for a visa in Australia, falsely claiming that she was married when in reality, she intended to seek protection once she had arrived. The applicant’s application for protection was lodged less than three months after she arrived. Whilst I accept that the applicant has knowingly obtained her original visa using false information, I also accept her evidence that she did so out of desperation in her desire to escape persecution. She believed that it was only a matter of time before she was arrested, tortured and imprisoned simply for participating in COAG activities, and wanted to get out of the country to escape those risks. I note that the departmental file contained a document claimed to be subject to a certificate under s.438(1)(a) of the Migration Act, as ‘an internal working document and business affairs.’ The information was related to her application for [temporary] visa application and the claim therein to be married. As the applicant had freely acknowledged the potentially adverse information referred to in the document, and had explained her reasons to both the delegate and to myself for making that claim, I considered that the document itself was of no probative value. I did not take it into consideration or make a formal determination about the validity or otherwise of the certificate. The applicant freely acknowledged that she had provided false information in her [temporary] visa application about her marital status so any potentially adverse material in the certificated document which confirmed that fact was superfluous and of no additional weight.

   Conclusion

9. I have found that the applicant is a genuine member of the Church of Almighty God, and that she joined the church in China and attended meetings, has a profile as a leader in the church, and that she has links to other members who have been arrested by police and imprisoned.  I have also considered whether the applicant would continue to practice her faith if she were to return to China. Based on her history, her expressed devotion to the faith both in China and in Australia and her emphatic evidence that she would do so, I accept that the applicant would continue to practice if she were to return to China.  I am satisfied that she would therefore face a real chance of coming to the attention of the Chinese authorities on return, and of being persecuted for the essential and significant reason of her membership of the COAG religion if she returns to China.  I am satisfied that the real chance of persecution involves serious harm, namely significant personal harassment, lengthy detention and imprisonment, social and official ‘ostracism’ (that is, denial of access to basic services and capacity to earn a livelihood), and potentially torture and assault at the hands of authorities.  Based on the country information as discussed above and my findings of fact, I also find that the persecution involves systematic and discriminatory conduct on the part of the Chinese Government towards COAG adherents.

10. I note that the Chinese government, its’ police and local authorities are the persecutors in this case, and that they operate throughout the country.  I am satisfied that the real chance of persecution relates to all areas of the receiving country.   

11. Given that it is the government and its’ authorities that are the persecutors in this instance, I find that the Chinese Government, its’ police and authorities are unwilling to provide the applicant with protection from persecution.  I find that effective protection measures are unavailable to the applicant in China.   

12. In conclusion, having accepted the applicant’s claims to be a member of the COAG and that she has a well-founded fear of persecution in China, I find that the applicant is a refugee as described in s.5(1).   

13. 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).

    DECISION

14. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Anne Grant
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – 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; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …

    
    

 
Article 300.   Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or sabotages the implementation of the state's laws and executive regulations by utilizing superstition is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment; when circumstances are particularly serious, to not less than seven years of fixed-term imprisonment.
Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or cheats others by utilizing superstition, thereby giving rise to the death of people is to be punished in accordance with the previous paragraph.
Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or has illicit sexual relations with women, defraud money and property by utilizing superstition is to be convicted and punished in accordance with the regulations of articles 236, 266 of the law.