1700122 (Refugee)

1700122 (Refugee) [2021] AATA 3818 (15 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700122
COUNTRY OF REFERENCE:                   China
MEMBER:Frank Russo
DATE:15 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 July 2021 at 11:31am
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – member of group of small business owners protesting against expropriation of properties by local government – arrested, detained and tortured – ongoing police harassment and social pressure – religion – Christianity – member of Local Church – friend’s sister arrested but no persecution or harm to applicant – credibility – adverse information and inconsistent evidence – fraudulently altered passports, visa application for another country and travel to other countries – departure on own passport without difficulty – low-level church knowledge and activity – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(6), 36(2), 65, 424A, 424AA, 438
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
MZAFZ v MIBP [2016] FCA 1081
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 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 14 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 31 March 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal in person on 24 May 2021 to give evidence and present arguments in relation to his claims. Following the applicant giving his evidence, the Tribunal indicated that the scheduled time for the hearing had been reached, but it had not yet concluded the hearing as it had yet to put the relevant country information to him and put any concerns about his claims or evidence to him. The Tribunal indicated that it intended to adjourn the hearing and put to the applicant and his representative whether they would have any concerns with the adjourned hearing being held by way of video conference or by telephone, in accordance with special measures introduced by the Tribunal in response to the COVID-19 pandemic[1]. The applicant and his representative indicated they had no objections.
[1] COVID-19 Special Measures Practice Direction – Migration and Refugee Division, 2 March 2021.
The applicant attended a resumed hearing by way of telephone on 15 June 2021.
The applicant was represented in relation to his application for review by a legal practitioner in the State of New South Wales, who attended the first hearing in person and attended the second hearing by telephone.
The hearings were conducted with the assistance of interpreters in the Mandarin and English languages.
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 he will suffer significant harm.
The applicant provided with his application for review, a copy of the decision of the delegate. The applicant provided responses to the hearing invitations, and on 2 March 2021 he provided the following documents:
a.Supporting letter from [Ms A], together with English translation;
b.Supporting letter from [Mr B], together with English translation;
c.Supporting letter from [Mr C], together with English translation; and
d.Screenshots from a mobile phone screen, with the file name saved as ‘Evidence that the applicant attends on-line gatherings of the Local Church during COVID-19 pandemic’.
On 31 May 2021 the applicant provided the Tribunal with a response to an invitation to the second hearing, as well as a statutory declaration dated 30 May 2021, provided in response to a s.424A invitation sent by the Tribunal on 26 May 2021.
The Tribunal also has a copy of the Department file (File [no.]) and has had regard to the documents on that file. In particular, the Tribunal has had regard a submission of documents provided by the applicant to the Department on 28 September 2016, which included the following documents:
a.Three photographs described as being of the applicant’s church activities in Australia;
b.Supporting letters from [D], [E], [F], [G] and [H], together with certified English translations.
The Tribunal also has a copy of the Department file for the applicant’s Visitor visa application, lodged on 28 December 2015 (File [No.]), a copy of which was provided by the Department. This file contains a copy of the applicant’s Visitor visa application and documents provided in support of that application. The Tribunal put the particulars of information from this file to the applicant at the first hearing, using the process set out in s.424AA of the Act, and then subsequently put them to him again in writing using the process set out in s.424A of the Act. The documents provided by the applicant to the Department include an Incoming passenger card to Australia, as well as the following attachments to his Visitor visa application:
a.National ID card
b.Extract from Chinese passport issued [in] 2015, indicating the applicant was born in Shanghai and the passport issued in Shanghai, passport [no. 1], including photograph pages and observations page;
c.Full copy of Chinese passport issued [in] 2007, indicating the applicant was born in Shanghai and the passport issued in Shanghai, passport [no. 2], including various visas and entry and exit stamps; and
d.Marriage certificate;
e.Certificate of employment from the [Employer], together with English translation;
f.Shanghai Certificate of Real Estate Ownership;
g.Hukou registration; and
h.Bank Statement.
The Tribunal has had regard to the above documents. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims
Claims made with visa application
In a statement attached to his Protection visa application, the applicant makes the following claims:
a.That he was born on [Date 1] in [Village 1], [Town], Fuqing City, Fujian Province, China. He married his wife, [Ms I], in March 2002 and that his [first child] was born in [Month, Year 2]. His [second child] was born in [Month, Year 3];
b.In May 2005, he and [Mr J], a relative who had worked as [an Occupation 1] for many years, persuaded him to open a [Business 1] together in [Town]. He claims that they operated the [Business 1] for the next 6 years;
c.In June 2011, the [Business 1] was expropriated by the [Township] Government as part of a series of transformation projects involving the old town. He claims that the government failed to provide sufficient compensation, and that he lost money he had invested in the [Business 1], including life savings from his father. He claims that ‘In order to protect our properties’, [Mr J] organised a ‘protection team’. He claims that he was [Mr J]’s assistant and that there were 20-30 people in the team, all of whom had properties or businesses which were under threat;
d.On [Day 1] June 2011 the [Township] Government and construction workers, supported by police, came to demolish their properties and businesses. He claims that he and [Mr J] led their protection team in resisting the demolition and protecting their properties. He claims that both he and [Mr J] were accused of obstructing the township officials from lawfully executing their duties, as well as harming public security, and they were both arrested;
e.He was detained in a detention cell at [Town] Police Station from [Day 1] to [Day 2] June 2011. During this period, he was subjected to inhumane treatment, including torture with water, electricity, strong light and other methods. [Mr J] was regarded as the leader and was transferred to the detention centre in Fuqing and sentenced to 6 months re-education through labour;
f.Although he was released from [Town] Police Station, he was often harassed by police, as he was regarded as a trouble maker. He found it difficult to find a stable job due to his bad record and he suffered from ‘great social pressures’;
g.In November 2011 he went to live in Wugong County, Xianyang City, Shaanxi Province, where a man named [Mr K], who had originally lived in the same village as the applicant, had opened [a Business 2] on [Address 1]. He claims that he was employed at the [Business 2], [doing a job task], and later on provided [services] for local residents;
h.He claims that he also lived at the [Business 2], where he lived in the same room as [Mr L], who was also from [Town]. He claims that [Mr L] was a devout Christian and member of the Local Church, and through him he converted to Christianity;
i.In January 2012 he went back to his hometown in Fujian with [Mr L] for the Chinese New Year holiday, and on 29 January 2012 [Mr L] arranged for him to be baptised at a church brother’s home. Since then he has been a genuine Christian and member of the Local Church;
j.From 2012 to 2015 he assisted [Mr L] to establish and develop secret meeting groups of the Local Church in Wugong County. If they returned to their hometown in Fujian, they would transport back copies of the Recovery Version of the Bible. He also took opportunities to secretly evangelise to local residents when he provided [services], and would distribute copies of the Recovery Version of the Bible to them;
k.In November 2015, [Mr L]’s younger sister, [Ms M], was arrested by Jianying City Public Security Bureau (PSB) as she was transporting copies of the Recovery Bible to Jianyang City. [Mr L] suggested that the applicant prepare for the worst, in case [Ms M] gave confessions to the police, which would put the applicant in danger because of his role in distributing the bibles;
l.In December 2015 the applicant went to Shanghai, as his relative [Mr J] worked there as [an Occupation 1] in a [Business 1]. [Mr J] had good relationships with travel agents, including [Mr N], and asked [Mr N] to organise an overseas trip for the applicant. On 10 January 2016 [Mr N] arranged for the applicant to leave China;
m.After he arrived in Australia, he learned that the Local Church in Xianying City and in Wugong County was completely destroyed by authorities, and that many Christians, including [Mr L], were arrested by the police. He claims that he learned that he was also listed by the PSB as ‘one of key members’ of an evil cult. If he returns to China he will be arrested and imprisoned; and
n.Since arriving in Australia he has attended the Local Church regularly and actively.
