1622300 (Refugee)

1622300 (Refugee) [2020] AATA 346 (10 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622300
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:10 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 February 2020 at 3:21pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – membership and activity in underground Catholic church – death of sister after arrest and detention – organisation of study groups for migrant workers – arrested, interrogated, beaten and threatened, but not charged – left China through major airport on own passport – membership and activity in church in Australia – genuine but low-level member – no adverse profile to authorities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 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 China, applied for the visa on 3 May 2016. The delegate refused to grant the visa on the basis that, while satisfied that the applicant is a member of the Catholic Church, found that he did not have an existing adverse profile in China and the delegate was not satisfied that there was a real chance of persecution on the basis of religion or that there were substantial grounds for believing he faced a real risk of significant harm if he returned to China.
The applicant appeared before the Tribunal on 15 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant’s registered migration agent 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). 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), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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, 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
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China 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 they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Chinese passport to the Department. On the basis of this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
The applicant provided a statement, signed and dated 3 May 2016, with his Protection visa application. In it he claims that he was born in Fuqing City, Fujian Province, that he is married and has two children, as well as parents and a [sibling] who all live in China. He states that he arrived in Sydney on his own passport [in] March 2016 and is fearful of being persecuted in China due to his religious faith.
He states that his family have embraced Roman Catholicism for several generations, that his grandfather was a responsible person in his village, was a devoted Roman catholic his whole life and during China’s Cultural Revolution suffered a lot and was imprisoned several times for upholding his religious faith.
He states that when he was little his grandfather taught him about Catholic teachings. He claims that his grandfather was arrested a few times during the applicant’s childhood for organising underground Catholic activities and preaching Roman Catholic gospels. He states that sometimes his grandfather would travel to other places to avoid arrest, and that the police would then turn their attention to the applicant’s family, such as tracking their movements, intimidation and harassment. He states that his family practiced their religious faith carefully and secretly attended religious activities in private homes.
He stated that his whole family has been persecuted and discriminated by the Government because of his grandfather, such as his father being sacked from the state-owned factory where he worked not long after the applicant’s birth, as a result of his grandfather’s high profile in the underground Catholic Church. He states his father was denied the issue of a business licence because of his family’s religious background.
He states that his younger sister loved God very much and hoped to become a nun. He states that she left their family home and went various places, in accordance with the underground church’s arrangements, to assist in preaching Catholicism. He states that in May 1995 she was organising a baptism class in the Nanping City area, when she was arrested by the local police. She was released after three months, but by then was physically weak and skinny and became ill, and within four days of her release passed away.
He states that his sister’s death hit his parents. His father became sullen and his mother suffered a nervous breakdown and developed a mental disorder that she has had ever since. He stated that his religious faith was shaken and he began to wonder about the significance of upholding Roman Catholicism. He states that he just managed to maintain his Roman Catholic faith with his grandfather’s daily counselling. He states that his grandfather later mentioned to him that he wished for the applicant to take over his role of being responsible for the underground Catholic affairs of their village. He goes on to state:
I reminded myself that the Roman Catholicism faith had already brought so many sufferings to my family. Also, because I feared that I would become the government’s major persecution target, I didn’t respond him a promise. My Grandpa passed away at the end of 1998. His death acted as that I lost the indicator lamp in my spiritual life. Therefore I gradually neglected my religious faith. Since about half year after his death, I had barely gone to attend church activities.
He states that he bought [a vehicle] in August 2012, from which he made a living providing [work] services. He refers to an incident which occurred on the evening of [a day in] August 2014, when he was driving his [vehicle] home after completing a day’s work. As he turned a corner on a narrow mountain road he saw two villagers walking on the road, and had to make a sudden right turn to avoid them. He stated that his [vehicle] was about to fall off the road and at the critical moment, he repeatedly called, ‘Holy Mother Mary, please rescue me!’ He states that the [vehicle] got stuck in a tree on the hill just off the roadside and he was unhurt. He states that he ‘was in a paralysis of terror’, that the scene of his grandfather’s funeral flashed through his mind, and he felt there was a mighty hand holding up his [vehicle]. The villagers came to his rescue and when he reached the ground he knelt down. He states that it was Jesus and the Holy Mother who had saved him.
He states that in the following days he began repenting, praying and confessing, and rushed back to the Heavenly Father like the prodigal son in the Bible. He states that he returned to Roman Catholic religious life and will never leave it again.
He states that in 2015 he sold his [vehicle] and became [an Occupation 1]for a company in another village. He states that he found that many migrant workers from other provinces did not know about Jesus, and also suffered discrimination, and that every day he tried to approach them and help them. He states that he felt that he should follow the example of his grandfather by trying to spread the gospels and he often talked to them about Catholicism. He stated that after a half year’s efforts and prayers he convinced eight workers. From October 2015 he organised Bible study, which was conducted in the houses they rented, on Saturday evenings. Sometimes he would invite senior church members from surrounding villages to lecture and share the words from the Bible.
He states that at around 7:30pm on [a day in] January 2016, while he and another four workers were sharing words from the Bible, two police officers and four assistant police officials burst into their gathering, confiscated their Bibles and took all of them to the [Location] public security bureau, where they interrogated him. He states that they asked him who appointed him to preach Catholicism to the migrant workers, to which he replied that he was self-initiated by the power of the Holy Spirit. He states that they slapped him on the face and told him to ‘stop the spooky manner’. He states they asked for details of the names of participants at the gatherings, the venue and timing. They asked him the name and address of their underground priest, which he states he refused to answer, after which they began to hit and kick him, before locking him in a detention cell.
