1621121 (Refugee)

[2020] AATA 775

1621121 (Refugee) [2020] AATA 775 (24 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621121

COUNTRY OF REFERENCE:                   China

MEMBER:David Barker

DATE:24 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 March 2020 at 4:21pm

CATCHWORDS

REFUGEE – Protection visa – China – religion – Roman Catholic – not a genuine and committed Catholic Christian – inconsistencies and discrepancies in the applicant’s evidence – an ordinary church parishioner – credibility concerns – amend his story to achieve desired visa outcome – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 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 28 January 2016. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.

   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–5LA, which are extracted in the attachment to this decision.

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

   Mandatory considerations

8. In accordance with Ministerial Direction No.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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in this case are whether the applicant has a well-founded fear of being persecuted in China for one or more of the five reasons set out in s.5J and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

10. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China, including that referred to by the delegate in the decision record, a copy of which was provided with the review application.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    COUNTRY INFORMATION

12. The Department of Foreign Affairs and Trade (DFAT) Country Information Report: People’s Republic of China, dated 3 October 2019 provides the following relevant information:

    RELIGION

    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 Chinese Communist Party (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.

    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 CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including 6,000 Catholic churches and places of assembly spread across 98 dioceses.

    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 .... Catholics (12 million, of which 6 million are registered)

    Government framework regarding religion

    Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

    Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state
    organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

    Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949.

    In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. 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.

    DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

    Christians

    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. However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

    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.

    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.

    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).

    Catholics

    DFAT assesses 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.

    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. Sources report this is no longer required in areas where the Catholic Church has built trust with local officials over time.

13. In relation to baptism practices amongst Catholics in China, the Tribunal has reviewed a Background Paper of the Refugee Review Tribunal titled Catholicism in China and dated December 2012:

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

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

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

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

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

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

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

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

14. In relation to Catholic underground churches, a 2018 Atlas of Religion in China states:

    In 1989, an underground Catholic Bishops Conference operated alongside the official CCPA/BCCCC. The party-state cracked down on the underground bishops and priests severely, including jailing, placing them under house arrest, or putting them in secret detention. Interestingly, it was reported that the underground bishops managed to hold a conference in a prison. Therefore, up until the end of the twentieth century, underground Catholics have remained in the black market of religion. However, in recent years, the
    

    [7] 'Atlas of Religion in China: Social and Geographical Contexts', Fenggang Yang, Brill, 4 September 2018, p.56,

    20190207150408

    suppression has become less severe and more sporadic, so that many underground clergy are able to conduct Mass and perform the sacraments with fewer disturbances by the authorities.[7]

15. In relation to the ordination of Catholic bishops, in September 2018, the Vatican and China reached a provisional agreement that would allow the Pope to rehabilitate seven CCPA bishops previously excommunicated in return for a veto over any future appointment by the Chinese government. During 2018, at least two underground bishops were replaced by government-approved bishops.[8] In August 2019, the first bishop since the 2018 agreement was ordained in Jining, Inner Mongolia.[9] Reportedly, authorities feel comfortable with Bishop Yao who is described as ‘low-profile’ compared to his predecessor who has been vocal in rejecting the government’s role in religion. A further 20 bishops are reportedly awaiting their appointments to be ratified by the Chinese government. The ordinations seek to end decades of animosity and estrangement between the ‘underground’ Catholics loyal to the Vatican and Chinese government-sanctioned churches.[10]

    [8] ‘International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States

    Department of State, 21 June 2019, Section II, 2019062415330

    [9] ‘First bishop ordained since Sino-Vatican deal’, UCA News, 26 August 2019, 20190829135334

    [10] ‘In Landmark Ceremony, a Catholic Bishop Is Installed in China’, Ian Johnson, The New York Times, 28

    August 2019, 20190829112401

16. The Chinese government has taken measures against bishops who remain unregistered and unapproved by the state.[11] During 2018 and 2019, authorities in Fujian province attended the premises of various unregistered churches and requested that they register their churches with the Chinese Patriotic Catholic Association (CPCA).[12]

    [11] International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)’, United States

    [12] 'Underground Catholic Churches Closed in Fuzhou Archdiocese', Bitter Winter, 17 December 2018,

    20190327101020;

17. In relation to circumstances in Fujian province, DFAT reports that, in general, ‘individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the CCP.’ DFAT further advises that the CCP is ‘largely indifferent’ to individual religious practice (although Party members are not permitted to follow any faith), but it does obstruct religious practice at an organisational level. This DFAT report further indicates that in general, sources indicate that Fujian authorities tolerate unregistered churches who meet discreetly in small congregations.[13]

    Hukou (household registration) system

    The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases, face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities. The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities.

    The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have historically had tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) have been generally more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.

    In April 2019, the National Development and Reform Commission announced the 2019 Urbanisation Plan, which relaxed hukou residency restrictions in small and medium-sized cities. The 2019 Urbanisation plan requires cities with populations between one and three million to end all household registration restrictions under the hukou system. Cities with populations between three and five million will relax restrictions on new migrants and remove limits on key population groups, including graduates of universities and vocational colleges. Small and medium-sized cities and towns of under one million permanent residents have already gradually lifted restrictions on household registration. In addition to loosening hukou restrictions, the plan directs local governments to promote basic public services for permanent residents and further develop urban infrastructure to handle increases in population.[14]

    Passports

    According to the Passport Law (2006), ordinary passport applicants must apply in person to the Entry-Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. Applicants must provide their RIC, hukou, recent photos, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days. If a passport application is refused, reasons for the refusal are provided in writing and the applicant is informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passports vary according to location but are considered affordable.

    An ordinary passport records the holder's name, sex, date and place of birth, the date of issue, term of validity and place of issue of the passport, and the issuing authority. The term of validity of an ordinary passport varies according to age of the passport holder. Passports are readable visually and by computer and contain anti-forgery properties. The sale or use of a forged passport is a criminal offence.

    Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials. DFAT is also aware security authorities have recalled and held Uighur and Tibetan passports.

    [13] DFAT Thematic Report Fujian Province, Department of Foreign Affairs and Trade (DFAT), 16 December 2016

    [14] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp 70–71, paras [5.34]–[5.36]

    Departure from China

1. DFAT’s Country Information Report: People’s Republic of China, dated 3 October 2019 states:

   Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.[15]

   [15] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 71–72, paras [5.40]–[5.43].

2. A DFAT Thematic Report on Fujian province, People’s Republic of China, dated 16 December 2016 provides the following information:

   The Exit and Entry Administration Bureau under the provincial Public Security Department monitors who exits and enters Fujian, both via airports and through other means of public transport which require citizens to show their national identity cards. Given recent technological developments, DFAT considers it highly likely that there is a centralised list of high-profile individuals who are prevented from traveling internationally, and that this list is available to relevant security agencies.

   DFAT is not aware of any evidence that suggests a failed asylum seeker returning to Fujian would be distinguishable from the broader community or susceptible to any form of discrimination or violence. An asylum seeker returning to Fujian who had or was perceived to have openly expressed dissenting political views or criticised the Chinese Communist Party and was therefore on the centralised list and/or considered high-profile may be treated adversely in line with the conditions outlined in ‘Political Opinion’.[16]

   [16] DFAT, Thematic Report Fujian Province, People’s Republic of China 2016, 16 December 2016, pp. 16–17, paras [5.6]–[5.7].

3. The Tribunal notes that the US Department of State reported that the Chinese government permitted legal emigration and foreign travel for most citizens. Government employees and retirees, especially from the military, continued to face foreign travel restrictions. The government expanded the use of exit controls for departing passengers at airports and other border crossings to deny foreign travel to some dissidents and persons employed in government posts. Border officials and police cited threats to “national security” as the reason for refusing permission to leave the country. Authorities stopped most such persons at the airport at the time of their attempted travel.[17]

   [17] US Department of State, Country Reports on Human Rights Practices 2018 – China, 2018, p. 41, (accessed 30 May 2019).

4. A Canadian Immigration and Refugee Board research report, dated 6 March 2014, on exit procedures in China stated that airport officials have access to the Public Security Bureau’s online database of citizens who have been convicted of crimes or are wanted by authorities, and that officials would often confiscate passports held by individuals deemed unsuitable for foreign travel.[18] The Board produced another report on 22 September 2015, which noted that a person may be requested to produce their passport up to four times at the airport, and will be scanned at the airline check-in and the departure counter.[19]

   Applicant claims

   [18] Immigration and Refugee Board of Canada, China: Exit controls and security measures at airports for Chinese citizens travelling overseas, including procedures at check points and the use of computerized identity verification; sharing of information with officials at airports¸6 March 2014, CHN104761.E (accessed 10 May 2019).