Department interview and delegate’s decision record
The applicant attended an interview with the Department on 28 September 2016. The delegate’s decision record indicates that at the interview, the applicant provided the following additional information:
a.He confirmed that he was able to depart China legally, using his genuinely issued passport, and that he had no difficulties passing through security checks or leaving China;
b.That everything in his application was true and correct and there was nothing that he wished to change;
c.His mother, brother, sister, wife, daughter and son all live together under the same roof in his family home in [Village 1], [Town], Fujian Province, and that he had last spoken to his family a few days before the interview;
d.After he left to come to Australia, the police came to talk to his family. Since then they have come to his house on a monthly basis to find him and ask members of his family to cooperate with them. He stated that the police asked where he is because he attended a Local Church and preached to other people;
e.He has been fearful since November 2015, when [Ms M] was arrested;
f.His [Business 1] was in [Address 2], [Town], and it had been forcefully taken by the government and he was not given compensation. He said the government gave no reason for taking away the land, and that they took the whole block. The applicant said that after the demolition the government would rebuild something, but he didn’t know what, because after it happened he ran away. When asked whether his family had told him what happened to the land, he stated that he does not know what happened to the land as he seldom has contact with his family. His family do not know what happened, as they live in the countryside, 8km away from the town;
g.The applicant stated he was arrested because he was an assistant in a team of 20 people who tried to stop the demolition of his and other properties. He tried to stop the demolition by there a few hours before they were arrested. All 20 of the protesters were arrested and taken to the police station to be interviewed;
h.He was tortured at [Town] Police Station by being beaten, and he was released after 15 days as he was only an assistant in the protest. He did not have to pay a bribe. 18 others were released. [Mr J] was treated as the leader of the protest and put into a detention centre and released at the end of 2011;
i.After this the applicant couldn’t find work because he had a bad police record. He went to Shaanxi Province, where he worked as [an Occupation 1] in [a Business 2] along with 10 other people, and there he met ‘[Mr LL, similar name to Mr L]’ (which the Tribunal understands to be a reference to [Mr L]), who introduced him to the Local Church. [Mr LL] preached to him, told him ‘the secret of the bible’ and that God created people to glorify himself. [Mr LL] would pray by himself and with his church brothers and sisters in his hometown, [Village 2] in Shixing Province. The applicant said he joined him in praying in [Village 2] and that [Mr LL] had given him a bible, and each time he went home between 2012 and 2015 he would take the bible with him and participate in church activities;
j.His wife is not a member of the Local Church as he did not have time to preach to her. His mother is a member of the Local Church and had been a member for 3 to 4 years prior to the interview. She became a member after being preached to and evangelised by a church sister of the village.;
k.He would often return to his home village with [Mr LL], bring his bible with him and preach and evangelise to customers who used his [services];
l.The applicant was asked how he got his passport. He stated he got it through the normal procedure and that he applied from the PSB in Fuqing City in 2014. When asked why he had applied for it, he stated it was because the police had come and harassed him, so he thought he might need it in future.;
m.The applicant asked ‘[Mr N]’, a friend of his relative to help him leave China after the arrest of [Ms M]. He was told on 9 January 2016 that he could leave for Australia on 10 January 2016. When asked whether he had applied to go to any other countries, he replied no;
n.He did not tell his wife he was leaving China because he was in a hurry, and did not apply for her to join him because he was in Shanghai and she was in her hometown; and
o.He believes he will be detained, arrested and imprisoned if he returns to China. All the members of the Local Church were arrested after he left China, and they are all still in prison. He would not be able to relocate to another part of China because the government will arrest him.
At the interview, the applicant was asked questions about his religious beliefs, and provided the following information:
a.He has read the Bible, and the version he has read is a Recovery bible. When asked whether this version of the bible contains the Old and New Testaments, the applicant’s response was vague, initially stating that it does not contain the New Testament, and when asked why, he stated that he had the Recovery version, and only the ‘normal’ version contained both the Old and New Testaments. In response to further questioning, he confirmed his version of the Recovery Bible contained only the Old Testament, but again after further questioning, he stated it contained both the Old and New Testaments;
b.He was able to state that the Old Testament contains Genesis and the New Testament contains John, Mark, Luke and Matthew, but when asked when the New Testament starts, stated that he didn’t remember;
c.He believes in the creator God, who created man and the trinity;
d.When asked about his favourite book in the Bible, he stated it was the parable about planting the seed in the ground, and explained the different outcomes for the seeds, depending on where they landed, and that the parable was told by Jesus. He stated that he also liked the parable of the thief in the night. He said he did not remember what book the parables came from. When asked if he remembered any books or chapters in the Bible, he said he didn’t remember;
e.As to his practice of religion in Australia, he stated that every week he participates in a group meeting at a meeting hall, and provided a handwritten address in [Suburb 1], and stated that he sometimes studies at a friend’s house in the evening. He confirmed that the photographs at folios 84-86 of the Department file are of the premises in [Suburb 1]. He stated that a church brother takes him to [Suburb 1] every week by car.
f.He stated that he had last attended the hall at [Suburb 1] the Sunday prior to the interview. When asked what the sermon was that day, he replied that they just read the Bible and sang hymns. When asked what hymns he sang, he stated that no-one talks or preaches, and that they all do individual study and read the Bible. When asked what part of the Bible he read, he stated that he didn’t remember, but everyone takes it in turns to read a paragraph. When asked what hymns he sings, he stated that he couldn’t say what pages they are on, that he just sings for God. When asked what actual words he sings, he stated that he couldn’t say because he sings in Mandarin. When explained that the Mandarin interpreter could translate, he stated that he can’t remember any words, that they just open the book and start singing the words on the page. He confirmed that he could not remember any hymns he sings;

The Department officer put to the applicant adverse information that he had applied for a visa to [Country 1] prior to coming to Australia. The officer put to him that such actions may indicate that he had applied for the protection visa for reasons other than his protection claims, and that his claims were not credible. The applicant responded that his application documents were true. After a break, and after consulting with his representative, the applicant again stated that he had not applied for a visa to [Country 1].