He states that on the morning of the third day he was interrogated again with similar questions as the day before, and that during interrogation the police slapped him on the face from time to time. He states that on that occasion they mentioned his grandfather. He states:
They wanted me not to follow my grandpa’s footsteps and, become the church leader and the enemy of official Catholic Church. Otherwise, they would put me into jail.
He states he was detained eight days, until his family paid a [amount] yuan bribe, and he was released on [a day in] February 2016. When he was released he was asked to write a ‘guarantee letter’ that he would not organise and attend Underground Catholic Church activities. He states that after his release he became aware that the other participants had been released on the second day after detention.
He states that after he was released his mother’s mental problem seriously deteriorated, therefore he planned to flee China to seek religious liberty. He states that he found an agent, got an Australian visa and travelled to Australia [in] March 2016.
He states that since arriving in Australia he has been practicing his Roman Catholic faith at [Suburb 1] Church in Sydney, and that he enjoys the religious culture and freedom in Australia. He states that he will never give up his Roman Catholic faith because although he ‘had previously let God’s expectations down’, God has been merciful towards him. He states that he will not attend the patriotic church in China ‘because I only believe in the unique and holy Catholic church, passed down from the apostles.’
Claims made at the interview with the delegate
The applicant attended an interview with the delegate on 30 November 2016, at which the delegate questioned the applicant in relation to his knowledge of Christianity. According to the delegate’s reasons, the applicant demonstrated sound knowledge of the Pope, of baptism and of the Holy Trinity, which satisfied the delegate that the applicant understands the Catholic faith. The applicant provided a letter of support from [a] Catholic Church, which indicated he had been attending church every Sunday. On the basis of the applicant’s oral testimony and supporting documentation and the absence of any contradictory information, the delegate accepted the applicant is a member of the Roman Catholic Church.
At the interview the delegate claimed:
a.That he cannot return to China because he will be arrested if he returns there and practice his faith;
b.That he will only attend churches which the Pope has sanctioned and therefore cannot attend the mainstream churches, which leads him to practice his faith in underground churches;
c.When the delegate put to the applicant that relevant country information indicates the Pope and Vatican have announced that they now recognise the mainstream churches in China, which would allow him to attend these churches, he stated that he did not know the Pope had made this announcement, and claimed that he will not attend the mainstream churches because there is a difference between the Pope recognising and appointing bishops and churches. He stated that he will not attend a mainstream church because it is not a real Catholic church because it was not appointed by the Pope.
The applicant stated at the interview that he could not produce any evidence supporting his claim that he was arrested in January 2016.
The delegate’s decision indicates that the Applicant was inconsistent in his testimony in that he first indicated that he could only attend churches sanctioned by the Pope, but when he was later informed the Pope had sanctioned mainstream churches in China, allowing him to practice his faith publicly without the risk of persecution, he indicated that he rejects the Pope’s word.
Evidence provided to the Tribunal
In addition to a copy of the delegate’s decision, the applicant provided the Tribunal with the following documents:
a.Copy of his passport, issued on 17 May 2014;
b.References from the following persons:
i.Father [A], Chaplain to [a Church organisation], dated [December] 2019;
ii.[Person B], President of [a Church organisation], dated [December] 2019;
iii.[Person C], member of [a Church organisation], dated [January] 2020;
iv.[Person D], [a Church organisation], dated [January] 2020; and
c.Photocopies of 15 photographs of the applicant’s church activities in Australia.
The applicant confirmed at the hearing that he understood his claims for protection, that the content of his visa application and statement accompanying his visa application are true and correct and that he does not wish to make any changes to his application or add to the claims made in his application.
The applicant was born in [year] and lived in Fujian. He is married and has two children, all of whom remain in Fujian. His parents are still alive and live in the same home as his wife and children. He completed middle school in China. He was [an Occupation 1] in China from February 2015, and prior to that an [Occupation 2].
He stated that he arrived in Australia [in] March 2016 by plane from Guangzhou and travelled on his own passport. He stated that his travel to Australia had been organised by an agent, who was introduced by a friend in his church who had another friend who knew the agent, and that he came to Australia to avoid persecution and to pursue his faith. As to why he travelled to Australia on his own, he stated because only he was persecuted and that his family were not facing persecution.
He stated that he currently lives in a house in [Suburb 2] with others from China. When asked whether he was working in Australia he stated that he was. When asked where he worked, he stated [Suburb 3], but stated that he works in different locations, and at the time of the hearing was working as [an Occupation 3], but stated that he just follows someone else. He stated that he commenced this work about three or four months after arriving in Australia, though he stated he cannot remember exactly.
The applicant gave evidence of his Catholic upbringing, stating that he was born in a Catholic family, although his family practiced their faith in an underground church, the activities of which were kept secret. He stated that they attended mass regularly, as well as held prayer sessions when elderly people were about to pass away or if someone was sick. In addition they held confessions. He stated that because it was an underground church, a priest would not attend every meeting, and that when a priest came they would arrange a meeting. He stated they would also hold study classes for people who had not yet become Catholic, and they would sometimes organise retreats.