   [19] Immigration and Refugee Board of Canada, China: Information on electronic/biometric passports, including security features, Radio Frequency ID (RFID) technology and wireless tracking capacity; exit procedures at international airports, including e-passport verification, security checkpoints, and the use of facial recognition technology, 22 September 2015, CHN105049.E, (accessed 10 May 2019).

   Summary of claims

5. According to the information provided in his application for a protection visa, the applicant is a Chinese national born in Fuqing, Fujian province, China in [year]. He claims to be a Roman Catholic. He claims he moved to Harbin City, Heilongjiang province, China in June 1996 and that he married in June 2001 and has a son, born [year].

6. The applicant departed China legally, using a passport issued in his own name [in] 2015. He entered Australia [in] November 2015 on a Visitor visa issued to him on 19 November 2015.

7. The applicant’s claims, summarised from his written statement and from responses in his application for a protection visa are as follows:

   • Catholics are persecuted in China due to central government policies;
   • People from the Chinese Patriotic Catholic Association (CPCA) , Religion Bureau and Chinese Public Security Bureau (PSB) have never stopped persecuting the Catholics in China and since President Xi Jinping came into power the policy has been tightened and tightened more;
   • His parents are both Catholics, as are other relatives, his father non-practising, but his mother actively practising;
   • He suffered persecution from the Chinese authorities, namely the Chinese Patriotic Catholic Association (CPCA) and the PSB, because of his religious faith;
   • During his youth he was present when fellow church members were physically assaulted. When this behaviour was challenged, the authorities said it was because they were at illegal religious gatherings;
   • He was detained by the Chinese authorities, for six days in or around 1995, when he was [age] years old. During his detention he was beaten and forced to sign a confession. He was released because his parents paid money to the authorities;
   • He required a month’s hospital treatment after he was released;
   • About a year later, in August 1996, officers from the PSB and the CPCA came to arrest him again, but he escaped from their car and ran away;
   • The authorities pressured his mother to hand him in and rather than do so and out of concern for his safety, his parents sent him from his home town in Fujian province to [Harbin], Heilongjiang province;
   • His mother was then detained for [days] and suffered permanent physical impairments as a result of her detention;
   • His life in Harbin was difficult because he was never allowed to have his hukou household registration moved from Fujian to Harbin;
   • In 1999 he met his wife who was also a Catholic. They have been unable to formally marry, because the PSB of Fujian refused to issue the relevant certificate. His wife and son have not been able to live with him in their own household because of the difficulties with household registration;
   • He was in his church participating in Mass [in] March 2015 when the Chinese authorities raided. Two priests were removed, attendees were warned and the church was closed down;

   ·He came to Australia to seek refuge because he wants to have freedom of religion;

   ·When he was in China, he had fear of being arrested by the Chinese authorities for going to an unauthorised Catholic church to practise his religious faith;

   ·If he returns to China, he will be deprived of freedom to practise his religious faith in Roman Catholicism;

   ·If he returns to China he will be seriously harmed again by the CPCA and the Chinese PSB;

   ·He delayed applying for protection when he came to Australia because he was worried about the safety of his wife and son;

   ·In terms of where he may relocate to reside, if he were to return to China, he may return to Heilongjiang, or he may move back to Fujian. He may also move to other parts of China. However, since it is the same policy of the Central Government, the suppression of religious freedom is the same everywhere in China.

8. Documents provided to the Department by the applicant in support of his protection claims included:

   ·a statement of claims written by the applicant;

   ·a written submission by his representative;

   ·print-outs of four published items:

   a)China Takes Aim at Western Ideas, New York Times, 2013/08/20

   b)Religion With 'Chinese Characteristics' : Persecution and Control in Xi Jinping's China, Capitol Visitor Centre, 23 July 2015 – Communist Government Increases Persecution of Christians, by Steve Byas, 30 July 2005 – States Commission on International Religious Freedom, Annual Report 2015

   Departmental interview

9. The applicant attended a protection visa interview with Officers from the Department on 10 November 2016. The delegate’s decision record notes the applicant provided, amongst other things, the following information during the protection visa interview:

   ·When asked why his parents sent him to Heilongjiang province in 1996, the applicant responded that they sent him there because he had an uncle living there temporarily at the time;

   ·When asked why he did not bring his wife and son to Australia with him, the applicant responded that his wife did not have the chance to get a visa, plus he was in a hurry. She applied for a visa, in Heilongjiang, but she was refused. The applicant went to Fujian and used an agent there. He did not use a Fujian agent for his wife because her hukou is based in Heilongjiang. They did not apply for a visa for their son, as they intended that he be looked after by his [grandparents] in China;

   ·When asked why he had come to Australia, the applicant responded that he came because he was being persecuted for being Catholic. Friends from his church had suggested he try going to Australia because there was religious freedom here;

   ·When asked for his religious history, the applicant indicated that he is Roman Catholic. He said that his mother is also Catholic, but his father has no religion. His mother was Catholic at the time he was born, and he was raised to be Catholic by her. His father is nominally Catholic, but is no longer interested. His parents divorced approximately ten years ago. He was baptised in China when he was a child. In 2015 he went to a pre-baptism class in China for two months and was baptised again;

   ·When asked for his son’s religion, the applicant responded that he is Catholic. When asked if his son has been baptised, the applicant responded in the negative;

   ·When asked about his church attendance in China the applicant indicated that he attended a Catholic Church that he named as [Church 1]in Harbin, and that this is the main venue of Catholicism in Heilongjiang province. When asked for the address of this church, the applicant indicated it was [Address 1];

   ·The applicant said that he attended the church each Sunday. When asked if that church was in a public building, the applicant responded in the affirmative. When asked if it had a cross displayed on the outside of the building, the applicant again responded in the affirmative. When asked if it was a registered church, the applicant responded that he does not know, as he does not know what is meant by ‘registered church’;

   ·When asked when he started going to [Church 1] the applicant responded that it was two or three years previously, in either 2013 or 2014. When asked if his wife and son still go to the same church, the applicant responded in the affirmative. He also continued going to the same church, which he claimed was the main Catholic Church in Harbin, following his return from Fujian in 2015. He reported that this church was relatively safe and open to the public and was close to where he was living;

   ·When asked if he would be prepared to attend regularly a government-registered Catholic Church of the Catholic Patriotic Association if he returned to China, the applicant indicated that he did not really understand. He said that he would only be looking for priests that have been approved by the Pope. He said that he would not go into random churches and that they do have to go to large churches for Mass, because if they go to a small place for a religious gathering, the police, church officials and officers from the Religious Affairs Bureau would tell them to cease;

   ·     The applicant admitted that he would go to an officially registered church if the priest had been approved by the Pope;

   ·     The applicant was asked for confirmation that:

   a)   he was last detained by the Chinese police in April 1996 in Fujian;

   b)   he has never been detained by the Heilongjiang police for any reason; and

   c)    he has therefore not been detained or arrested by the Chinese police for the past 20 years.

   ·     The applicant responded in the affirmative to each of the three aforementioned points, but claimed that the Heilongjiang police have warned him on several occasions;

   ·When asked if anybody in his family, including his wife, his parents, his wife’s parents, or any member of his extended family, had been detained and/or arrested by the police in China at any time during the past 20 years because of attending a Catholic Church, the applicant responded in the negative, stating the last arrest was that of his mother in 1996.

10. Following the interview, the applicant provided the Department with further documents, including:

    ·Certificate of Baptism, dated [date] 2015;

    ·Two photographs, one of his baptism on [date] 2015 and one taken during a mass in the current church attended by the applicant in Australia;

    ·Support letter, from [Mr A], President of [Organisation 1], dated 2 October 2016;

    ·Support letter, from Fr. [B], Chaplain Pastor, [Organisation 1], dated 16 October 2016.

    The delegate’s decision record

11. The delegate, in summarising why they were not satisfied the applicant has a well-founded fear of persecution for the reasons mentioned in s.5J(1)(a) of the Act, should he return to China, at the time of their decision in November 2016, or in the reasonably foreseeable future, found the applicant’s claims to have been baptised twice as a Roman Catholic in China unconvincing. The delegate also viewed the applicant and his wife’s reported choice to not baptise their son as an indicator the applicant was not raised as a Roman Catholic in China. The delegate accepted the applicant attended a Catholic Church in Harbin from in or around 2013 or 2014, but found this was an officially registered Catholic Church, governed by the CPCA. The delegate noted the applicant’s concession that he was aware a bishop approved by the CPCA was appointed to [Church 1] in 2014 and that he continued to attend this church following the appointment of the government-sanctioned bishop. In summarising why they were not convinced the applicant was a refugee, the delegate, amongst other things stated:

    I also note that, according to the applicant's own verbal evidence at interview, he attended an officially registered Catholic Church in Harbin, even after becoming aware that its bishop was an appointee of the Chinese Government and not of the Pope, after his claimed baptism in mid-2015. Therefore, even if I am wrong and the applicant is a genuine and committed Catholic Christian, the evidence before me is that he has been willing to abide by the Chinese Government dictates and attend an officially registered Catholic Church. For this reason I am not satisfied that the applicant has ever been involved with the unofficial underground Catholic Church in Heilongjiang Province.