The delegate found that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s.36(2) of the Act. The delegate found the applicant was not credible in his claims that he was arrested for protesting against a lack of compensation after his business was demolished, as well as in respect of his claims to be an adherent of the Local Church, to be a practicing Christian and to have preached and evangelised in China. The delegate’s concerns regarding the credibility of the applicant’s claims included:
a.Google images of the street where the applicant claims his business was located do not indicate an entire block had been demolished and rebuilt since 2011, or that there were any new constructions in the area on such a large scale;
b.The delegate found it difficult to accept that the applicant and his family do not know what has happened to the block which was demolished, noting also that the applicant gave testimony that he had returned to his hometown numerous times to work and evangelise. The delegate accordingly didn’t accept that the applicant had acted as an ‘assistant’ in the protest regarding the demolition of the block, or that he had been arrested, detained or tortured, or that he had a bad police record as a result of this;
c.The delegate found the applicant’s claims regarding evangelising in China to be unconvincing; and
d.The delegate found the applicant’s knowledge of the Bible to be vague, sparse and hesitant, and found his claim to attend a Local Church in [Suburb 1] on a weekly basis to be doubtful, and his lack of knowledge about hymns was not consistent with someone who had attended church on a weekly basis for at least one year.
The delegate was also concerned that the applicant had provided false information at the interview when he stated that he had never applied for a visa to another country before coming to Australia.
Based on the applicant’s answers at the interview, the delegate was not of the view that the applicant is a genuine Christian. For the same reasons, the delegate did not find that the applicant was owed complementary protection.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that he remembered making the Protection visa application and that he was assisted by his legal representative. The applicant stated that he was aware of the contents of the application form and the statement attached to the application, which were read back to him. He confirmed that the contents of the application are true and correct. He confirmed that he did not wish to make any changes to his application form or add to the claims which he had made.
Evidence regarding the applicant’s background
The applicant gave evidence that he is a citizen of China. He stated that he does not have a right to enter and reside in any other countries.
When asked whether he had travelled anywhere apart from Australia, the applicant hesitated before answering that after he arrived in Australia he stayed here. When asked whether he had ever applied for a visa to another country besides Australia, the applicant stated no.
The applicant gave evidence that the most recent place he lived in China was in Wugong County, Xianyang City, Shaanxi Province, and that he had lived there for more than three years. Prior to that he lived in [Village 1], [Town], Fuqing City in Fujian Province for his entire life. He confirmed that this was his hukou and that he had not had any other addresses in China.
The applicant stated that he married [Ms I] [in] March 2002, and that his wife lives with his mother. He sated that he has two children, [Child 1], who was born on [Date 2], and [Child 2], who was born [Date 3]. He has [siblings], all of whom live in [Village 1], as do his wife, children and mother.
The applicant stated that he finished junior high school in [Year]. Following this he worked as [an Occupation 2] ‘for [work projects]’, which he did for about 12 years. Following this he opened a [Business 1] in [Town], the name of which translates as ‘[Translation of business name]’, which he ran for five to six years. Following this he moved to Wugong County in Shaanxi province, where he worked as [an Occupation 1] in [a Business 2] run by a friend of his. He claimed that he learned how to [do a job task] in his [Business 1]. After that he ‘worked on [facilities]’ in villages near Wugong County.
The applicant gave evidence that he arrived in Australia [in] January 2016, that he arrived by plane, having departed China from Changle Airport in Fuzhou. He stated that he travelled on his own passport. When asked whether the passport he used was the first passport he had held, he stated that it is his second passport. He confirmed that he did not have any difficulties in leaving China.
The applicant arrived in Australia holding a Tourist visa, which he stated was organised by [Mr N], who works in a travel agency, and is friends with a relative of his named [Mr J].
As to why he came to Australia, the applicant stated it was because one of his friends in China, [Ms M], was arrested. He stated that if the government interrogated her and she gave names, he would be in trouble, and so he wished to leave China as soon as possible. When asked how much he paid to come to Australia, he stated he thinks he paid 50,000 to 60,000 Yuan, which included his visa and air ticket, and which his representative indicated was approximately $10,000 AUD. When asked where he got the money from, the applicant stated that he had a [Business 1] and had some savings from that, and in the years after that he also saved some money from working in the [Business 2].
Applicant’s claims for protection
The Tribunal noted that the applicant’s claims in his application were that he was the part-owner of a [Business 1] which was expropriated by government authorities for demolition and he was not properly compensated, and as a result he was involved in protest activities and was arrested. Secondly, that in China he was an adherent of the Local Church, that the persons he knew from his church have been arrested and the church has been destroyed, and that he has been listed by the police as a key member of an evil cult. The applicant confirmed that this was correct.
Applicant’s evidence regarding property expropriation and protest activities
When asked the address of the property that was expropriated and demolished, the applicant stated it was at [Address 3], and that it was where the [Town] Government was located. He stated that he bought the property in 2005 with his relative, [Mr J], and ran a [Business 1] on the premises. He stated that the expropriation occurred in June 2011 and it involved the whole street. When asked which government did this, he stated the [Town] Government, but stated that the town government might have been executing orders from Fuqing City and that they didn’t know. When asked the purpose for the expropriation, he stated that at the time they had no idea, and the government just stated that it needed the whole street for the government.
When asked if the building has been demolished, the applicant stated that it has been demolished and rebuilt. He stated he does not know the exact time it was demolished, but the government started the process in June 2011 and they did not get any compensation money at all, and they were arrested, so after that they ‘ran away from that place.’ When asked what is on the land now, the applicant stated that he was not too sure, that there are new buildings and he thinks there are shops, which are all owned by the government.
When asked what information he was provided about the proposed expropriation and demolition, the applicant stated that before that they came to negotiate with them the government said they could offer reasonable compensation, but what was offered was not reasonable. When asked how much compensation was offered, he stated they were willing to offer 60,000 to 70,000 Yuan. He stated that together he and [Mr J] paid 1,100,000 Yuan for the [Business 1]. When asked what information he received about the offer, the applicant stated it was only an oral offer, ‘and we disagreed with this offer, so they started demolishing.’ He confirmed that he was not paid any compensation because they disagreed with the offer and because [Mr J] had organised a team of people to protest. He stated that people were arrested and they got no compensation.
When asked whether he had made any complaints about the compensation that was offered, he responded, ‘We just didn’t agree.’ When asked if there were any reasons why no complaints were made, he stated that they were not aware of any avenues for complaint. He stated that he could only go to the government to complain, but they were the ones responsible for the proposal.
When asked what protest activities he engaged in, the applicant stated that [Mr J] organised a ‘self-defence team’. When the demolition started in June 2011, they went to the scene and stood there. They had more than 20 people and they protested for about 2 hours, and the government sent police, and he, [Mr J] ‘and several other leaders’ were taken to the police station. He stated that he was imprisoned for 15 days. He stated that before he was arrested, he saw about 7 to 8 people being taken by the police and that more police were coming, so he does not know what happened after that.
When asked if he was charged or convicted of anything, he stated that [Mr J] was charged with being an anti-government activist, but in relation to him ‘they had nothing. Just helper to [Mr J].’