He stated that his parents attend the underground church in China and that all of his family goes to the same church as his grandfather was in charge of the local underground church. He stated this is why he has exposure to church activities as well as helping out with the church. He stated that because his grandfather was the leader of the church, he instructed him as to what he should do, however his grandfather passed away in 1998. He stated that after his sister passed away in 1995 he lost faith for a period of time, and then his grandfather passed away as well, and at that time he didn’t really go to church.

The applicant gave evidence of the incident involving the [vehicle] in 2014, which was consistent with his written statement. He stated that in this incident his [vehicle] toppled over, and because of his religious belief, in his heart he called out to the Lord and Saint Mary to help him. The [vehicle] slid down the hill and got stuck on a small tree. He thought that if it wasn’t for the Lord’s blessing his life would be over. He froze and was too scared to move. He stated that the two villagers he had avoided on the road helped secure the [vehicle] and helped him out of it. He stated that he was thankful to the Lord, whom he believed had protected and blessed him. He stated that from that moment he decided to return to the church.
The applicant stated that he attended church services in China regularly, and that even when he was busy with family and his business he still went once a week. The applicant was able to provide details of services which were held, stating that sometimes they had the Liturgy of the Word and the Liturgy of the Eucharist, and that when a priest attended they would have communion. He stated that they did not always have a priest attending, in which case a senior member who was the same age as his grandfather would host the service. As to whether there were any particular prayers which were said, he stated that they would pray according to the gospel which was read that day, and that sometimes they would pray in accordance with the Pope’s instruction as to what they had to pray for that day.
The applicant stated he was baptised when he was in year [number] or thereabouts. He stated he remembers little about it, but was able to explain that baptism meant that he would have a purified heart and could devote himself wholeheartedly and become a true member of the Catholic community. He was able to explain the Liturgy of the Eucharist, explaining that the priest would perform sacramental rites and would then rehearse the Last Supper. The priest would then lead the members of the church to say the Our Father and the Creed, following which the members of the church would offer each other a sign of peace. He described the process of queueing to take communion, followed by silent prayer.
The Tribunal asked the applicant whether he was involved in any other Catholic-related activities, to which he again responded that when elderly people were going to pass away or when someone was sick they would pray for them. The Tribunal again asked whether he was involved in any other activities. He mentioned study classes and retreats, and stated they would have to do a lot of preparation for these things and that he would do what he could to help. He stated that others who had time, like his grandfather, might go out to evangelise, but he was busy working, so he didn’t do that. He stated that his grandfather would write the Bible out because he did not have his own Bible. He stated that if a priest was coming they had to organise the mass and notify everyone, and that they would have to choose a secret location and choose who to notify. He stated that because his grandfather was the leader, he did a little bit more than other members, and that sometimes he did the organising with someone else.
When asked whether at any stage he did any preaching or was involved in converting others, he stated not really, because he is not really well educated. He said that he did whatever he could do in his way, such as talking to people and telling them about the gospels, but not in the same way as senior members of the church. He stated that he always felt ashamed that he didn’t have enough understanding of the Bible.
The applicant gave evidence that he has read the Bible and demonstrated some familiarity with it by telling the Parable of the Prodigal Son with some level of detail.
The applicant confirmed that he was aware of other churches and groups in his part of China, but stated that he doesn’t know much about them as he only believed in his Roman Catholic faith.
As to his religious practice in Australia, the applicant stated that he currently attends ‘the [Suburb 1] church’, which he stated is part of the [Church organisation]. He stated that the most important reason for coming to Australia is to pursue his religious belief, and that God gave him a second chance for life and he won’t give it up.
The applicant provided written references from clergy and members of the [Church organisation], which indicate that since April 2016 the applicant has regularly attended weekly Catholic mass at [a] Catholic Church [in Suburb 1]. The applicant has also provided 15 photographs which show him with Catholic clergy and at various church gatherings, including at St Mary’s Cathedral in Sydney. The applicant stated that these photographs are proof that he has been attending church since he has been in Australia. He stated that he feels that as a Catholic he needs to do something to serve the Church, and that he does not want to be a normal member. He stated that he wants to serve as though it’s his work, and that he wanted to do the same thing in China. He stated that there is a group in the church he attends in Sydney that manages housekeeping, such as cleaning and providing things to greet the members of the congregation, and that he is a member of that group.
The applicant claimed at the hearing that while he was in China he had organised a study group for people to meet to study the Bible. He stated that about 7.30pm on [a day in] January 2016 two police officers and four assistant police came in and saw what they were doing, took all of the bibles and arrested them. He stated that he was taken to [Town] Police Station. He stated that there were only five people studying in the group at the time, including himself, because it was Chinese New Year at the time and not as many people as usual were participating.
He gave evidence that at the police station he was questioned on the night he was arrested. They asked him who had organised the meeting, to which he stated that he replied that it was God’s wish that they meet and that they came voluntarily. They asked the applicant how long he had been holding these meetings, whether he had other paces to meet, who else was in the group, but he told them only the people who were present. He stated that the police stated they were practicing superstitions and made up some trumped up charges.