    Based on my findings that the applicant is not a genuine and committed Catholic Christian, and based on my finding that even if he is a practising Catholic Christian he has nevertheless been willing to practise his faith in the officially registered Catholic Church in China, I find that the Chinese authorities will have no adverse interest in the applicant if he returns to China. I find that any fear of future persecution that he has expressed or inferred is not well-founded. I also find that the applicant was not arrested, detained, beaten or otherwise physically mistreated by the Chinese authorities in the past for attending an unregistered Catholic Christian church.

    On the basis of the above considerations I find that there is no real chance that the applicant would be persecuted for the reason of religion if he was to return to the PRC.

    The hearing

12. The applicant appeared before the Tribunal to give oral evidence and present arguments at a hearing held on 5 February 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

13. The applicant gave evidence at hearing that he thinks that he came to Australia in November 2015. He arrived on a Tourist visa which he was not allowed to apply for himself, because the government would not allow this. At a further point in the hearing he explained that he had applied for a visa to come to Australia previously and that this application was refused. He said that he had assistance from an agent and that he did not sign the tourist visa application and that he is unsure what information would have been entered on to the tourist visa application.

14. The applicant gave evidence that he applied for the protection visa within a month of his arrival in Australia and that he had assistance from the migration agent currently representing him. The applicant attested to the truthful and correct nature of the information provided with his protection visa application and the claims made on the basis of this information.

15. The applicant gave evidence at hearing that he had no difficulty getting a passport issued to him in July 2015, because he got an agent to arrange it for him in Fujian province. He said that he was unable to deal with the Chinese authorities himself, because of restrictions imposed upon him because of his religious beliefs.

16. The applicant gave evidence that he has no relatives in Australia and that his relatives in China consist of his wife, son, parents and an [sister]. He said that he married in 2000 and that his child is now [age] years of age. The applicant gave evidence that his wife and son live in Harbin City, whilst his parents and [sister] live in Fujian province. He said that his wife works [and] that his son is attending [school]. He said his son’s grades are not that good and that resulted in his attending [specialised school]. The applicant indicated his wife and son are still not registered on the same hukou registration card as him, with their registration being an urban hukou registration for Harbin City, whilst his remains a village hukou registration from Fujian.

17. The applicant gave evidence at hearing that he has been a Roman Catholic since he was a child. He said that his parents and [sister] are all practising Catholics, who attend church services on a regular basis.

18. The applicant gave evidence that his wife is a Catholic, having grown up in a family where her parents and other relatives were Catholics. He said that from 1996 until he came to Australia in 2015 he attended a church with her which was located in [location], Harbin City ([Church 1]). He said their son would also accompany them to services at [Church 1] from the time he was a young boy. The applicant then claimed that [Church 1] was eradicated by the Chinese government in 2013. When the Tribunal noted that this claim was not consistent with his earlier claim to have regularly attended services at this Church until coming to Australia in 2015, the applicant varied his claim and contended [Church 1] was closed by the Chinese government in 2017. The applicant claimed his wife then started attending a church in [District 1] of Harbin City.

1. In response to a question as to what his Christian faith means to him, the applicant said that it lets him redeem his sins and that through his belief in the God, Jesus Christ and the wine miracle, he can gain eternal life. He said that Catholic doctrine suits him, as through believing in Roman Catholic doctrine he has freedom of religion and can believe what he feels like. He said this is in contrast to Catholic churches that are controlled by the Chinese government.

2. As to how he applies Roman Catholic doctrine in his everyday life, the applicant said that he attends mass on a weekly basis, where he prays, reads the Bible and communicates with other believers. The applicant was able to discuss Jesus Christ and was aware that he was crucified on the cross. He said that this was because all people sin and by the crucifixion and suffering on the cross ordinary people’s sins were redeemed by the God and Jesus, who are part of the Trinity, as though they are one. The applicant said there is a special diet and special days, such as Lent and that he goes to confession when he attends church services. He was not able to recall any of the special rules or a commandment associated with Catholic belief, but was aware that the basic teaching of Christianity is to avoid doing crimes and to be kind.

3. The Tribunal invited the applicant to comment on a number of concerns raised by the delegate, including that he had, when interviewed by the Department in September 2016, displayed little knowledge of Jesus Christ. The applicant said that this was because the context of the Departmental interview made him nervous and mixed up. He said that this was because it reminded him of the multiple times he was arrested and questioned by the PSB and CPCA. When asked to clarify what he meant by ‘multiple times’, the applicant referred to incidents that occurred in 1995 and 1996 in Fujian and an incident in Harbin in 2013.

4. In relation to the 2013 incident, the applicant said this was where he and other believers were detained along with two priests during a church service where the congregation were saying prayers for two priests who had been injured in a motor vehicle accident after the New Year celebrations. He said that he was detained for around eight hours, during which time he was intimidated and warned that he should not attend gatherings the authorities regarded as illegal gatherings. The applicant said that he was only released when he signed a statement guaranteeing he would never again attend such a gathering.

5. In relation to concerns raised by the delegate in response to the applicant’s claim to have been baptised twice whilst he was in China, the applicant said that there were maybe mistakes in how he had expressed himself when questioned about this during the September 2016 interview. At hearing the applicant said that he was baptised in 1995 and whilst he had told the Department he was also baptised as a younger child, this first baptism was not recognised by the church authorities. The applicant reiterated that he thought he was baptised as a child, but has poor recall of this and no records, as it was a chaotic period in which gatherings were more family than location based. He said that the priest would travel from village to village and no records were kept because of the government surveillance. The applicant said the second, more formal baptism was a big event in which lots of other people were also baptised.

6. In relation to the significance of baptism in Christian beliefs, the applicant said that it meant that one was accepted by God and that past sins were cleansed and redeemed. As to the delegate’s concern that the applicant and his wife had not thought it appropriate to have their son baptised, the applicant confirmed that his son remained not baptised. He said that this was because it was necessary for his son to attend a baptism preparation class and that such classes were not held every year in the part of China where they lived. In response to the Tribunal noting the applicant’s son’s age and that it seemed improbable that there would not have been a suitable baptism preparation class that he could have attended by the age of [age] years, the applicant said that the classes were three months long. Further to this, he said that his son had lived with his [grandmother] and not with the applicant and his wife and that school had taken priority over other things.

7. In relation to whether he attends church in Australia, the applicant said he goes to services at a church in [Suburb 1] every Sunday and has done so since December 2015.

8. The Tribunal noted that documents provided by the applicant in support of his claims include support letters from Father [B] and Mr [C] from [Church 2] [Suburb 1] and [Organisation 1]. The Tribunal noted these support letters were brief and of a generic nature and asked the applicant what these two people could likely tell the Tribunal about his attendance at their church if contacted on the telephone numbers provided in the support letters. At that point the applicant emphasised that Father [B] was quite elderly and that he does not go to the church every week. He said that his agent had arranged for the support letters for him and a number of other brothers and sisters. He said that upon request Father [B] signs the letters. He said that it was the same for letters signed by [the] President of [Organisation 1]. The applicant gave evidence at hearing that he had not actually communicated with Father [B], as the father does not speak Chinese and the applicant does not speak the English language.

9. As to why the applicant fears to return to China, at hearing he said that if he returns to China he will continue to be persecuted by the Chinese religious affairs department. In support of this claim he contended the resistance at the local authority level to registering his son on his hukou certificate is evidence of the persecution he has suffered. He contended that this resulted in him fearing to live in one place for too long. He said that if he returned to China he would face arrest and persecution and would still not be able to live in one location for too long.

10. The applicant said that if he were to return to China he would not have the freedom of religious belief that he has in Australia and he conjectured that things may now be more restrictive in China than they were at the time he departed in 2015.

11. At hearing, the applicant claimed he would be arrested and imprisoned if he returned to China because of his involvement in religious activities in Fujian up until he relocated to Harbin in 1996. He said that this was because he had been arrested multiple times and that the Chinese authorities must have kept records of his arrests in 1995, 1996 and 2013. He said that the PSB and religious affairs department have never stopped their efforts to get his relatives to reveal details about him. When asked to provide more details of his claimed arrest in 2013, the applicant conceded that he was not formally arrested or charged, as it was two priests that the authorities were after. He said that he and other people who had attended the service at [Church 1] were detained, questioned and then released.