When asked whether he experienced any harm while imprisoned, he stated that they punched him, poured water on his body, used strong light and kept beating him. He stated that they used all sorts of torture. He stated that they pushed his head underwater and they used an ‘electric tool’ on his body.
As to why he was released, the applicant stated it was because he was defined as a helper to an anti-government activist, so he was able to be released. He stated that [Mr J] was sent to the Fuqing Detention Centre and was sentenced to about half a year of imprisonment. When asked whether any requirements were placed on him after he was released, the applicant responded that at first there were no restrictions as the land had been taken, but he was still harassed and that police came to his house. When asked how often they came, he stated it was hard to tell and that it was likely to be dependant on their mood. He stated that sometimes they came after a few days, sometimes after a month. When questioned if he was required to report to the police, he stated that he wasn’t. He stated that the land was taken ‘and the money taken’ and they had nowhere to complain ‘and that was it.’
When questioned whether anything else happened to him in China as a result of these events, the applicant stated no. When questioned what he believes would happen to him as a result of these events if he returns to China, the applicant responded, ‘I guess not’, then stated that he didn’t know and he didn’t think there would be any more consequences.
The applicant stated that after these events he was unemployed for a few months. He had a criminal record and when he applied for jobs, local employers did not want him. He then decided to move to Shaanxi Province, where he worked in [a Business 2] owned by a friend.
Claims regarding religion
The applicant confirmed that he was not raised with any religion and his parents did not go to church or express any religious views when he was growing up. He gave evidence that he started to identify as Christian when he moved to Shaanxi Province at the end of 2011. He stated that he lived with [Mr L], who was a Christian, and he was converted by him.
When asked how he practiced his faith in China, the applicant stated that they had gatherings at home, that they evangelised other people and they also prayed to God. He stated that he did not attend a church which resembled a church, and that they ‘just went to different homes.’ When asked whose homes, he stated that they were all villagers’ homes, and that they called each other brothers and sisters, but it has been too long and he didn’t remember the addresses. He claimed that his church was the Local Church and that they are called the Shouters.
The applicant stated that he attended services every week, and definitely on Sundays. When asked what happened during services, he stated that they read the Bible together, sang hymns and then prayed. When asked if anything else happened during services, he stated ‘that was about it’ and he repeated references to reading the Bible, praying and singing hymns, then said there was something else that he didn’t know how to describe. He stated that he didn’t attend any churches in Fujian, only in Shaanxi.
When questioned about what attracted him to Christianity and to the Local Church, the applicant stated that he believes it was because of the existence of God. He stated that there is a time for the followers of God to find God. The Tribunal noted this was a relatively philosophical response and questioned whether there were any reasons why he decided to become a Christian at that time. The applicant responded that he didn’t join the church at once, and that [Mr L] tried to convince him and wanted him to believe. He stated that he joined the church once he believed in the concept of spirit, soul and body.
When asked whether there were any particular prayers that he recited in services, the applicant stated that they had some prayers for the locals to pray to Jesus. When asked if he could recite one, he gave a hesitant response, stating that it ‘was something like, we pray to Jesus Christ to give us a clean soul and to free us from sins.’ The Tribunal asked whether people who attended the church would call out anything, and whether they would call out particular words repeatedly. The applicant stated that they would repeat words like Jesus Christ and Amen when praying and they would end with this. The Tribunal noted that the Local Church is given the name ‘the Shouters’ by the Chinese Government, and asked whether his church used that name. The applicant stated that it is not a name they gave themselves. He stated that they are the Local Church. When asked again whether there are any words that are commonly shouted out in church, the applicant stated that there is nothing special to shout out that he is aware of, ‘but if others give you a name, you can call it out.’
As to why he considers himself to be a Christian, the applicant stated that in January 2012 he and [Mr L] went back to their hometown, and on 29 January he was taken to a brother’s home and was baptised there. When asked what happened during the baptism, the applicant stated there was a pool for the baptism, that his whole body was immersed ‘and then it was done.’ He stated that he believes they prayed when they did this to him, but they didn’t say anything out loud. He stated that he believes they prayed in their hearts to God. When asked what baptism means to him and why it is significant, he stated that it means he truly believes in God and that he is a truthful Christian.
The applicant gave evidence that he did not do any preaching in China, but stated that he sent the gospel to others and evangelised them. When asked what he would say to others when he was evangelising them, he stated that he would just tell them about God, the Spirit, the soul and body, that you have to be filled with the Spirt, soul and body, that you need to believe in God, and at the time you will follow. He then stated that it is not that straightforward, and so he would tell people what God is like, and that God created humans to show his existence, and that when the heart is filled, God will come to save you.
The applicant confirmed that he had read the Bible. He confirmed that the Recovery Version of the Bible is used in his church. When asked if there are any parts of the Bible that attract him in particular, or that are important to him, he stated that every part is important and that different parts have their own functions and meanings. When asked how the Recovery Version of the Bible is different from other Christian Bibles, he stated there are differences between the Old and New Testament.
When asked whether he had ever read anything in the Old Testament, he stated that they read to believe in these things. When asked if he could tell the Tribunal about a story from the Old Testament, he mentioned Exodus. He stated that he got to know how God had taken people to leave ‘that land’ and ‘how he flied into Heaven and then how he came back to life’, and how he died on the cross. The Tribunal questioned whether Jesus’ death on the cross was in the Old or New Testament, to which the applicant responded it was in both. The Tribunal asked the applicant whether he knew who the famous biblical figure is who led the Israelites out of Egypt in Exodus. The applicant asked whether the Tribunal meant who the leader was. The Tribunal accepted that the person might be considered a leader, and asked the applicant if he could name the leader The applicant then responded that he thought it was God, Jesus Christ.
The Tribunal then noted that in Exodus, ‘the leader’ referred to climbs a mountain in the desert, and is given something important by God, and asked the applicant whether he knew what the leader was given. The applicant appeared confused at this point and whispered under his breath. After a long pause he responded that he did not remember. The Tribunal then asked the applicant whether he had heard of the Ten Commandments, to which the applicant responded he had heard talk about them, but he didn’t remember.
The applicant was asked whether he knows the Christmas story, to which he responded that he does not know the story. When asked whether he was able to tell the Tribunal anything about the birth of Jesus, he again appeared confused. During a long pause he whispered parts of the question to himself. He then stated that Jesus was ‘born by mother Maria’ and that he was born ‘somewhere Jewish.’ When asked if he could remember anything else, the applicant appeared to have a pained look on his face, as though he was straining to remember details. He then stated that Saint Maria gave birth to Jesus and that it ‘was like a miracle in terms of pregnancy, as the real father is not known.’ He mentioned that wise people had forecast Jesus’ birth in a certain place, and stated (as translated) ‘it was kind of Jewish land.’