He stated that they slapped him and asked him the location of the church, the name and address of the priest, but he remained silent. He stated that they started to kick and punch him, and because he wouldn’t answer their questions they locked him up. He stated that nothing happened on second day. On the third day he was questioned again, slapped, kicked and punched. He stated that all of the sudden they mentioned his grandfather, because he was quite an influential person, and well known in the Catholic community. He stated that they threatened him not to follow in his grandfather’s footsteps, telling him not to follow superstitions or evangelise people. The applicant stated that he was locked up for eight days in total. When asked why he was released, he said the police took a bribe, otherwise he would not have been released.
When asked whether there were any conditions of his release, he stated that they made him write a promise that he would not engage in these activities again, otherwise he would be arrested. He said they gave him some warnings and threats.
When asked whether he was charged with anything, the applicant responded that he was not charged, and that the police just said it was superstitious activity. The Tribunal questioned what, if this was the case, the police gave as the reason for taking him into custody. He stated it was because they had organised a meeting and practiced superstitious activities.
When asked by the Tribunal to confirm what the purpose of the gathering was, the applicant responded that it was just a regular meeting to share information about the Bible. He stated the other attendees were his colleagues in the factory where he worked, and that slowly he gathered a small group of people, and that there were eight people in total. He stated that because it was Chinese New Year some of them went back home, but these four were unable to purchase tickets. He stated that they were away from home and lonely, so he tried to help them and introduce the Catholic belief. He stated that spiritually they felt a void as they had no clear targets for their life, and he thought this bible study was an opportunity to serve the Lord.
When asked whether the police placed any conditions on him after that, he stated no, but that he found out they were spying on him. He stated that he wasn’t 100% sure, but he saw people who looked sneaky, and sometimes the government will employ non-government people to spy. He confirmed that there were no other incidents involving the police, as not long after this he arrived in Australia.
The Tribunal asked the applicant the reasons he fears returning to China. He told the Tribunal that his whole family is targeted and discriminated against by the government in China because they are a Catholic family. He stated that because his grandfather was the person in charge of the local church, the local government came to his family all the time to harass them, and have targeted and discriminated against the whole family. He stated that his grandfather was arrested multiple times, and to avoid this he would sometimes hide somewhere far from home, after which the applicant’s family would be targeted. When asked how they would be targeted he stated they would be stalked, threatened, and sometimes in the middle of the night people would break in to do things to scare them. He stated that his father was fired from his factory job, despite being good at his work, and that he subsequently had difficulty obtaining a licence to operate a business. He stated that he himself married at a late age, for which he should have been rewarded, but despite this was unable to obtain a marriage licence. He stated that all sorts of reasons were given for not issuing him with a marriage licence, and in the end he had to bribe someone to get his marriage certificate. He stated that when his son was born there were a lot of difficulties in registering him with his hukou registration. He stated that his younger sister was persecuted to death because of her religious beliefs in Catholicism. He stated that she was well known in the neighbourhood and his grandfather always took her to church. When she was 16 or 17 she gave up further study opportunities and went to become a nun. In 1995 she was organising a study class in the Nanping area when she was arrested. She was released a few months after that. Although she went back home after this, she was very sick and skinny and after a few days she passed away. He stated that it was the darkest year for his family, as a result of which his mother developed schizophrenia, aged rapidly and became very silent.
The applicant claims that he was arrested on [a day in] January 2016 for organising a Bible study group with four migrant workers from other provinces. He stated at the hearing that when he was arrested he was warned that if he did this again he would be arrested again. He told the Tribunal that he is scared of being arrested again as it will be a disaster for his whole family. He stated that the Chinese government discriminates against him, which is why it is difficult for him to do anything. He stated that even though he was only kept a prisoner for a few days when he was arrested, he was very scared because he cannot give up his religious beliefs as he is grateful to God for a second chance at life and he will never give up his beliefs.
The Tribunal questioned the applicant as to whether Catholicism can be practiced in China. He acknowledged that it can, but stated that his family practice their faith in an underground church. The Tribunal questioned the applicant as to whether his family continue to practice their faith, given they remain in the applicant’s home town. He responded that they are just regular believers and are different to him. He stated that his mother doesn’t go to church very often because of her age and mental condition, and his wife has to look after their children and therefore doesn’t have time to go out to evangelise or to help with chores of the church. He stated that it is different for him because of his grandfather. He stated that he has special feelings towards the Catholic Church, and that because of his long exposure to the religion, he feels that he has developed a dependency on religion.
The Tribunal discussed the following country information with the applicant:[1]
[1] DFAT Country Information Report, People’s Republic of China, 3 October 2019.
RELIGION
3.30.    It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million …
3.31.    The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly…
3.32.     In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered)…
Religion in Fujian
3.33.    While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
…
3.36.    DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country.
Government framework regarding religion
3.37.    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).
3.38. 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.
…
3.44.    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 non-recognised 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.
3.47.    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)…
3.48.     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
3.76.    China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77.    In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
3.78.    There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests … Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
3.79.    Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice …

The Tribunal explained that this independent information indicates that there are many Christians in China, many of whom practice their faith in unregistered and informal gatherings, and generally the authorities are not interested in such small gatherings in private homes, and in particular there has historically been a higher degree of religious freedom in Fujian Province, as long as practices do not challenge the authority of the Chinese Communist Party. The Tribunal explained that this information might lead it to infer that, based on the evidence he gave of the practice of his faith in an underground Catholic church in China, the applicant could practice his religion, with only a remote chance of him coming to the attention of, or being harmed by the authorities.