12. The applicant said that throughout the years that he has been in Australia, the PSB and CPCA have constantly tried to find out his whereabouts through visiting and questioning his wife in Harbin and his parents and other relatives in Fujian. He said this is because of the problems in Tibet and other regions in China that have caused increased restrictions on Catholics in China.

13. As to why the PSB and what the applicant referred to as the religious affairs department would have a specific interest in his whereabouts, the applicant said this is because they refuse to believe that he is no longer in China. He said that the authorities continue to believe that his parents have hidden him somewhere in China. The Tribunal put to the applicant that it had some difficulty understanding how the Chinese authorities would be unaware he had departed from China in light of country information, which suggests that the PSB and other government authorities maintain tight control over airports and other departure points from China. In response the applicant contended that the religious affairs department is a separate body and that they are not actually part of the Chinese government and therefore would not be as aware of his departure in 2015. The applicant suggested that the religious affairs department and PSB may just ask about him when they visit his parents as a way of pressuring his family. He also suggested the government control over departure points in China was not as effective when he left in 2015 and that could account for why the authorities suspect he is still hiding somewhere in China.

14. In relation to the delegate’s finding the applicant had attended the main church in Harbin and that he reported at interview that his wife and son continued to attend what appeared to be a state-authorised and registered Catholic church in Harbin, the applicant conceded at hearing that he had attended a big church in Harbin. He said that the Roman Catholic church which he attended may have made compromises with the CCP and that there may have been some priests there who were appointed by the CCP. He said that the main priest at the church he used to attend in Harbin was appointed by the Roman Catholic Church, but that he was removed and replaced by a priest appointed by the CCP. He said that since that occurred, the nature of the church changed and that this contributed to its closure in 2017.

15. In response to a question as to whether his wife and son had suffered any persecution since he came to Australia in 2015, the applicant said that she had twice been denied a visa allowing her to come to Australia.

16. The applicant gave evidence that his wife has not gone to random churches since [Church 1] closed in 2017. He said that this is because she is unsure which churches are approved by the CCP and which are approved by the Roman Catholic Church. In response to the Tribunal putting to the applicant that his evidence at hearing was that his wife had gone to a church in [District 1] of Harbin City ever since [Church 1] closed down, the applicant said that sometimes, on more formal and special occasions she may go to an actual church, with brothers and sisters she is familiar with, but that other times she has gatherings with a small number of fellow believers. The applicant claimed that his earlier reference to her attending a church in the [District 1] was actually a reference to her attending a small gathering of believers which was not located at an actual church.

17. In response to the Tribunal expressing concern that the applicant appeared to be shaping his responses at hearing to explain inconsistencies in his evidence, the applicant denied this was the case. He then said that after 2017 his wife could only attend small group gatherings and only on holidays and special dates would she go to a large church, such as the one located in the [District 1] of Harbin.

18. The applicant confirmed that during the September 2016 interview with the Department he said that he would go to a church that was officially registered with the Chinese authorities if the priest at that church was approved by the Pope. He confirmed that this was still his view.

19. The Tribunal put to the applicant for his comment country information which suggests the Vatican and CCP are seeking to resolve their differences and that a number of bishops and priests appointed by the CPCA had been or were actively seeking ratification by the Vatican. The applicant acknowledged he had heard about this development but considers it to be just a provisional agreement and that he is not willing to take the risk and return to China as it remains in question as to whether the agreement will be carried out.

20. The Tribunal noted that country information did indicate the CCP were seeking to ‘sinicise’ religious activity in China, but that the suppression of underground Catholic churches appeared to have become less severe in recent years. In response the applicant said that this country information was based upon information posted by the Chinese government and that he gave it no credibility.

21. In relation to the claim made in association with his protection visa application that he could return to Harbin, or relocate to Fujian, or other regions in China, but that he would face a similar level of persecution in all of these locations, the applicant confirmed this remained his view. He said that Heilongjiang province, where Harbin City is located, is close to the border with Russia and that religious persecution is severe there. He said that he would not expect it to be much different elsewhere in China. He said people like him and his family, who are active Christians, face discrimination from the general population in China. He said that this is because people like him are looked down upon by non-religious Chinese people.

22. The Tribunal provided the applicant time following the hearing to provide further evidence and arguments in support of his protection claims and on 17 February 2020 the Tribunal received a written statement from the applicant, a written submission from his representative and a support letter.

23. The applicant’s post hearing written statement stated:

    I am [name]. My date of birth is [date]. I am [Occupation 1]. I wish to provide this statement to support my review application.

    My name is [name]. I am a Roman Catholic Christian and I am a member of the [Church 2] which is located in [Suburb 1] Sydney. I have been attending this church since I came to Australia from China in December 2015.

    I wish reiterate that my claims of fear for returning To China are genuine. I declared that I had suffered from suppression due to my religious faith in the past in China. And in view of the policy of the Chinese Government, I earnestly believe that I will continuously be persecuted due to my religion if I go back to China.

    I do not know how much of the full picture the country information can reveal for the suffering of the Catholics in China especially if the victims are just individuals who are not connected with the high profiled personnel or events. As an ordinary Catholic, what happened to me were true and I held responsibility of all claims I made.

    During the hearing, I was still nervous and therefore, I was not able to 'answer the questions clearly. Sometimes, I even gave conflicting answers which would inevitably confuse the member.

    I wish to clarify the confusion of my baptism. When the member asked me to clarify about "twice" baptism, I again mistakenly said that "in 1995, I was baptized... and when I was little, the baptism was not recognized". In fact, what I meant to say was that "In 2015, I was baptized after I finished the baptism class. I mistakenly thought I had been also been baptized when I was little. However, on that occasion, it was just a form of ceremony but definitely not formal baptism as I had not attended any baptism class. Therefore, whatever ceremony that occasion was, it was not recognized as baptism and it did not affect my eligibility for receiving baptism in 2015". I apologize for the confusion.

    In relation to how I observe my daily life as a Catholic, although I knew well about the ten
    commandments, I was not able to answer the question instantly, because I was always not a smart and responsive person.

    I wish to confess that I do not know everything about my religion of Catholic but I know that the only way to gain eternal life is through my acceptance of Jesus as my savior Lord and to believe that he has died for us on the Cross for the cleansing of my sins. As I do not know much, I still have a lot to learn and that is the reason why I need to go to church and to associate with other Catholics so that I can continue to grow my spiritual life and to consolidate my faith.

    I may not pass the knowledge test about bible and the religion, but I can still be proud to proclaim that I am a genuine Catholic. A scholar who knows bible throughout may not be a Christian. Similarly, a person is not required to know everything in the bible, even the religion before he is allowed to become Christian. Therefore, I may not remember all the verses in the bible, but I know I will be saved by God because I believe in Him. As I am taught, what I believe is not only a religion but a living God.

    I view of the hardline policy on Catholic and on Christian faith currently in China, I honestly and fearfully believe that my freedom of religion will be seriously diminished if I go back to China.

24. The representative’s post hearing submission stated:

    Thank you for conducting the hearing with our client on the 51h of February.

    After the hearing, our client has secured a new letter from the Chaplain of [Church 2] in [Suburb 1] to testify that he is still an attendee of the church. The letter is handwritten and handed to our client because [Church 2] is now closed until early March due to recent outbreak of Wuhan Coronavirus.

    [The applicant] has prepared a declared statement to clarify some of the issues that were mentioned during the hearing. He informs that he was still nervous during the hearing when answering questions and therefore, he was confused with the dates and some details. [The applicant] also wants to plead that even if he had not displayed his biblical knowledge when answering questions during the interview with the delegate of the Department and during the hearing at the Tribunal, he is still a dedicated Catholic holding a deep faith of God and the religion. He wants to inform you the most important thing a genuine Catholic Christian and God follower needs to have is his belief that salvation is by faith in Christ, not by acts or knowledge of bible.

    In addition, [the applicant] is also concerned about the "Country Information" that were quoted during the hearing. [The applicant] is of the belief that no matter what happens to an insignificant individual or even a small group, it will not draw enough attention and to become "Country Information".

    Our submission

    We submit hat our client's application for protection visa is an application based on what has happened to him. It is an application concerning himself as an individual. He has rightly pointed out that as a small individual, things that happened to him or to his church in his area will not easily draw public or international attention. Also, the "Country Information" cannot cover all the events and persecutions of Christians by the local and central Chinese Governments. As a matter of fact, some of the "country information" are only speculations and may be politically motivated.

    Therefore, on behalf of our client, we sincerely request the Tribunal to use its discretion to make a balanced view of our client's individual and own claims. If there is any unclear or conflicting information in our client's claims, these unclear claims may be caused by lapse of memory or scary experience of the past. Therefore, if the Tribunal cannot prow that these unclear claims are fraudulent, we ask the Tribunal to exercise the discretionary power with the principle of common laws, and to give our client the benefit of doubt.

