1621713 (Refugee)

1621713 (Refugee) [2020] AATA 4975 (21 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1621713

COUNTRY OF REFERENCE: China
MEMBER:David McCulloch
DATE:21 October 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 October 2020 at 9:49am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Local Church – family arrests – applicant organised church training sessions – banned cult groups list – fellow Local Church members arrested – involvement in Local Church in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155 at 169-70
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the People’s Republic of China, applied for the visa on 8 June 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 9 October 2020. The Tribunal was assisted by the use of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, 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) of the Act. 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).
Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Information Report – People’s Republic of China, 3 October 2019, a copy of which was provided to the applicant at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant arrived in Australia [in] April 2016 as the holder of [a temporary] visa. The applicant applied for the protection visa on 8 June 2016.
The following information is apparent from the application for protection forms. The applicant was born on [date] in Fuqing, Fujian Province, China. The applicant is a Christian (Local Church) of Han ethnicity, who speaks, reads, and writes Mandarin. The applicant divorced [in] May 2013 in Fuqing, and does not list when she married. The applicant’s father, mother, [and specified family members] reside in China, and the applicant is in contact with them by phone or WeChat. The applicant attended primary and secondary school from [year] before graduating from [a named] High School, Fuqing City in [a specified year]. The applicant studied [subject 1 and another subject] at [University 1 in Fujian] from [specified year] until June 2004. The applicant worked as a self-employed salesperson in [specified products] from January 2009 until May 2013 in Fuzhou City. The applicant then worked in sales for [Employer 1], Fuqing from May 2013 until February 2016.
The applicant lived in [her home] Village [in Town 1 in] Fuqing City from birth until [specified year]. The applicant then lived in [Village 1] [in Town 1] from [specified year] until [year]. The applicant lived at the [named] Campus of [University 1], [Fujian] from [then] until June 2004. The applicant returned to [Village 1] from June 2004 until January 2005. The applicant then lived in Fuzhou City, Fujian from January 2005 until May 2013. The applicant returned to [Village 1] from May 2013 until February 2015. The applicant then lived in Xiamen City, Fujian from February 2016 until April 2016.
The applicant states that she has been convicted of a crime and that there are criminal charges or an investigation pending against her. The applicant does not provide details and says to refer to her statement.
The applicant provided a written statement setting out her claims for protection as follows (not corrected for spelling or grammar):
I am a citizen of China (PRC). I arrived in Australia [in] April 2016. I am a devout Christian of the Local Church (a.k.a. ‘Shouters’). Owing to my active role played in the Local Church in China, I came to attention of the Public Security Bureau (PSB). In order to escape from persecution by the PRC authorities, I had to leave my home country and apply for a Protection visa in Australia.
On [date], I was born in [her home] Village [in Town 1 in] Fuqing City, Fujian Province. Before I went to the university, I lived in Fuqing, where I successfully completed my primary school, junior high school and senior high school. I graduated from [another named] High School in [a specified year], but I was not satisfied with my performance at the national university entrance examination during that year. I then had to study at [the first named] High School for one year. Eventually, I was successfully enrolled in [University 1] in [year].
From [that year] to June 2004, I studied in [a named] Campus of [University 1]. The campus was located at [a named district in] Fujian Province, where was over [distance] away from my hometown in Fuqing. During the 3-year period, I mainly lived at the university.
After I graduated from the university in June 2004, I returned to my hometown in Fuqing, and stayed at home for about a half year. During that period, I got to know [Mr A]. We felt in love with each other.
In January 2005, I got married with [Mr A] according to local customs in our hometown in Fuqing. I then moved to Fuzhou, living in [District 1] together with [Mr A]. On [date], our son [named] was born. [Mr A’s] uncle ran a factory, called ‘[name]’ in [named] District, Zhanjiang City, Guangdong Province, for many years. In January 2006, [Mr A] went to Zhanjiang, and worked at his uncle's factory. I remained in Fuzhou, looking after our son. After that, [Mr A] came to Fuzhou for holiday each year, and I also went to Zhanjiang with our son sometimes to visit him.
From 2008, I started looking for a job, as my son was [age] years old and I could put him into a childcare centre. When I studied at the university, [subject 1] was one of my major subjects. Therefore, I became a self-employed salesperson for selling [related] products from January 2009.
Around October 2009, I got to contact with [Relative A], who was a distant relative of my family, in order to push sales of [specified] products. [Relative A] ran a small [product business] in a mountain village called ‘[village name]’ in [named] Town, [District 1], Fuzhou City. There was more than 50km away from my residing place in Fuzhou, and thus I had never met [Relative A] before that. I later on learned that [Relative A] was a devout Christian of the Local Church, and that she always brimmed with joy and confidence in her life though she suffered from a lot of hardships due to her religious beliefs.