The Tribunal discussed specific country information from this Report about Catholicism in China:
Catholics
3.89.    The Chinese Catholic Patriotic Association (CCPA) has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to pledge support publicly for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.
3.90.     In 2016, the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA. In 2018, China reached a provisional agreement with the Vatican under which Pope Francis recognised several Chinese state-appointed bishops who had been ex-communicated.
3.91.     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.
3.92.     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.
The Tribunal explained that this information indicated that Catholics in China can experience harassment and discrimination when then their activities are regarded by the authorities to be politically sensitive, and that the targets of pressure and harassment appear to be church leaders and activists, however Catholics in general face a low risk of discrimination. The Tribunal indicated that on the applicant’s evidence, there is no indication that his religious activities in China were of a politically sensitive nature, which might lead it to infer that he could practice his religion as described at the hearing, with only a remote chance of him experiencing harassment or discrimination, of coming to the attention of the authorities or being harmed by the authorities.
The applicant responded that he did not believe the country information comes from official sources. He stated that in relation to Pope Francis’ recognition of several Chinese state-appointed bishops, recognition is not the same thing as being appointed by the Pope. He stated that the appointment of bishops is the call of the Catholic Church.
In relation to small gatherings being allowed, he stated that he doesn’t think they are allowed, and they need to be approved first. He argued, if it’s ok to have small meetings in private homes, why was he arrested for holding a meeting of such a small scale? He stated that if he reaches the level his grandfather reached within the church, he will risk his life.
In relation to the Chinese Catholic Patriotic Association (CCPA), he stated that there is only one Catholic Church in China, and questioned why the Chinese Government had to make another branch of it in China. He stated that the CCPA is made up by the Chinese government, is off-track from true Roman Catholicism; that the Roman Catholic Church is the only true church, not other branches, and the only leader is the Holy See. He stated that the Chinese government always says one thing and does another; that they say they will grant people religious freedom, but in practice it doesn’t happen. He stated that in China you can only enjoy freedom of religious belief, but this is for the sake of China maintaining a good reputation in the international community. He stated that the Chinese government does not want any foreign influence, that it wants everything to be approved first, and all meetings are to be held in a set place at a set time.
The Tribunal raised potential concern with the applicant that based on the country information available, Pope Francis has recognised certain bishops appointed by the CPCA, and therefore it may be possible for him to worship within a registered Catholic church if he were to return to China. In response, the applicant stated that there is only one Roman Catholic Church and this is the religious belief of his whole family, and it would be hard for him to suddenly change to some other form of worship.
The Tribunal raised concern that based on the evidence provided and the available country information, it may have some difficulty accepting his claims that he was arrested on the basis of his religious practice. The Tribunal noted that the available country information, from a recently updated report (3 October 2019) indicates authorities in China are unlikely to be interested in the activities of small gatherings of unregistered churches unless they have a political element. The Tribunal indicated that on the basis of the available information the authorities may be more interested in the activities of church leaders, but on the applicant’s evidence he is not a church leader, despite his claims that his family has received harassment and discrimination in the past because of their association with his grandfather. The applicant stated that when he was arrested they were sharing some examples from the Bible. He asked why this was not allowed, and stated this was the case because it is not approved by the Chinese government.
The Tribunal raised concern that on the applicant’s evidence he was able to leave China easily, travelling through a major airport with his own passport, which was issued in May 2014, prior to his claimed arrest. On his evidence he was not charged with any crimes and was not required to report again to the authorities. The Tribunal raised that his ability to leave China with use of his own passport, through a major airport, may indicate that his activities were not of concern to the Chinese authorities and he did not have an adverse profile with the Chinese government at the time of his departure from China.
The applicant responded that he has his belief and it’s not approved by the Chinese government, which will not allow him to continue his faith. He stated that if he has freedom of religious belief in China he wouldn’t have to do everything in secret and his family wouldn’t have encountered all the disasters it has experienced. He stated that he would not lie about his personal experience and all of these difficulties, that he wouldn’t curse his family members’ health.
The Tribunal asked the applicant whether there is any other reason or basis on which he believes he will be harmed if he returns to China, to which he responded that there wasn’t.
Assessment of claims
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him 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 her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal accepts the applicant’s claims regarding being raised a Catholic and his practice of Catholicism in an unregistered church in China, as well as his baptism as a Catholic. The Tribunal accepts this on the basis of the applicant’s knowledge of aspects of Catholic faith, including his evidence at the hearing, which included demonstration of knowledge of a parable from the Bible and his knowledge of the Liturgy of the Eucharist.
The Tribunal also accepts that the applicant has been attending [a] Catholic Church in [Suburb 1] for Sunday mass. This claim is supported by the letters of reference from clergy and members of the church, although the Tribunal notes that according to the letters of Father [A] and [Person B], the time of the applicant’s first coming to that church (April 2016) was given to them by the applicant. Further support for the applicant’s attendance at this church and his participation in other Catholic Church activities in Australia is provided in the 15 photographs supplied to the Tribunal, as well as his oral evidence of attendance at the church and participating in voluntary activities associated with church housekeeping. The Tribunal is satisfied that the applicant has continued to practice his Catholic faith in Australia and has demonstrated a desire to participate in the voluntary activities of his parish.