25. The handwritten support letter from the assistant pastor of [Organisation 1], dated 7 February 2020 has a similar format to previous Church references the applicant has provided. It describes the applicant as a respected member of the [Church 2] community at [Suburb 1], where he attends weekly Chinese Catholic Mass. The letter indicates the pastor has reported December 2015 as the date when the applicant started attending the Church upon the basis of what the applicant had told him.

    Receiving country

26. The applicant claims to be a citizen of China and has provided a copy of his Chinese passport to the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China and that he is outside his country of nationality. The Tribunal finds that China is his receiving country for the purpose of assessing his claims for protection.

    Third country protection

1. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Assessment of claims

   Are the applicant’s claims credible?

2. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[20] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters.

   [20] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at paragraph 196.

3. The Tribunal accepts that the applicant was nervous appearing before the Tribunal. The Tribunal has taken this into account in assessing the credibility of his claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[21] 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.[22]

   The applicant’s claim he was not involved in getting a Chinese passport and was unsure of information used in his application for a Tourist visa which provided him a pathway to Australia

   [21] MIMA v Rajalingam (1999) 93 FCR 220.

   [22] 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.

4. The applicant claimed the Chinese authorities would not allow him to apply for a visitor visa allowing him to come to Australia as a tourist. He provided no explanation for why the Chinese authorities denied him any such permission and appears to have conflated this issue with the refusal, by Australian immigration authorities of previous visa applications made by him and his wife to come to Australia. The Tribunal is not persuaded by this claim.

5. The applicant claims he was unsure of information on the visitor visa application he lodged in November 2015, as it was filled out with the assistance of a migration agent in China. He contends he did not sign the visitor visa application, which in itself raises concern as it is a requirement the information and declarations in that application be true and correct and that the signature of a visa applicant on the visa application is genuine.

6. The applicant conceded he had no difficulty getting a Chinese passport issued to him when he travelled back to Fujian province in July 2015. He said that the migration agent in China arranged for his passport, without any involvement from him and that this was necessary because he had previously been denied a passport by the local authorities where he was living, because of his religious beliefs. The Tribunal is not persuaded by this claim, as DFAT information indicates that whilst document fraud is prevalent in China, the exception tends to be official Chinese passports, which contain anti-forgery properties and require the applicant to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. In my view the applicant has not put forward credible evidence in support of his claim, such that I would prefer it over the available DFAT information.

7. DFAT information indicates a passport can be refused to known religious dissidents and people deemed to undermine national security or cause major losses to the interests of the State. In response to the Tribunal putting to the applicant that the ease with which he secured a Chinese passport and departed China would appear to indicate he was not subject to the adverse attention of the PSB or other Chinese authorities. He claimed that there is not direct communication between the PSB and the CPCA. He claimed this is because the CPCA is not an official government authority, such as is the PSB and that this explains why the PSB did not inhibit his departure from China. The Tribunal noted this claim was not consistent with other claims made by the applicant, where he has referred to the PSB and CPCA co-operating in their harassment of him and other Catholics in China. The Tribunal is not persuaded the CPCA does not have links with the CCP and other State authorities, and with respect to this notes that country information refers to State authorities requesting churches register with the CPCA as part of the increased government oversight of religious affairs in recent years[23].

   [23]'Underground Catholic Churches Closed in Fuzhou Archdiocese', Bitter Winter, 17 December 2018,

8. In support of his claim as to why he was issued a passport and departed from China without difficulty, the applicant claimed that departure checks were significantly less rigorous when he left China in November 2015 than they are at the present time therefore the recent DFAT country information pertaining to acquiring a passport and departure screening procedures are not applicable to him. The Tribunal acknowledges technological advances result in increasingly sophisticated screening at airports and other departure points and that this may well be the case in China as it is in other countries. The Tribunal has reviewed more contemporaneous information in the form of a 2016 DFAT Thematic Report on Fujian province,[24] which indicates that in light of recent technological developments at that time, DFAT considered it highly likely that there was a centralised list of high-profile individuals who are prevented from travelling internationally, and that this list is available to relevant security agencies. DFAT, in March 2015, also noted China’s major airports had a centralised system with name matching alert capabilities and that security monitoring capabilities at major airports were comprehensive[25].

   [24] DFAT Thematic Report on Fujian Province, People’s Republic of China, 16 December 2016.

   [25]   DFAT Country Report, People’s Republic of China, 3 March 2015

9. The applicant has not claimed to be a church leader or a parishioner who has been politically active, or otherwise acting in a manner that would put him into a ‘high profile individual’ category.  Indeed in the post hearing submissions received from him and his representative, the applicant is variously described as an ordinary catholic, an insignificant individual or part of a small group.  The Tribunal acknowledges these claims but does not accept the submission that as such country information, as put to the applicant during the hearing, is either not applicable to him because he would not have drawn enough attention, or to be compromised because it is politically influenced. The Tribunal does not accept DFAT country information is compromised, or no applicable in the way descried by the applicant and in particular, considers DFAT advice that whereas 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.

10. As such, as an ‘ordinary Catholic’ the Tribunal is satisfied  the ease with which the applicant  got a passport and departed from China in 2015 is indicative that he was not a person who was under the adverse attention of the Chinese authorities. The Tribunal is not satisfied the screening procedures, at the time of the applicant’s departure from China in November 2015 would have lacked the degree of sophistication to prevent his departure if he was a person who had drawn the adverse attention of the PSB, CPCA or other relevant government authority.

11. The applicant has also, at hearing, claimed the PSB and CPCA have jointly questioned his wife and other relatives in China on an ongoing basis since 2015, as they do not believe he has left China and are seeking information about him. I do not accept this claim, or the suggestion that the PSB and CPCA used this line of questioning to apply pressure upon his parents. This is because I do not consider it plausible that the PSB would not have access to records of the applicant’s departure from China and because I am not satisfied the applicant has demonstrated why the PSB and CPCA would in any event have an ongoing interest in him, as there are no claims before the Tribunal that the applicant was politically active, in a leadership role in any Catholic community he was part of in Fujian or Heilongjiang province, or that he has actively proselytised his religious beliefs in either China or Australia.

    Claims that the applicant attended church and is a follower of the Roman Catholic religion

12. The Tribunal is prepared to accept that the applicant has attended [Church 2] in [Suburb 1], NSW and that he is a member of that church community. In making this finding, the Tribunal has however placed only limited weight on the support letters provided by the current assistant pastor and Father [B] from [Church 2] and [Mr C] from [Organisation 1]. This is because the applicant conceded the support letters, which all have very similar brief and generic contents, were sourced for him and a number of other people by their migration agent at the same time. He indicated this is a regular request put to church officials at [Church 2], who sign the documents upon request. The applicant indicated he had not actually spoken to Father [B], as they do not share a common language. The Tribunal has however placed weight on photographs provided by the applicant, showing his attendance at Church activities and also accepts his evidence at hearing about recent sermons and other aspects of services conducted at [Church 2]  in [Suburb 1].

13. The Tribunal notes that the applicant reports attending services at [Church 2] since shortly after his arrival in Australia in December 2015. The Tribunal has not made a finding as to when the applicant’s involvement with [Church 2] began, due to the cumulative concerns it has about the accuracy and reliability of the applicant’s claims. In forming the view I was not satisfied that I could make a clear finding with regard to this factor. I noted a generic aspect of the aforementioned support letters, which all state ‘The time of first coming to [Church 2] [Suburb 1] was given to me by the same [name]. Given my concerns as to the reliability of the applicant’s claims and the lack of overall weight I have given to these three support letters, I am not persuaded by the letters’ support for the proposition the applicant started going to [Church 2] in December 2015. There is a fourth support letter, dated 2 October 2016, from [Mr A] from [Organisation 1], which whilst not following the precise structure of the other three support letters, has similar content in that it is very brief, lacking in detail that would indicate personal knowledge of the applicant, but testifies the applicant is a member of [Organisation 1] and has attended their church since December 2015. The Tribunal is not convinced it should accord significantly more weight to this document than it has to the other support letters.

14. Whilst I have not made a finding as to when the applicant began attending [Church 2] and joined [Organisation 1], I do not view this as a particularly significant issue. I am satisfied the applicant was able to discuss his faith in a plausible way during the hearing. Whilst the applicant may not, as he and his representative have pointed out in their post hearing submissions, be a person who could easily pass ‘the knowledge test about the bible and the religion’ whatever such a thing may be, this is not a test that the Tribunal has applied in a simplistic manner. From the applicant’s discussion of his faith at hearing, I am satisfied he displayed a basic understanding of some of the core tenets of Catholic faith and that he provided a simple but not inappropriate description for how he applies his faith in his everyday life.