The applicant stated that he currently attends church in Australia. He stated that he sometimes went to a church and sometimes to people’s homes for small-sized gatherings. When asked what denomination the church is, he stated that he attended a church in [Suburb 2] and then a church in [Suburb 3], but the names are in English, so he doesn’t know their names. When asked how long he attended the church in [Suburb 2], the applicant stated that since he came to Australia he has visited church every week, but each time he goes to different places. When asked whether there were any reasons why he attended these particular churches, he stated that there are no particular reasons and that there are also other places that he has attended. He stated that he doesn’t know the names, just the suburbs. When asked whether they were Local Churches or belonged to other churches, he stated that they were the Local Churches here. He stated that they have services in both English and Chinese.

When asked what happens during the services he attends, he stated that ‘they do the same thing’, they read and do some praying. The Tribunal asked whether services include any rituals where something is shared by the people in attendance, to which he responded that after praying they share some biscuits and water, which he said is the symbol of God’s blood.
When asked if he knows the name of any of the pastors or ministers in the Church, he stated that he knows someone’s surname, and that they call people by their surnames. He stated that the surnames are [O], [P] and [Q].
The Tribunal noted that the applicant had provided the Department and Tribunal with various letters from members of the Local Church. The Tribunal questioned why he had provided letters from other adherents, rather than persons who hold senior positions within the church. The applicant responded that these are his church friends who support him. He stated that he didn’t know whether he should contact the church leaders, and that there may be some activities that he may not have attended, and some activities may only be for some members, so he may not have made much of an impression on them.
The applicant stated that he had last attended church the day before the hearing. When asked what Bible reading they had, the applicant struggled to remember. He stated that he didn’t know what page they read. The applicant then stated it was the Parable of Heaven, from the gospel of Matthew.
The applicant stated that he has not been baptised in Australia. When asked if there was a reason why, he stated it is because you only need to be baptised once to be a Christian. He stated that he had never heard of anyone being baptised more than one time.
When asked if there is a reason why he is a member of the Local Church and not one of the officially recognised churches in China, he stated it is because ‘we’ truly believe in God and that they are the true followers of God. When asked how the Local Church is different from other Christian churches, he stated that everyone thinks the church they attend is the right one. When questioned further about why he is an adherent of the Local Church, he stated it is because he only believes in God, and that God created us for him. He stated that he doesn’t care about other churches and he has never been to other churches.
As to the reasons why he fears returning to China, the applicant stated that a church friend of his was arrested and the Local Church is classified as an evil cult, and he is worried that she might have given names to the government in Xianyang City, and if he goes back he might be arrested, be imprisoned and face other serious punishments.
The applicant confirmed in this evidence that he did not experience any incidents and was not persecuted or otherwise harmed as a result of his religious practices or beliefs prior to leaving China, but he claims that the brothers and sisters of his church experienced such persecution and his church has been classified by the Chinese government as an evil cult.
As to the incident where his friend was arrested, he stated that her name was [Ms M]. When asked where she was arrested, the applicant stated that she was working in the street in Xianyang City. He stated that she took some Recovery Bibles with her and was about to give them to some others. He stated that she got them from Fuqing City and brought some to Xianyang City. She was arrested in November 2015. When asked if she is still in prison, he stated that he thinks so, as he hadn’t heard anything about her release.
He stated that after [Ms M] was imprisoned, her brother, [Mr L], worked with another person to see if he had connections to free his sister. [Mr L] also reminded the applicant to be more cautious, as he had been quite active in the Local Church and had been evangelising other people. He told the Tribunal that if [Ms M] gave any names to the police he might be in trouble. When asked what he meant by ‘quite active’ in the Local Church, he stated that he had a very close connection to [Ms M] and he had a lot to do with organising services and he sent Recovery Bibles to others. When asked where he obtained the Recovery bibles from, he stated that it was from [Town] in Fuqing City, that they went to a church brother’s home, where they have many recovery bibles.
The Tribunal noted that in his written claims, the applicant stated that he had been blacklisted as a member of an evil cult, and questioned why he believed this to be the case. The applicant responded that [Ms M] was arrested as she was in what the government classified to be an evil cult. After he came to Australia, many people were arrested, so he was definitely blacklisted. When asked whether he knew who was arrested, he stated that he thinks 10 to 20 people were arrested from the Local Church, though he didn’t have contact with them all.
When asked whether anything else had happened to him in China that he had not yet told the Tribunal about, the applicant responded that ‘This reason is serious enough’. He did not provide details of any other events or incidents. The applicant also confirmed that there were no other reasons why he does not wish to return to China and there was nothing else about his religious practice that he wished to tell the Tribunal.
Non-disclosure certificate
The Tribunal advised the applicant that the Department file contained a non-disclosure certificate issued under s.438 of the Act by a delegate of the Minister for Immigration and Border Protection on 9 January 2017, relating to a document contained at folio 73 of the Department file. The Tribunal noted that the certificate states that it would be contrary to the public interest for the Tribunal to disclose the material because the folio that it relates to contains information which relates to an internal working document and business affairs of the Department.
The Tribunal noted at the hearing that it had considered the certificate and did not consider it valid, but nevertheless invited the applicant and his representative to make any submissions regarding the certificate’s validity. No comments or submissions were received in relation to this issue from either the applicant or his representative.
This certificate is invalid and of no effect because the fact that the folio contains information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed. In MZAFZ v MIBP,[2] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure.
[2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).
The Tribunal put the particulars from the document at folio 73 to the applicant, using the procedure contained in s.424AA of the Act, after first explaining to the applicant that the information could be the reason, or part of the reason for finding that he does not meet the criteria for a refugee or for complementary protection, and for affirming the decision under review. The Tribunal explained that the document is an internal document of the Department, containing the results of data matching with other countries, in this case with [Country 1]. The Tribunal explained that the information indicates that the applicant personally attended the [Country 1] Embassy in Guangzhou [in] October 2015, and that while he was there, his fingerprint and facial biometric data were acquired. The Tribunal noted that the delegate’s decision also referred to this information, although not to the source document. The Tribunal put to the applicant that this information may indicate that he had applied for a visa to another country prior to [Ms M]’s arrest in November 2015, which may raise doubts about his stated reasons for coming to Australia.
When asked whether he wished to comment or respond to the information at the hearing or request further time to comment or respond, the applicant chose to respond. He stated that the record may be true, but he didn’t attend the [Country 1] embassy for this purpose. The Tribunal asked whether he had attended the [Country 1] Consulate in Guangzhou. The applicant stated that he was fingerprinted in Shanghai. He stated that he did not apply for the visa personally and he does not know how ‘they’ applied for the visa. The Tribunal put to the applicant that this is different from the information contained in the document, which indicates that he was fingerprinted and provided his facial biometric data at the consulate. The applicant stated that the fact is he did not go to the [Country 1] embassy. He stated that he had nothing else to say about this.