Despite the lack of any corroborative evidence, the Tribunal is prepared to accept the applicant’s account that his grandfather held a senior role within an unregistered Catholic Church that his family attends in his village. The Tribunal is also prepared to accept that as a result of this the applicant has had some involvement in organising activities of this church, such as organising dates and venues for mass when a priest came to town.
However, based on the applicant’s evidence, there is insufficient evidence to indicate the applicant occupied a leadership position within the church or any position which is likely to bring him to the attention of authorities in Fujian. The applicant spoke several times about senior church members and leaders and at no stage of the hearing referred to himself as a senior member. In his written statement he states that he would sometimes invite senior church members from surrounding villages to lecture. When asked whether he was involved with proselytising, he stated that he did not as he was too busy with his work to do so. In his written statement he states that his grandfather wanted him to take over his role of responsibility for organising the underground church’s affairs in their village, however he states that he did not respond to his grandfather with a promise, that his grandfather died in 1998, after which he gradually neglected his religious faith.
The Tribunal also accepts that should the applicant return to China, he is likely to continue to worship in an unregistered Catholic Church of the kind which he described in his evidence. The Tribunal accepts that the applicant has reasons and principles as to why he would worship in an unregistered Catholic Church, rather than the State-sanctioned Catholic Church.
The Tribunal notes that the delegate’s written reasons, in which the delegate found that the applicant was not consistent in his testimony because he first indicated that he would only attend churches sanctioned by the Pope, however after being informed that the Pope has sanctioned churches in China, which would allow him to practice his faith at these churches, the applicant indicated that he rejected the Pope’s word.
The Tribunal considers that the applicant provided further explanation of his beliefs at the hearing. Based on the most recent country information, published on 3 October 2019, the Tribunal raised with the applicant that Pope Francis has recognised certain bishops appointed by the CPCA, and therefore it may be possible for him to worship within a registered Catholic church if he were to return to China. In response, the applicant stated that there is only one Roman Catholic Church and this is the religious belief of his whole family, and it would be hard for him to suddenly worship elsewhere. He gave evidence that the bishops and priests of the network of underground churches are appointed by the Pope. He questioned why the Chinese Government had to make another branch of the Catholic Church China, and that the Roman Catholic Church is the only true church, not other branches, and the only leader is the Holy See.
While the Tribunal has considered the applicant’s statement made at interview that he ‘rejects the Pope’s word’, the Tribunal considers this to be a response to the information he had been provided by the delegate that the Pope now recognised the mainstream churches in China, which he claimed he was unaware of until noted by the delegate. According to the delegate’s decision, the applicant stated there is a difference between the Pope recognising and appointing bishops and churches. This is consistent with the evidence he gave at hearing of one Catholic Church. The applicant provided further evidence as to his scepticism of the reasons for a State-sanctioned Catholic Church, in particular to avoid foreign influence from the Vatican. The Tribunal finds that based on the applicant’s evidence overall, he continues to recognise the Pope as the spiritual leader of the Catholic Church, and gives no weight to the statement made at the interview with the Department that he rejects the Pope’s word.
The Tribunal is satisfied that, based on the applicant’s evidence, his participation in the State-sanctioned Catholic Church would not be in accordance with his beliefs, and that he would continue to worship in an unregistered church because of his belief in there being only one Roman Catholic Church, which has the Pope as its spiritual leader.
The Tribunal does not however accept the applicant’s claim that he was arrested and tortured by authorities and held from [a day in] January 2016 to [a day in] February 2016. The Tribunal does not accept that a Bible study gathering of the kind and size as described by the applicant would have attracted the interest of the authorities to justify his arrest and interrogation. The applicant confirmed at his interview with the Department that he had no evidence to support his claim that he was arrested. The applicant confirmed this was the case at the hearing as well, and when asked whether he was charged in relation to any offences, he stated that he was not charged, and that the police took him into custody because of ‘superstitious activity’.
Having considered the recently updated country information regarding the treatment of Catholics in China, the Tribunal accepts that overall there has been a tightening of religious affairs in China, with an increase in state control of both registered and unregistered churches in recent years, as well as pressure for house churches to ‘sinicise’ their religious teachings[2]. However, the country information indicates that government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential networks, and that leaders of both registered and unregistered churches are subject to greater scrutiny that ordinary worshippers. It indicates that leaders who participate in protest activity are at high risk of official sanction, although this is more likely to relate to their activism than to their religious affiliation or practice[3].
[2] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraphs 3.36 and 3.78.
[3] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraph 3.79.
The country information also indicates that religious practice is generally able to thrive to a greater degree in Fujian province than in other parts of China, and that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as their practices do not challenge the interests or authority of the Chinese Communist Party. While the country information indicates that religious control in Fujian has incrementally tightened in line with the rest of the country, this tightening has been from a looser base.
The country information also indicates that in addition to state-sanctioned Catholic churches, China’s State Administration for Religious Affairs (SARA) historically permitted friends and family to hold small, informal prayer meetings without official registration, and that while Catholics in China can experience officially-sanctioned discrimination where their activities are regarded by authorities to be politically sensitive, Catholics in general face a low risk of societal discrimination[4].
[4] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraph 3.92.