    The applicant’s claims about his religious life in Fujian province

15. The applicant’s evidence regarding his family of origin’s Catholicism is not entirely consistent. At hearing he claimed that both of his parents, his [sister], paternal aunt and uncle are all practising Catholics. Elsewhere, in his statement of claims and as discussed in the delegate’s decision record, during his September 2016 interview, the applicant has claimed that his parents are divorced and that whilst his father is ‘nominally Catholic’, he is ‘no longer interested’ and ‘has no religion’. This is an example of an inconsistency which viewed individually would have some significance, but when viewed cumulatively with other inconsistencies and discrepancies in the applicant’s evidence raises an overall concern as to the accuracy and reliability of his protection claims.

16. The applicant claims he was both witness to and subjected to assault and persecution during his childhood in Fujian by both the PSB and CPCA. He claims this was because he was part of the Roman Catholic community in his home region. He claims that he was arrested and detained for six days in or around 1995 and required a month of inpatient hospital treatment following this incident. He claims that he subsequently escaped from a further arrest in August 1996 and that his parents then sent him to Heilongjiang province. He said that this in turn resulted in his mother’s arrest and detention for [days], as a result of which he claimed his mother suffered from permanent physical impairment.

17. Whilst I accept the applicant was born into a Catholic family and may have had involvement with small, informal gatherings of fellow believers when priests were not present, I am not persuaded by the applicant’s claims as to the specific persecution he and his mother suffered. This is because of the extent of inconsistencies and discrepancies in the applicant’s evidence. Whilst his account of harassment and persecution from the PSB and CPCA are consistent with country information as it pertains to the 21^st century context in China, it does not reflect the reported circumstances in a region such as Fujian in earlier times. Government authorities are reported to have historically permitted friends and family to hold small, informal prayer meetings without undue interference. In my view, the evidence regarding the mass baptism event he participated in within Fujian in 2015 is an example of this sort of unhindered Catholic religious activity.

18. In contrast to the applicant’s post hearing submissions and those of his representative, which contend country information  is not applicable to ordinary Catholics, or with respect to an insignificant individual or small group,  DFAT country information reports that Fujian authorities continue to tolerate unregistered churches who meet discreetly in small congregations and that provided a person is not perceived to be a church leader, or acting in a manner perceived to challenge the interests or authority of the CCP, they can practise their religion within state-sanctioned boundaries.  I am not persuaded this DFAT information should  be not be given significant weight, as I do not accept it fails to report on the circumstances of Catholics, whether individual or members of small groups, in China who are ordinary parishioners and not priests, church leaders or otherwise high profile persons. 

    The applicant’s claims about his religious life in Heilongjiang province

19. During his September 2016 interview, the applicant claimed that he attended [Church 1] which was the main venue of Catholicism in Heilongjiang province. When asked during the interview about whether this was a registered or unregistered church, the applicant was unaware of what was meant by that distinction. He described it as a big church which was designated as a Roman Catholic Church, but was run by priests approved by the CPCA.

20. There is inconsistency in the applicant’s evidence as to the length of time he attended [Church 1]. At hearing he gave evidence he started attending that church in 1996 and continued to attend up until he came to Australia in 2015. This is in contrast to information he gave, as discussed by the delegate, when he was interviewed in September 2016, at which time he was asked when he started going to [Church 1] and he said it was two or three years previously, in either 2013 or 2014. The extent of discrepancy in the evidence given by the applicant with regard to this issue is of concern and I am not persuaded it could be explained through the applicant’s nervousness in the hearing before the Tribunal, or at the time of the 2016 interview. The evidence at hearing was that the applicant started going to [Church 1] from around the time he moved to Heilongjiang province, whereas his responses in September 2016 suggest he only attended this church for a relatively brief period before he came to Australia. There is therefore a 16 or 17-year discrepancy in the applicant’s claims, which in my view adds weight to concern about the overall accuracy and reliability of the applicant’s protection claims.

21. There is further concern about another aspect of the applicant’s evidence regarding [Church 1]. During discussion at hearing about why he had not baptised his son, the applicant claimed the church was “eradicated” by the Chinese government in 2013. This is clearly inconsistent with evidence the applicant has given elsewhere. When this inconsistency was pointed out to him during the hearing, the applicant varied this claim and said the government closed the church in 2017. At a different point in the hearing he said the church closed in 2017, because attendance dropped off after the priests were appointed by the government, rather than the Papal authorities.

22. The extent of variance in the applicant’s evidence is of concern, as is the related variance in his evidence about his wife’s religious activity after the claimed closure of [Church 1]. At hearing, the applicant initially said his wife started attending a church in the [District 1] of Harbin City, after the closure of [Church 1]. He explained that she did not just go to “random” churches, out of concern she would not know whether the church was approved by the CPCA or by the Roman Catholic Church. He subsequently varied this claim and suggested his wife only went to church on days of particular religious significance and otherwise gathered with fellow believers in small gatherings. Whilst this description of his wife’s involvement in Catholic-related activity is not implausible, the applicant’s retraction of his earlier claim she attended a church in the [District 1] in my view is. The applicant varied his evidence at hearing and claimed that what he had meant to say is she went to small gatherings, in [District 1], but not that she went to a church in that district. I consider this integer of his claim to be unconvincing and to be an instance where the applicant was sculpting his oral evidence in an effort to respond to concerns put to him by the Tribunal during the hearing. This claim is also unconvincing, given the applicant’s claim he and his wife attended [Church 1], which he has claimed elsewhere had priests working there who were approved by the CPCA.

23. In the written statement of claims submitted with the protection visa application, the applicant describes an incident in which he was attending Mass in March 2015, praying for priests who were injured in a motor vehicle accident a month earlier in February 2015. At a number of points during the hearing he claimed the aforementioned incident occurred in 2013, some two years earlier than the claim he made in a statement prepared in January 2016. The inconsistency in his evidence regarding these dates was not explained when put to the applicant for his comment during the hearing.  In his post hearing submissions the applicant claimed his nervousness during the hearing explains why he did not at times answer questions clearly and even sometimes gave conflicting answers which would inevitably confuse the Tribunal.  I acknowledge an applicant may feel nervous during a hearing before the Tribunal and that this may influence their oral evidence.  In itself, isolated instances of inconsistency are not in my significant.  However, in this instance the applicant referred to the aforementioned incident occurring in 2013 on a number of occasions during the hearing.  It is my view that cumulative inconsistencies such as this, especially in light of other concern about his claims in relation to this incident, as discussed in the following paragraph do in my view add to the overall concern regarding the inaccuracy and unreliability of the applicant’s evidence in support of his protection claims.

1. In his written statement of claims he stated that two priests officiating at that church service were taken away by the police and that the people attending the church were questioned and given a serious warning. At hearing, the applicant’s initial evidence regarding this claimed incident in my view significantly enhanced his personal involvement in the incident. He claimed that it was an example of what he described as the multiple occasions in which he was arrested in China because of his religious beliefs. When the Tribunal sought more detail at hearing about this reported incident, the applicant conceded he was not arrested, but as with other churchgoers who were present at the time was detained for a period and questioned, after the two priests were removed.

   Baptism-related issues

2. The delegate from the Department took a view that the applicant’s claim to have been twice baptised was indicative of the overall unreliability of his protection claim. Whilst I do have significant concerns with some aspects of the applicant’s protection claims, I do not share the view that it is improbable that the Catholic Church would baptise a person as an adult if they believed he had already been baptised as a child. I am satisfied that the applicant’s initial claim with regard to this issue is consistent with available country information, which reports that baptism is viewed as important in the broader Catholic community in China, as without it occurring, a Catholic cannot go to heaven. Country information indicates that in areas where there may be a shortage of priests, parents or grandparents are known to conduct a provisional baptism, with a more formal baptism involving a priest, taking place at a later time. In response to questioning about this issue during the hearing, the applicant has provided a further explanation that what occurred during his childhood was not a formal baptism. This is consistent with aforementioned country information.

3. The applicant has provided a Chinese language baptism certificate from the Catholic Archdiocese of Fuzho and English translation and a photograph of what he claims is his 2015 baptism ceremony. The photograph appears to show the applicant undergoing baptism. As discussed in the delegate’s decision record, the applicant claims he returned to Fujian in 2015 to visit his parents, attend a two-month pre-baptism class and participate in a large formal baptism ceremony. Country information indicates that there are no standardised baptismal certificates issued within underground Catholic churches. The provision of what appears to be a standardised baptismal certificate by the applicant, in my view does not support the contention the applicant has, as an adult, avoided registered Catholic churches in China.