Section 424A letter – application for visa to [Country 1]
Following the first hearing, on 26 May 2021 the Tribunal wrote to the applicant to provide him with a copy of the non-disclosure certificate and to put the above information to him in writing, using the procedure contained in s.424A of the Act. In its letter, the Tribunal set out the following particulars of the information:
Internal working document of the Department of Immigration which contains data sharing information through [an international visa/immigration] match, in this case with data shared with [Country 1]. The document contains information which indicates that you attended the [Country 1] embassy in Guangzhou, China, where you were fingerprinted and your facial biometric data was acquired. The abbreviation ‘GUZ’ is recorded as the location where you were fingerprinted. The date you were fingerprinted is recorded as [October] 2015. The reason why you were fingerprinted is recorded as ‘VISA APPLICANT’.
The Tribunal provided the applicant until 9 June 2021 to respond to the adverse information. The applicant responded on 30 May 2021 by providing a statutory declaration.
In his statutory declaration of 30 May 2021, the applicant acknowledged that the Tribunal had formed an initial view that the non-disclosure certificate may not have been validly made, but did not otherwise provide any submissions or arguments about this.
In relation to the information which was the subject of the non-disclosure certificate, the applicant provided the following responses:
a.After the Tribunal hearing on 24 May 2021 he contacted his ‘friend in China’ and was reminded that his friend helped him to apply for a visa to [Country 1] from the [Country 1] Consulate-General in Guangzhou after he learned about his active involvement in the Local Church;
b.The visa application to [Country 1] was unsuccessful;
c.He recalled that his fingerprint and facial biometric data were taken at the [Country 1] in Guangzhou; and
d.He does not think that this experience is inconsistent with his evidence of going to Shanghai in November 2015. He states that he went to Shanghai because [Ms M] was arrested by the PSB in November 2015, and he was in danger because of the active role he had played in the Local Church and because of his close contact with [Ms M]. He then had to organise his trip overseas through his relative, [Mr J], and his friend, [Mr N].
Adverse information from applicant’s Visitor visa application file
The Tribunal informed the applicant that the Department had provided a copy of the Department file for his Visitor visa application, which was lodged on 28 December 2015, and which contains potentially adverse information, which the Tribunal would also put to the applicant using the procedure set out in s.424AA of the Act. The Tribunal put to the applicant that this file contained the following relevant information:
a.A copy of the applicant’s incoming passenger card for Australia, in which the applicant declared that his intended length of stay in Australia was 10 days, and that he was arriving for the purpose of a holiday;
b.Application for a Visitor Visa – Tourist Stream, which states the applicant’s place of birth is Shanghai, that he lived at [Address 4], Shanghai, that his wife is named [Ms R, different name than Ms I] and she would be travelling with him, that he has a [child] named [Child 3, different name than Child 1 or 2], who was born in [Month, Year 4, different month and year than 2 or 3], lives in Shanghai and would not be travelling with him. At question 38, the applicant ticked ‘No’ to questions regarding whether he had ever been charged with any offence that is currently awaiting legal action and whether he had been convicted of an offence in any country (including any convictions which have now been removed from official records), and whether he had been subject of an arrest warrant or interpol notice. The form indicates that he was employed as [an Occupation 3] by [Employer] in Shanghai for the previous 6 years. He ticked a box at question 43, declaring that he had not received any assistance in completing the form. At question 47, he ticked a box to indicate that written communication about the application should be sent to him;
c.His Visitor visa application was accompanied by a copy of his Chinese passport, which has the same passport number as that provided with his Protection visa application, except it records Shanghai, not Fujian, as his place of birth and the place of issue;
d.His Visitor visa application was accompanied by an earlier Chinese passport, issued [in] 2007 and due to expire [in] 2017, which also stated that his place of birth and the place of issue of the passport were Shanghai. This passport contains the following visa and travel information:
i.Visa issued for the Schengen States from [August] 2008;
ii.Arrival stamp for [City, Country 2] Airport dated [Day 1] September 2008 and departure stamp dated [Day 2] September 2008;
iii.A second visa for the Schengen States, issued from [March] 2010;
iv.Arrival and departure stamps for [City, Country 2] Airport, where the dates are not clearly legible;
v.Visa on arrival for [Country 3], and an arrival stamp dated [October] 2012;
vi.Arrival stamp for [City] Airport, [Country 4], dated [September] 2013, and departure stamp dated [October] 2013; and
vii.Visa for [Country 1], issued [in] April 2015 and expiring [in] April 2025. The visa type is [Visa type], which is a temporary visa for business and tourism;
e.Copies of other supporting documents provided with his Visitor visa application, including certificate of employment from his [employer], a certificate of marriage and a certificate of real estate ownership for property in Shanghai.
The Tribunal indicated that the information is relevant because it contains different personal details from those provided by the applicant in his Protection visa application and in his evidence before the Tribunal. The Tribunal put to the applicant that the information suggests he may have provided false information to the Department about his personal details, including his place of birth, family composition, place and type of employment and whether he had previously travelled to other countries. The Tribunal put to the applicant that the information may also suggest that he has applied for visas to a range of other countries, as well as travelled to other countries, which may suggest that he does not have a genuine fear of returning to China, may raise concerns about the credibility of his evidence, as well as of his accounts of what happened to him in China.
The Tribunal advised that if it relies on this information, it could be the reason or part of the reason for the Tribunal finding that he does not meet the criteria for a refugee or for complementary protection and for affirming the decision of the Department. The Tribunal invited the applicant to comment or respond to the information and also indicated that he may seek additional time to comment or respond to the information if needed.
The applicant responded by pointing out that there is a conflict in the information about whether he has applied for or been granted a visa to [Country 1]. He stated that on the information put to him by the Tribunal, he was granted a visa to [Country 1], and he put to the Tribunal a question as to why he would then attend [Country 1] embassy to obtain a visa to [Country 1] if he had already been granted a visa. He stated that he has many questions and he doubts whether the information is true. The applicant questioned why, if all of this information can be tracked and compared, the mistake would have been made in the first place to issue him with a visa. The Tribunal informed the applicant that this was a question better put to the Department, however the Tribunal has this potentially adverse information before it, and was providing him with an opportunity to comment or respond to the information before making any findings in relation to it.
The applicant then referred to the information indicating he had travelled to a number of countries. He questioned whether this information is from the Chinese entry and exit administration and stated that he did not go to those places. He stated that as for the discrepancies in his family information, he had someone arrange the visa information for him.
The Tribunal again questioned whether the applicant has been to any countries other than Australia, to which he responded no. He again stated that he has not applied for a visa to any countries other than Australia. He stated that he was not born in Shanghai. When asked how his Visitor visa application was prepared, he stated that he went to Shanghai and had someone apply for the visa for him as soon as possible. The Tribunal questioned whether the applicant had prepared any documents for the visa application, such as the attachments. He stated that he had not signed the Visitor visa application himself. The Tribunal put to the applicant that the marriage certificate shows a photograph of the applicant with a woman, which would indicate that he played a role in supplying documents for the Visitor visa application. The applicant stated that he didn’t know where this had come from.