On the applicant’s evidence he was arrested [in] January 2016 because he was holding a Bible study group which involved four workers, sometimes up to eight workers in total. While the country information indicates that regulations prohibiting proselytising are enforced across Chinese cities, it states that ‘Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups)[5]. The Tribunal considers the applicant’s description of this Bible studies group to be that of an informal prayer meeting or private worship in a small group, rather than a public proselytising. Nothing in the applicant’s evidence indicated that this study group was tied to or associated with political, ethnic or security issues.
[5] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraph 3.47.

Based on the information available to the Tribunal, in particular that relating to worship in unregistered churches, religion in Fujian and discrimination faced by Catholic worshippers generally, the Tribunal finds it highly remote that the activities outlined by the applicant in his statement and evidence at hearing would attract the interest of police authorities to justify his arrest and interrogation. In the absence of any other evidence from the applicant to support his claim that he was arrested, the Tribunal does not accept that he was arrested in January 2016.
On the applicant’s evidence he was not charged with any crime and he was able to leave China in March 2016 with his own passport, through a major airport. Independent information indicates that China’s major airports have a system for monitoring exits and entries. According to the most recent DFAT Report (3 October 2019), to which the Tribunal is to have regard to pursuant to Ministerial Direction No.84, security monitoring capabilities at China’s major 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. According to this report the Chinese government maintains an immigration exit control list.
A similar state of affairs is recorded in the earlier DFAT country information reports, issued on 21 December 2017 and 3 March 2015. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities and security monitoring capabilities at major airports are comprehensive. The Tribunal considers that if the applicant was arrested by the police in January 2016, and the police subsequently arranged for spying on the applicant, it is improbable that the applicant would have been able to depart through Guangzhou Airport on his own passport without incident. The Tribunal considers the absence of such an incident supports a finding that the applicant’s religious practice in China was not such that it attracted the interest of police authorities.
The Tribunal has also considered the applicant’s claims that his family has experienced discrimination as a result of their association with his grandfather. On the applicant’s evidence, his grandfather passed away at the end of 1998. When asked about the details of this discrimination, he stated that sometimes when his grandfather went into hiding, the applicant’s family was stalked, threatened and people would break into their house to scare them. He stated that his father was fired from a factory job not long after the applicant’s birth (which was in [year]). He gave evidence of his sister’s arrest in 1995, which he claims was the result of her imprisonment following her activities as a nun or as a result of the process of becoming a nun in the underground Catholic Church. The Tribunal notes that each of these examples of discrimination occurred over 20 years ago, and does not consider them to be evidence that the applicant would experience discrimination or harassment if he were to return to China in the future.
The most recent example of discrimination which the applicant gave was that he was unable to obtain a marriage licence, and his [child]’s birth could not be registered on their hukou without the applicant paying a bribe. According to the information the applicant submitted with his application, he met his wife in 1996, married and had two [children], who were born in [year] and [year]. The Tribunal considers there is insufficient evidence to support the applicant’s claim about the difficulties he had in obtaining a marriage licence or registering his son, or that such difficulties were the result of the applicant’s association with his grandfather. The applicant stated that he made enquiries about his marriage licence, but wasn’t given a good reason for the difficulties. There is no evidence to indicate that such difficulties, if they did occur, were the result of the applicant’s association with his grandfather or because of his religious practice. In any case, the applicant’s youngest [child] was born [number] years ago, and the Tribunal does not consider that any difficulty the applicant had in registering him on his hukou registration to be evidence that the applicant would experience discrimination or harassment if he were to return to China in the future.
The Tribunal considers the applicant has not provided any evidence of any recent discrimination which he has experienced as a result of his association with his grandfather or directly because of his religious practice, other than his claim that he was arrested in January 2016. The Tribunal also notes the country information indicates that Catholics in general face a low risk of societal discrimination in China, and finds it unlikely that the applicant would face discrimination in Fujian, which has historically practiced a greater level of religious freedom, because of his religious practice.
Does the applicant have a well-founded fear of persecution if he returns to China?
I have found that the applicant is a member of the Catholic faith and is likely to practice his faith in an underground Catholic Church on his return to China. I have however found, based on the recently updated country information, the applicant’s evidence that he was not charged, and his ability to depart China without incident, with his own passport, that it is highly remote that the activities he described in practicing his faith would attract the interest of police authorities in China. The applicant claims that if he returns to China and practices his faith or organises activities of his church he will be arrested. On the country information that is available, I find that if the applicant returns to China, he would be able to attend services in an unregistered Catholic Church as he did when he was in China, and would be able to conduct the church-related activities which he claims he conducted, such as holding private small gatherings of Bible study for four to eight people, without attracting adverse attention from authorities.
The applicant lived in Fujian prior to coming to Australia, and his family, including his wife, children and parents, remain there. The country information indicates that there are numerous house or underground churches in Fujian, and that people in Fujian are able to practice religion freely within state-sanctioned boundaries, so long as their activity is not seen as challenging the authority of the Chinese Communist Party. From the applicant’s evidence, there is little to suggest that the kind of worship that he engaged in would challenge such authority. The applicant confirmed the purpose of the gathering he claims he organised was for prayer. He has not given evidence that these gatherings had any political or activist element.