4. Of further concern is that at hearing the applicant, on two separate occasions, referred to his second and more official baptism occurring in 1995. This is in contrast to claims made elsewhere about this event and the details of the baptism certificate he has provided in support of his claims. In post hearing submissions the applicant suggested he twice made a mistake about the date due to feeling nervous during the hearing. I acknowledge a hearing before the Tribunal can induce a level of stress and nervousness for an applicant.  However I do have concern about the cumulative extent of inconsistencies in the applicant’s evidence.

5. The available country information emphasises the conservative nature of Chinese Catholicism, and the central place doctrinal sacraments such as baptism and communion have in the broader Chinese Catholic community, both registered and unregistered. In light of this, the evidence that the explanation provided by the applicant for not baptising his son is not convincing. The delegate notes that when asked about this issue, the applicant said his son was not baptised, because it was necessary for his son to attend a pre-baptism class and that this has not occurred. The evidence, as discussed by the delegate, indicates that when asked why he did not take his son to attend the pre-baptism classes in 2015, so that he could be baptised, the applicant indicated that the applicant and his wife prioritised his son attending school over the opportunity for him to be baptised.

6. When asked about this issue at hearing, the applicant referred to the pre-baptism class needing to be three months long. Whilst this is a relatively minor inconsistency with claims the applicant has previously made about the length of the pre-baptism course he attended in 2015, when viewed in conjunction with the more significant inconsistency about the level of his son’s church attendance, the reliability of the applicant’s claims are called into question. In response to the Tribunal expressing concern that the apparent lack of priority given to having their son, who is now [age] years of age, baptised, gave rise to concern as to the commitment of the applicant to his Catholic faith, the applicant conceded that his son was in the care of the [grandmother] and had not actually been raised by the applicant and his wife.

7. Given the applicant claims that his wife was raised a Catholic, it is not apparent to me why the [grandmother] would have not had a similar view of the importance of baptism as that held in the broader Chinese Catholic community. However, this concession by the applicant is also of concern as it is inconsistent with claims he has made elsewhere that his son had accompanied him and his wife to church regularly throughout his life and that his son was in September 2016 continuing to attend [Church 1] with the applicant’s wife. In combination, the evidence does not in my view support a contention the applicant’s son has attended a Catholic church regularly, as claimed by the applicant at hearing and that the lack of priority given to his baptism and by inference, his ability to enter heaven, raises concern as to the commitment to the Catholic faith held by the applicant prior to his coming to Australia in 2015.

   Issues related to hukou registration

8. The applicant reports that he has had repeated lack of success in attempts to transfer his hukou registration from his rural home region in Fujian to Harbin. At hearing he claimed the difficulties getting the same hukou registration as his wife and son are emblematic of the persecution he experienced in China because of his religious beliefs. I am not satisfied that he has substantiated this claim. Country information indicates that historically only a minority of Chinese citizens have urban hukou registration and that people that move away from rural areas are not able to access key services if they relocate to an urban area. This would appear to reflect the described circumstances of the applicant, where he reports his wife and son have remained on hukou registration linked to her family of origin in Harbin. The applicant reports that his son has had no difficulty accessing education services and he has reported no difficulties in relation to his wife and son accessing other key services in Harbin, such as health services. The applicant has not demonstrated any connection between his Roman Catholic beliefs and the lack of success he had, prior to coming to Australia in 2015, in having his hukou registration transferred to Harbin and I am not persuaded the aforementioned difficulty was due to his religious beliefs, rather than other, more general government policy and administrative practices. At hearing the applicant also claimed he has sought, without success, to have his son and wife placed on his hukou registration. This was not consistent with his discussion elsewhere of hukou-related issues and is a further instance of the unreliability of the applicant’s evidence.

9. The applicant claimed his difficulties getting his hukou transferred to Harbin resulted in him not living in one place for very long during the period he lived there between 1996 and 2015. The Tribunal notes that the applicant detailed a number of past residential addresses within Heilongjiang province on his protection visa application, mostly within Harbin City. I am however not satisfied the evidence demonstrates whether this related to the applicant’s claimed hukou registration, or to another factor. The applicant did not advance any explanation in support of this claim and I am not persuaded to place much weight upon it.

10. Country information indicates that since the applicant came to Australia in 2015 the Chinese authorities have relaxed hukou residency requirements in small to medium-sized urban areas. In my view this indicates the applicant, if he were to return to China, may not experience the level of difficulty in relation to his hukou registration that he has experienced in the past.

    Issues relating to relocation options in China

11. At hearing the applicant claims he could, if he returned to China go back to Heilongjiang, or Fujian, or indeed other regions of China. He said that if he did so he would face an equal level of risk and persecution. He claimed that there is no distinction throughout all regions in China between how Roman Catholics are harassed and persecuted by government authorities. The Tribunal put to the applicant DFAT country information, which indicated this was not the case and that in a province such as Fujian people have traditionally been able to practise their religious beliefs without undue interference, provided they are not perceived to be politically active or in church leadership positions. The applicant dismissed the legitimacy of this and other country information, claiming it is posted by the CCP and not representative of the experience of individual people in China. I did not find this claim by the applicant convincing and it did not persuade me to not place appropriate weight on relevant country information.

    Findings

12. For all the reasons set out above, the Tribunal has formed the view that significant elements of the applicant’s claims are not credible.

13. The Tribunal accepts the applicant was raised as a Catholic in Fujian province. The Tribunal does not dismiss the possibility that the applicant was baptised informally during his early childhood, nor that he subsequently arranged a further formal baptism as an adult. The Tribunal does not dismiss the possibility that the applicant organised his baptism in Fujian in August 2015, around two months before he lodged a tourist visa application allowing him to travel to Australia.

14. The Tribunal accepts the applicant moved to Heilongjiang province, where he had a relative, in or around 1996 and that at some stage between then and when he came to Australia in November 2015 he attended [Church 1] in Harbin.

15. The Tribunal accepts the applicant met and married a woman who was raised as a Catholic in Heilongjiang province.

100.   The Tribunal does not dismiss the possibility that the applicant and/or his wife participated in small gatherings of Catholics in China for the purpose of religious practices, in contexts where priests were not present.

101.   The Tribunal accepts the applicant was aware that a CPCA-approved bishop was appointed to [Church 1] and a number of priests working from that church were also appointed by the CPCA. The Tribunal accepts the applicant’s claim he attended the church during the period the aforementioned bishop and priests were at [Church 1].

102.   The Tribunal accepts the applicant would not object to attending a registered Catholic church, providing the priest working there had the approval of the Pope.

103.   The Tribunal does not dismiss the possibility that the applicant has witnessed the harassment, physical assault and detention of fellow church members or priests in China. However, on the evidence before it, the Tribunal does not accept that the applicant, his wife, his parents or other relatives are or were of adverse interest to the Chinese authorities because of their religious beliefs and activities. It follows that the Tribunal does not accept that the applicant or his relatives were ever detained. Specifically, the Tribunal is not satisfied that:

·the applicant was arrested, detained and physically beaten to the extent that a month of inpatient hospital treatment was required in 1995;

·the applicant escaped, after a further arrest by the PSB and CPCA in August 1996, by jumping from a motor vehicle;

• the mother of the applicant was, subsequent to his claimed escape from custody in 1996, detained for over a month, in which she incurred injuries from maltreatment that left her with permanent physical functional impairments;

·the applicant was detained and questioned, in either 2013 or 2015, as a consequence of attending a church service where prayers were being offered for priests injured in a motor vehicle accident;

·the PSB and CPCA have on a regular basis questioned the applicant’s wife in Harbin, Heilongjiang province, or his relatives in Fuqing, Fujian province due to their theory that he is in hiding somewhere in China.

104.   On the evidence before it, the Tribunal is not satisfied that difficulties experienced by the applicant in relation to the hukou registration of him, his wife and son were a consequence of his religious beliefs. The Tribunal is not satisfied that changes in the applicant’s residential location in Heilongjiang province were due to his religious beliefs creating difficulty in his hukou registration.

105.   The Tribunal accepts the applicant has attended [Church 2] in [Suburb 1], NSW and that he identifies as a Catholic Christian.

106.   The Tribunal finds the applicant is an ordinary parishioner at [Church 2]. There is no suggestion that he is a church leader or a leader within [Organisation 1]. There is no suggestion that the applicant has engaged in any political activity in Australia. The Tribunal finds that the applicant’s religious practice consists of attending church on a regular basis. The Tribunal does not accept the applicant has engaged in public proselytising in Australia or China, such as would draw adverse attention from the CPCA, PSB or other authorities in China.