In January 2010, I began to attend secret meetings of the Local Church, because I was moved by [Relative A] and made my mind to follow Lord Jesus. For my convenience, [Relative A] introduced me to know [Brother A], a Christian of the Local Church, who was a responsible brother of a gathering group in the area where I resided in [District 1]. [Brother A] organised the gathering group to have meetings regularly at homes of church brothers or sisters. Sometimes, we also attended meetings or trainings at [Relative A’s] [product business]. In May 2010, I was baptised at [Relative A’s] [product business]. Since then, I have become a genuine Christian of the Local Church.
During following 3 years, I played active roles in the Local Church in [District 1]. I took the chances of selling [specified] products to evangelize to the people, but I had to care about my safety and carefully select the people that I trusted. Furthermore, I evangelised to my friends, who used to study together with me in the university. One of friends was [Friend A]. She was my classmate at the university and a teacher at [named] Campus of [University 1] later on. [Friend A] converted to the Christianity in the end. In 2012, I assisted [Friend A] to establish a secret gathering group of the Local Church in Nanping.
In May 2013, my marriage relationship with [Mr A] was thoroughly ended. Before that, I tried my best to save my marriage, but it was unfortunately unsuccessful eventually. Both [Mr A] and I formally divorced [in] May 2013. The property, where I resided in Fuzhou, was actually belonged to [Mr A], and I had to move out after our divorce. I then decided to go back to my hometown in Fuqing.
After I returned to my hometown in Fuqing, I quickly found a job at Fuqing Branch of [Employer 1]. Meanwhile, I got contacts with the Local Church in my hometown, and continually played active roles in the church.
From 2014 to 2016, I, together with [Relative A] and [Brother A], as well as [Friend A] organised special meetings or trainings for church brothers and sisters from Fuqing, [District 1] and Nanping. These meetings or trainings were held at my home in Fuqing, or at [Relative A’s] [product business] in [District 1], or [Friend A’s] home in Nanping.
[In] February 2016, we organised 5-day training in Nanping during winter school holiday. Totally [number] students, who were from Fuqing, Fuzhou as well as Nanping, participated in the training. They were all new believers. Unexpectedly, [Student A], a student who had attended the training, was arrested by the police [in] February 2016. Owing to [Student A’s] confession, the PSB quickly located [Friend A] and other church brothers or sisters. The gathering group of the Local Church in Nanping was thoroughly destroyed.
Due to my close relationship with [Friend A] as well as her gathering group in Nanping, I was in dangers. Considering my safety, I had to decide to go to Xiamen, temporarily hiding at my cousin's home in [a named town in] Siming District. Following that, I heard that [Relative A] and [Brother A] as well as some of members of the Local Church were arrested by the police. I was very scared, and my cousin had to ask her friend to arrange me to leave China.
[In] April 2016, I was finally organised by my cousin's friend to leave China from [a named airport].
[Days later], the police went to my home for me. Fortunately, I had already escaped from China. But, my families were implicated by my case. My parents [and family members] were subjected to investigation by the PSB.
In Australia, I attend the Local Church actively.
I am now regarded as one of leaders of ‘Evil Cult’ by the PRC authorities. If I go back to China, I must be arrested and imprisoned immediately by the police and I must be subjected to persecution by the Chinese government.
Independent information
DFAT Country Information - Report People’s Republic of China, 3 October 2019 variously provides the following information under the heading of Religion (underlining added):
China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam,
Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).
The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.
In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.[1]
…
[1] DFAT Country Information - Report People’s Republic of China, 3 October 2019 paras 3.28- 3.32
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.
The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). 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 September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.
The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.
According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.
The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of nonrecognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.
Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.
Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.
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.
While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.[2]
...
Other groups, including ‘cults’
The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.
Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.[3]
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The Shouters (Local Church)
The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.
The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning (also known as the Church of Almighty God, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.[4]
[2] DFAT Country Information - Report People’s Republic of China, 3 October 2019 paras 3.37-3.49
[3] DFAT Country Information - Report People’s Republic of China, 3 October 2019, paras 3.93-3.95
[4] DFAT Country Information - Report People’s Republic of China, 3 October 2019, paras 3.105-3.106