While the applicant claims that his grandfather came under scrutiny of local authorities because he was the church leader within the village, the Tribunal does not find that the applicant occupied a position of leadership within his church. In his statement he claims that when he was arrested in January 2016 the police told him they did not want him to follow in his grandfather’s footsteps. There is however insufficient evidence to suggest the applicant had taken on a leadership role in the church or a role which was likely to bring him to the attention of local authorities.
On his own evidence the applicant did not attend church often after his grandfather’s passing away in 1998, until the incident he described with his [vehicle], which occurred in 2014. When asked about his involvement with the church he stated that he did a little bit more than other members and sometimes did some organising with someone else. Apart from his evidence about organising the Bible study group, when asked whether he conducted any preaching or converting of others, he stated that he did not, and explained this was because of his education level and his level of understanding of the Bible. Even if the Tribunal accepts the applicant’s evidence that he did a bit more than others and sometimes organised things with someone else, this is insufficient to indicate the applicant was a church leader.
On the applicant’s own evidence he was not charged with an offence and does not have a criminal conviction. He gave evidence that he departed China on a passport issued in his own name. As noted above, the country information indicates that the security monitoring capabilities at China’s major airports are comprehensive. The Tribunal considers that the lack of incident when the applicant departed China on his own passport indicates that he was not a person of interest to Chinese authorities. Given the Tribunal’s findings that the applicant was not a leader in his unregistered church in China, the Tribunal considers he is unlikely to be of interest to Chinese authorities.
The Tribunal has also considered whether the applicant may seek to take a greater leadership role in his church, following his involvement in the Catholic Church in Australia. The applicant stated at the hearing that he does not wish to be an ordinary member and wishes to serve the Church as though it is his work. According to the documentary evidence submitted by the applicant, the applicant has attended church in Australia since April 2016, actively participated in group activities and volunteered. The applicant explained in his evidence that the group he volunteers with is responsible for the housekeeping of the church, and providing things to greet the members of the congregation. While the references provided indicate the applicant has become a valued member of his church community in Australia, the Tribunal does not consider the evidence of his volunteer work with his church indicates he has taken a leadership role within the church. Rather, the applicant’s volunteer work is as one member of the group of volunteers who are responsible for assisting with housekeeping and with the distribution of reading material prior to services.

100. The Tribunal also notes the reasons the applicant gave as to why he was not involved in preaching or proselytising while he was in China, which included he was busy working, as well as his concerns about his education level and understanding of the Bible. The Tribunal considers that, based on the applicant’s history of his involvement with his unregistered church in China and his stated reasons for not having been more involved in leadership activities in the past, it is unlikely he would take a greater leadership role within the church as a result of his involvement with his current church community in Australia.
101. The Tribunal has considered the applicant’s claim that small meetings of unregistered church groups are not allowed and need to be approved first. While the country information indicates that there has been some tightening of both the activities of registered and unregistered churches in China in recent years, the country information indicates that unregistered churches can conduct their activities with little attention from the authorities unless their activities are regarded to challenge the Chinese Communist Party. The applicant confirmed at the hearing that the Bible studies group was for the purpose of prayer and did not have a political or activist element, and therefore, on the basis of the recently updated country information, the Tribunal rejects the applicant’s claim that the type of small meetings he claims he organised are not allowed.
102. Having considered the country information, the Tribunal is not satisfied that the applicant has any history of activism of criticism of the government, and does not hold a position of leadership within his congregation or have an adverse profile with the authorities, or will face a real chance of serious harm for reasons of his religion upon return in the reasonably foreseeable future. It accepts that the applicant may be encouraged or pressured to join a State-sanctioned Catholic Church, however the Tribunal does not accept that such a consequence amounts to serious harm in the sense contemplated by s.5J(5) of the Act.
103. Therefore, I find that there is no real chance that the applicant will be harassed, detained or otherwise harmed by the authorities or anyone else for reasons of any practice of his religion, either now or in the reasonably foreseeable future.
104. 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).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?
105. 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).
106. In MIAC v SZQRB[6] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
107. For the same reasons given above, the Tribunal accepts that the applicant attended an underground Catholic church in China prior to coming to Australia, but does not accept that he is of adverse attention to the authorities because of his religious activity or involvement in gatherings (including a small Bible study group) prior to his arrival in Australia. The Tribunal accepts the applicant has attended a Catholic church in Australia since April 2016 and volunteers in church-related activities. As a result of this, as well as his stated views on there being only one Catholic Church, and his family history of worshipping in an unregistered church, the Tribunal accepts the applicant is likely to participate in an unregistered Catholic church upon his return to China.
108. For the same reasons expressed above regarding whether the applicant faces a real chance of serious harm upon return to China, the Tribunal is not satisfied that there is a real risk the applicant will be harassed, detained or significantly harmed in any way by the authorities or anyone else, now or in the reasonably foreseeable future.
109. The applicant did not claim that he faced a risk of harm for any other reason or on any other basis on return to China other than the claims covered above, and on the information before me I find that there is not any other basis for a risk of harm to the applicant on return to Fujian, China.
110. Therefore, I find that there is no real risk that the applicant will be significantly harmed by the authorities or anyone else, if he is returned from Australia to China, now or in the reasonably foreseeable future.
111. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
112. 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 the criterion in s.36(2).
DECISION
113. The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
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 346

10 February 2020

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