107.   The evidence suggests the applicant has knowingly attended registered Catholic churches in China and the Tribunal is not persuaded as to why the applicant could not continue this practice if he were to return to China, whether this was to his region of birth, Fujian province, the region where he has spent most of his adult life, Heilongjiang province, or other regions of China.

108.   The Tribunal finds that the applicant’s claims that he would not have the freedom to practise his religious beliefs in China are not established by the available evidence and that they have been contrived in the hope of obtaining a favourable immigration outcome.

Conclusion – the applicant is not a refugee

109.   The Tribunal considers that if the applicant returned to China and wished to continue his Catholic Christian practice he could join a registered church in Heilongjiang province and continue to practise his Christian faith, much as the evidence would suggest his wife has since the applicant came to Australia in 2015. The Tribunal considers that should the applicant’s religious practice include gathering with fellow believers in informal gatherings to share their beliefs, this would not have reason to draw undue adverse attention of the Chinese authorities, as there is no suggestion the applicant is a church leader or has involvement with overt political activities.

110.   The Tribunal is not satisfied that the applicant has a clear preference to attend an unregistered church as opposed to a registered church. In my view, in contrast to the applicant’s claims, the evidence suggests he has practised his religion in a manner not at odds with the policies and preferences of CPCA or other Chinese authorities. Having regard to the country information and what the Tribunal has accepted of the applicant’s religious profile and practices, the Tribunal finds that there is no real chance that he will face serious harm or significant harm if he returns to China and practises his faith in a manner consistent with his current practice in Australia and his past practice in China.

111.   The applicant has not claimed, and the Tribunal does not accept, that there is a real chance that he will face harm as a result of his involvement with [Church 2] in [Suburb 1]. The evidence indicates that [Church 2] is a mainstream Catholic church in Sydney which has a large Chinese speaking congregation. There is no evidence that this church has been designated as an evil cult by the Chinese authorities. There is no evidence or country information which indicates the applicant would face serious or significant harm on return to China for reasons of his attendance at a Catholic church in Australia.

112.   Country information available to the Tribunal does not indicate that the Chinese authorities target people simply for having sought asylum abroad.[26] Accordingly, the Tribunal does not accept that there is a real chance that, even when considered cumulatively with what the Tribunal has accepted of the applicant’s religious practice and profile, his status as a failed asylum seeker would expose him to a real chance of serious harm or significant harm.

[26] 'DFAT Thematic report Fujian province', DFAT, 16 December 2016: DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 72, para [5.44]

113.   The Tribunal has reviewed the articles provided by the applicant in support of his visa application. Notwithstanding the applicant’s concerns, the information in the articles from the United States Commission on International Religious Freedom, Annual Report 2015, the 2013 New York Times article, 2005 New American article by Steve Byas and the 2015 Washington Capitol Visitor Center article contain information that is not inconsistent with some of the more recent independent country information discussed with him at hearing.

114.   The Tribunal accepts that Christianity and Catholicism have a long history in China and that there has been a recent shift in the regulation of religion in China in an attempt to ‘sinicise’ religion to ensure that it does not undermine the authority of the CCP. The Tribunal accepts that this is further to repressive actions against prominent individuals of several different faiths, church building demolitions and the ‘torching and removal of crosses’, which had occurred in parts of China prior to Xi Jingping’s more recent actions. The Tribunal accepts that new national regulations came into effect in China in February 2018 which require churches to register with the government and worshippers to attend registered churches with penalties for attending illegal religious gatherings.[27]

[27] DFAT Country Information Report, People’s Republic of China, 3 October 2019; and Department of Home Affairs, Unregistered Christians, People’s Republic of China, COISS, September 2018.

115.   The Tribunal acknowledges that country information suggests that there has been a deterioration in the state of some religious freedoms in China.[28] In 2018 new religious regulations came into force that seek to monitor and restrict religious expression and the Tribunal accepts that there is independent country information that supports the applicant’s claims that Christians attending unregistered or house churches are sometimes targeted by authorities in China. However, notably, there is also an indication that ongoing attempts by the CCP and the Vatican to reconcile differences have met with some success and that increasing numbers of priests are seeking ratification by both the Vatican and Chinese authorities.

[28] 'International Religious Freedom Report for 2017 - China (Includes Tibet, Hong Kong and Macau)', US Department of State, 29 May 2018, Section II, p.8, OGD95BE927626; 'China Aid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China January-December 2018', China Aid Association, 7 March 2019, pp.57-60, 20190307125741.

116.   However, as noted above, there are significant numbers of Catholics in China attending both registered and unregistered churches. Furthermore, while those who practise their faith in unregistered institutions are more vulnerable to adverse attention than those who practise in registered churches, the country information indicates that it is church leaders, clergy members and persons engaged in public expressions of faith or activities which could be regarded as being politically sensitive who are more vulnerable to adverse treatment than ordinary parishioners.[29] In this context, persons in leadership roles of both registered and unregistered churches are subject to greater scrutiny than are ordinary worshippers.[30]

[29] DFAT Country Information Report, People’s Republic of China, 21 December 2017, p.18

[30] DFAT Country Information Report, People’s Republic of China, 21 December 2017, p.18

117.   The Tribunal finds that the applicant has no religious profile other than that of an ordinary church parishioner who attends church services and interacts with his church community. He has not engaged in preaching or proselytising in Australia or China. There is no suggestion that he has been or would be the leader of either a registered or unregistered church or that he is engaged in religious protests or any type of political activism.

118.   The Tribunal is not satisfied that, having regard to its findings about the applicant’s religious practice and profile and the country information set out above, even if it were to be accepted that the applicant would choose to attend a small unregistered Catholic church and/or participate in small gatherings with fellow Catholics where priests were not present in preference to a registered church that there is a real chance he will face serious harm or significant harm from the Chinese authorities.

119.   The Tribunal has considered the applicant’s claims singularly and cumulatively. Having regard to what the Tribunal has accepted of his claimed profile, the Tribunal is not satisfied that he has a well-founded fear of persecution for reasons of his religion or for any other reason. The Tribunal finds that there is no real chance of the applicant being arrested, detained, harassed or otherwise harmed in connection with his religious activities and beliefs and/or those of his family members. The Tribunal finds that there is no real chance that he will suffer serious harm on account of his Catholic faith. For the reasons given above, the Tribunal finds that there is no real chance that he will face harm of any type, including serious harm, for reasons relating to his religious activity in Australia and/or because he will be returning to China as a failed asylum seeker. The applicant has not claimed to fear political persecution and, having regard to its findings of fact, the Tribunal finds there is no real chance he will face serious harm because of his actual or imputed political opinion. The applicant’s claimed fear of persecution is not well-founded as required by s.5J of the Act. The applicant is not a refugee within the meaning of s.5H.

Conclusion – the applicant is not owed complementary protection

120. Having concluded that the applicant is not a refugee, the Tribunal has considered whether he meets the complementary protection criteria in s.36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion. ‘Significant harm’ is exhaustively defined in s.36(2A) and s.5(1) of the Act.

121.   The Tribunal accepts that the applicant is a Christian who attends a mainstream Catholic church on a regular basis in Australia and that he would want to attend a Catholic church in China. For the reasons above, the Tribunal does not accept that the applicant or his relatives are or were members of an unregistered church group in China. The Tribunal does not accept that since the applicant travelled to Australia his wife or any other relatives have been detained, arrested, monitored and placed on a blacklist because of their involvement in an unregistered Catholic church community. The Tribunal does not accept that the applicant’s religious practices, as described by him at hearing and in documents provided in support of his claims indicate that he would seek to evangelise or express political opinions not approved by the CCP or CPCA if he returns to China.

122.   Having regard to its findings of fact, the Tribunal finds the applicant does not face a real risk of significant harm for reasons relating to his religious faith and practice or for any other reason, including his status as a failed asylum seeker or his political opinion. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will face significant harm if he attends a registered church in China. Furthermore, even if he were to choose to attend an unregistered church, having regard to what the Tribunal has accepted about his religious profile and activities in Australia and China and the country information set out above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that he will face significant harm on this basis.

123.   In summary, the Tribunal finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. There is nothing before the Tribunal to suggest that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied the applicant will be subjected to significant harm for any reason, as a necessary and foreseeable consequence of his being removed from Australia to China.

124. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

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

DECISION

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

David Barker
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.

…

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.

…

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.

…

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.

…

Department of State, 21 June 2019, Section II, 20190624153309; United States Commission on International Religious Freedom Annual Report 2019’, United States Commission
on International Religious Freedom (USCIRF), 29 April 2019, pp.35-39, 20190508143726;
'China Aid 2018 Annual Report: Chinese Government Persecution of Churches and Christians in Mainland China

January-December 2018', China Aid Association, 7 March 2019, pp.28-37, p.45, 69, 20190307125741

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