In a 2016 report, Freedom House categorises provinces in China in terms of the levels of religious persecution within those provinces (with the categories being low, moderate, high and very high). Fujian Province is listed as low.[5]
[5] Freedom House, The Battle for China's Spirit, 2016, p.25.
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of China and accordingly her claims will be assessed against China.
The Tribunal hearing lasted almost three hours. The Tribunal explored with the applicant in considerable detail her written claims testing for consistency and credibility. The applicant was very detailed and consistent in her various responses, which also created the impression for the Tribunal that the applicant was recounting events from actual experience.
However, a credibility concern for the Tribunal is the fact that DFAT in the assessment extracted has been unable to verify the extent to which the Local Church remains active in China. This may seem to be at odds with the relevant prevalence of the claimed Local Church activity of the applicant in four different locations within Fujian province.
The Tribunal also has credibility concerns with the applicant’s claims regarding the arrests by authorities that occurred from February 2016 of her fellow Local Church members, that the applicant herself is wanted by authorities, and that authorities came to her family home looking to arrest the applicant shortly after she had left for Australia.
This includes on the basis that neither the applicant nor her fellow Local Church members had suffered any difficulties from authorities in the preceding six years of her practice. It is also because there is no documentary evidence provided from authorities such as arrest warrants and summonses. It is also because the DFAT information indicates sophisticated entry and exit procedures in China that would suggest, had the applicant been of adverse interest to authorities at around the time that she departed China, she would have been prevented from leaving China. In response to this concern, the applicant indicated that she had left China three days before authorities came seeking her arrest and that therefore she was not of adverse interest at the time that she left the country. The Tribunal is also concerned at the fact there is no documentary evidence of claims that her family were investigated by authorities on account of the applicant’s involvement in the Local Church.
These various concerns caused the Tribunal to probe the applicant quite considerably in terms of the substance and detail of her claims, including the claims of arrests of fellow members, and she herself being of adverse interest. As indicated, the applicant was detailed and consistent with her written claims in her various responses.
The various credibility concerns identified do not, cumulatively considered, negate the applicant’s claims. Some of the concerns made the claims potentially implausible. The fact that something is implausible does not mean that it did not happen. A credibility concern also relates to the lack of confirming documentary evidence. The Tribunal acknowledges potential difficulties in the acquisition of confirming documentary information.
The Tribunal does not consider that the cumulative impact of the credibility concerns identified overcome the consistency and detail provided by the applicant in her oral evidence.
The Tribunal considers that it needs to give the applicant the benefit of the doubt in terms of weighing her claims against matters adverse to the applicant’s credibility, or the potential for her to have thoroughly rehearsed untruthful claims. However, the Tribunal repeats the applicant was detailed and consistent in answering the Tribunal’s questions which also gave the impression that the applicant was recounting events that actually happened.
Based on all of the evidence, the Tribunal is satisfied that from 2010 until she left China in 2016, the applicant was a member of the Local Church in China. The Tribunal is satisfied that the applicant took an organisational role in the church, arranging training sessions in different locations for members who themselves were from different locations.
The Tribunal is prepared to accept that at the time the applicant left China, some of her fellow Local Church members had been arrested and that the applicant was of adverse interest to authorities.
On that basis, the Tribunal considers that the applicant is of negative interest to the Chinese authorities based on a suspicion as to her prior involvement in the Local Church. The Tribunal considers that this places the applicant at a real chance of facing serious harm based on her religion. The risk to the applicant would be a threat to the applicant’s liberty and/or physical harassment or physical ill-treatment of the applicant during the process of detention and questioning.
The Tribunal accepts on the evidence, including provided after the hearing, the involvement of the applicant in the Local Church in Australia since April 2016. The Tribunal accepts that, on return to China, the applicant would wish to continue to practise as a member of the Local Church.
Given the DFAT information extracted in this decision as to the unlawful status of the Local Church as an evil cult, the Tribunal would be satisfied, even if it were not for the events of February 2016, that the applicant would face a real chance of serious harm based on her religion as a result of practising in an ‘evil cult’. The Tribunal considers that this would pose a not insignificant risk to the applicant of being detected in such unlawful activity.
The Tribunal considers that the practice of the applicant’s religion would be the essential and significant reason for the harm. The Tribunal is satisfied that the persecution would involve systematic and discriminatory conduct. The Tribunal considers that the real chance of persecution relates to all areas of China. This is because, firstly, there is the possibility of the applicant being of adverse attention immediately on return to China as she enters the airport. Even if this is not the case, the adverse attitude of the Chinese authorities towards this unlawful religious practice occurs throughout all of China, and therefore the applicant faces the real chance of serious harm based on her continuing desire to practice in the Local Church.
The Tribunal is satisfied that the applicant does not have the right to enter and reside in any other country.
Given these findings, the Tribunal is satisfied that the applicant has a well-founded fear of persecution on the basis of her religion and that she otherwise satisfies the refugee criterion.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 4975

21 October 2020

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