As noted above, on 26 May 2021 the Tribunal wrote to the applicant to put the particulars of certain information to him using the procedure contained in s.424A of the Act. The Tribunal’s letter separately put to him the particulars of the information contained in his Visitor visa application file. The applicant responded on 30 May 2021 by providing the statutory declaration referred to above. In respect of the adverse information contained in his file for the Visitor visa application, the applicant declared as follows:
a.His Visitor visa was organised by [Mr N], the friend of his relative, [Mr J]. Apart from supplying his passport and four passport-sized photos, he never knew anything about it and never signed any forms or documents, and never supplied or provided any documents in person;
b.He asserted the following personal details:
i.He was born in [Village 1], [Town], Fuqing City, Fujian Province;
ii.His residential address in his hukou was also in [Village 1];
iii.His wife is [Ms I];
iv.His two children are [Child 1] and [Child 2], and he provided their dates of birth;
v.He has never been employed as [an Occupation 3] with [Employer];
c.The place of birth recorded in his passport is Fujian, not Shanghai;
d.He previously held passport [No. 3], but has never obtained any visas on the passport, nor has he ever travelled on the passport;
e.He asserts that he never left China prior to coming to Australia. He states that he never obtained visas for travel to the Schengen States and has never travelled to [City, Country 2], [Country 3], [Country 1] or [Country 4]; and
f.He did not provide a marriage certificate, certificate of employment or certificate of ownership of real estate in relation to his Visitor visa application.
Country information

At the second hearing, which was held by telephone, the Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[3], which provides relevant information regarding compensation for expropriated land in a section about Protesters/petitioners:
[3] DFAT Country Information Report People’s Republic of China 3 October 2019.
Protesters/petitioners
3.134    Protests and petitions occur regularly across China. An estimated 180,000 popular protests (of more than 10 people) occurred in China in 2010, the last date for which official data is available. China Labour Bulletin (CLB) obtained details of 1,287 protests in 2017, and 1,318 protests between January and October 2018, but it estimates this only reflects one tenth of protests that occurred. Most protests concern land disputes, housing problems, industrial, environmental, and labour matters, and government corruption. Others are provoked by accidents or related to personal petitions, administrative litigation, and other legal processes …
3.135    Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters.
3.136    China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low (see also Judiciary). The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing …
3.137    In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise …
The Tribunal indicated that this information may lead it to conclude that while the expropriation of land is common in China, protests and petitions about these processes are also common and there are processes to enable citizens to seek compensation. The Tribunal noted that the provisions which mean that the central government will no longer accept petitions which should be lodged with local government, were only introduced in 2014, after the expropriation events which the applicant claims occurred in 2011. The Tribunal noted that it may also be difficult to generalise and there may be practical issues in access to such justice.
The Tribunal invited the applicant to provide comments in relation to this country information. The applicant indicated that he had five points to raise in response:
a.He argued that the information in the report supports his claim as it suggests that human rights are not protected in China and are ‘oppressed’ (as translated). He stated that when ‘ordinary people’ lose their lands they have no proper means of gaining compensation. He stated that the petitioning offices mentioned in the report are not reliable and don’t care about citizens at all. He referred to the report that in 2014 four million complaints were made, and he questioned how many of them were resolved or received compensation. He questioned how many of the officers involved were placed in jail;
b.He argued about the effectiveness of the constitutional protections if there are four million land disputes per year and argued that this is self-contradictory. He referred to the change in law in 2014 that requires that local governments deal with complaints, and noted that it is local government that is expropriating the land;
c.He argued that the information is inconsistent regarding whether it is possible to petition the central government;
d.He stated that he knows that he can petition the Office of Letters and Complaints and the central government, but there is no point in doing so. The Tribunal questioned why he believes there is no point. The applicant responded that there would be no use in doing so, and again referred to the four million complaints per year; and
e.He questioned whether the Tribunal had any evidence to prove that it would be useful for ordinary people to petition and make complaints. He stated that he can say it is of no use. The applicant again referred to the four million complaints referred to in the report, and noted that the report did not provide any information on the success rate.
The applicant then stated that the youth in China is ‘blocked’ and the Australian government can’t get any evidence about this. He questioned how an ordinary person could get evidence, and he stated that he can only know what happened to him, and that he is sure that he will be persecuted.
The Tribunal put to the applicant that the report refers to local petitioning offices and government-controlled websites as places to make complaints about land issues, and noted that the applicant had not mentioned these. The Tribunal questioned whether there were any reasons why they were not mentioned. The applicant responded that maybe he didn’t make himself clear. He stated that of course he was aware that he could petition and he was aware of the processes for petitioning. He stated that he could have gone to the local government, but what he wanted to say was that it would be of no use, and that instead he would be in more trouble. He stated that the government is in control of the internet, so they can easily track him and locate him. He stated that the petitioning office would be of no use at all and would put him in bigger trouble.
The Tribunal discussed the following country information from the latest DFAT Report for China, regarding Christianity and the Local Church with the applicant:[4]
[4] 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 …
3:32    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 … Protestants (60 to 80 Million, of which only 30 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.
3:34    Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.
3:35    Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
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.
The Tribunal summarised and discussed further information with the applicant about Christianity in China, in particular unregistered churches:
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.
…
3.79    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 discussed further country information relating specifically to the Local Church:
Other groups, including ‘cults’
3.94    In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters …
The Shouters (Local Church)
3.105    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.
3.106    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.
In response to this information, the applicant indicated that he wished to raise 7 points:
a.He stated that religion in China is controlled by the Chinese government, especially Christianity. He referred to the number of unregistered Christians and stated that the figures mean that over 50% of Christians do not accept the authority of the registered churches;
b.Religious policy may be more relaxed in Fujian, but he belongs to the Local Church, which is banned by the government and labelled an evil cult, and that members of evil cults are persecuted by the government everywhere in China;
c.The Local Church implements a policy of having ‘one church’ in each place, such as only one church in Sydney, and therefore their growth of members would be on a larger scale. His church will not restrict itself to a small scale. His ‘mentor’ is located in Shaanxi province, where government control is stricter. He stated that the Recovery Version of the Bible is banned in China, and is the major text they use on their church. He stated that he is not just an ordinary member of the church, but is an important/significant member;
d.The information shows that his church is still listed as an evil cult in 2017, so he will definitely be persecuted;
e.He stated that the information on the local church is incorrect. He stated that the Local Church was founded un 1922 by Watchman Nee, and was later taken up by Changsou Li;
f.He stated that Brother Li suggested that adherents shout out the Lord’s name and that they use the Recovery Bible and have only one church in one area. He stated that calling them ‘the Shouters’ is disrespectful and denigrating because their church is the covered church of the Lord;
g.He referred to the information about the Local Church having splintered into smaller groups, and the report’s statement that the DFAT cannot verify whether the Local Church remains active. He stated that this means the government is cracking down on the church and the church has had to go underground, which is why no evidence can be found of it by the Australian government. He stated that this makes him afraid to go back.
The Tribunal put to the applicant that the country information mentions the practice of members of the Local Church of calling out ‘Oh Lord’ three times, and noted that the applicant may not have demonstrated an awareness of this practice when he was earlier questioned by the Tribunal. The applicant stated that this is because they would not tell others that they are called the Shouters, and that the Local Church does not have a specific name and takes its name from its location. The Tribunal put to the applicant that it had asked him specifically about anything which is shouted out in his church, but he told the Tribunal that there was nothing in particular. The applicant responded that he had not understood the Tribunal’s question. He stated that what they would always say is ‘Lord Jesus, Amen.’ He stated that they don’t just call out the Lord’s name three times.
The Tribunal referred to the reference in the report to Witness Li’s claim that ‘the gift of tongues could be taught’, and asked the applicant whether it could tell him what the gift of tongues is. The applicant responded by saying that ‘Jesus is the God’ and that they cannot randomly yell out other’s names. The Tribunal asked again whether there was anything else he could tell it about the gift of tongues. The applicant responded ‘Oh Jesus, Lord.’ The Tribunal then questioned the applicant as to whether he had ever seen someone speaking in tongues, to which he stated yes. When asked whether he could describe what such persons did or what it was like, the applicant responded that they would say, ‘Lord Jesus, Amen. Lord Jesus, Amen.’ When asked whether they would say anything else, the applicant responded no. The Tribunal checked with the interpreter whether she was able to translate ‘Pentecost’ into Mandarin, to which the interpreter confirmed without hesitation that she was able to do so. The Tribunal then asked the applicant whether he had heard of the Pentecost. The applicant responded yes. The Tribunal then asked the applicant whether anything special happened during the Pentecost. The applicant stated, ‘Let me think about it,’ and then proceeded to tell the Tribunal that it was the 50^th day after the Israelites went out of Egypt. He stated that three months after they left Egypt, they came to the wilderness. The Tribunal asked what happened there, to which the applicant responded that Jehovah sent down the Ten Commandments.
The Tribunal noted that it had asked the applicant about the Ten Commandments at the first hearing, and that it was not asking him about this at this point of the hearing. The Tribunal reminded the applicant that it was asking him about the gift of tongues and asked the applicant whether he was able to tell it about the Local Church’s beliefs regarding the gift of tongues. The applicant mumbled a response, which the Tribunal asked the interpreter to translate. The interpreter indicated that the applicant stated, ‘What is that? Speak?’ and that the applicant did not appear to understand the question. However, after a delay and after no further prompting, the applicant suddenly indicated that he was able to answer the question. The applicant stated that the Holy Spirit arrived and it occurred that people spoke in different languages. The Tribunal questioned the applicant as to why he was able to now provide this explanation, when a few minutes beforehand he was unable to answer it. The applicant indicated it was because he did not understand the question.
Other potential concerns put to the applicant

148. The Tribunal notes the two visas to the Schengen States, which the applicant claims are false documents, contain photographs of him at younger ages, and wearing different sets of clothing. The Tribunal considers that the visas to the Schengen States would have been difficult for the above-mentioned networks to produce without the applicant being involved by supplying photographs of himself at different ages. The Visitor visa application also contains a marriage certificate, in which the applicant is posing beside a woman. The Tribunal notes that the marriage certificate is in Chinese, however the dates of birth of the two individuals referred to in the marriage certificate match those for the applicant and for [Ms R] ([Date 5]), as provided with his Visitor visa application. It appears from this marriage certificate that the applicant has posed for a photograph with a woman other than his wife, for the purpose of creating false documents in support of his Visitor visa application.
149. The Tribunal does not find the applicant’s claim that he was unaware of false or misleading information being put forward in his Visitor visa application to be persuasive, and finds it is not supported by the nature of the documents provided, which include the above photographic evidence of the applicant’s participation or facilitation in the production of these documents. The Tribunal considers this raises further concerns that the applicant is not a truthful witness, and regarding the overall reliability of evidence provided by him in support of his protection claims.
150. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful or reliable witness. His evidence regarding the demolition of his property and the subsequent protest and arrest was not persuasive, nor was his evidence regarding his understanding of Christianity or the beliefs and practices of the Local Church. The applicant demonstrated a propensity to shift his evidence in response to concerns raised. In addition, he demonstrated a propensity to research information relevant to questions he had been asked earlier in the hearing, to the point where he mistakenly gave information about these topics in response to questions about other topics. On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth as to his fears.
Corroborative evidence regarding the applicant’s religious practice in Australia
151. The Tribunal has considered the supporting documents which the applicant provided to the Department in support of his claims to be a practitioner of the Local Church in Australia, including photographs which are labelled as being of his church activities in Australia, and support letters from [D], [E], [F], [G] and [H]. In addition, the Tribunal has considered the supporting documents which the applicant provided directly to the Tribunal, which include further support letters from [Ms A], [Mr B] and [Mr C], as well as screen shots of the applicant attending online gatherings of the Local Church during COVID-19.
152. The Tribunal notes that the three photographs which were provided to the Department of the applicant’s church activities in Australia appear to show a group of people in a room, some of them holding texts. Each of the photographs appears to have been taken in the same room, with each showing the same architectural or design features on the walls and ceiling of the room. It is difficult to identify the applicant in these photographs, but even if the applicant were clearly identifiable, there is no information regarding when these photographs were taken, nor whether they were taken on the same or different occasions. The Tribunal therefore gives these photographs limited weight in demonstrating the applicant’s attendance at Local Church gatherings in Australia.
153. The support letters contain the following information:
a.The letter of [D], states that s/he knows the applicant through an introduction by ‘Brother [S]’ (full name not provided) at a group meeting held at [her/his] ([D]’s) house on 16 April 2016. S/he states the applicant studies Bible every Saturday at his/her home, and that s/he supports him with his Protection visa application. [She/He] records [her/his] address as [Address 5].
b.The letter of [E] states that s/he met the applicant at a meeting in the [Suburb 3] area on 28 February 2016 and that they often study the Bible and participate ‘in the psalmody’, and that s/he supports him applying for the Protection visa;
c.The letter of [F] states that s/he met the applicant at a meeting in the [Suburb 3] area on 13 March 2016, that they study the Bible together, participate in the psalmody, praising and blessing their God, and that s/he supports him applying for the Protection visa;
d.The letter of [G] states that s/he met the applicant at [Suburb 4, location] on 25 January 2016. Prior to stating that s/he supports the applicant applying for the Protection visa, his/her English translation of the letter contains the following clauses or sentences:
I took him to the Church and every week he would come on time to attend the Church’s meeting Brother [S] at the group meeting held at my home on 16^th April 2016.

[G] records his/her address as [Address 6]
e.[H] states that s/he met the applicant at the Lord’s Day meeting in the [Suburb 5] area on 21 February 2016 and that they often attend the group meeting together. S/he states that s/he supports the applicant applying for the Protection visa;
f.[Ms A] states in her letter that she is a Christian from Sydney Local Church and that she met the applicant at the Church in 2016, that they have often taken part on church gatherings together;
g.[Mr B] states in his letter that he is a Christian from Sydney Local Church, that he has known the applicant from the Church since October 2017, and that they have often taken part in the group meeting;
h.[Mr C] states in his letter that he is a Christian from Sydney Local Church, that he has known the applicant since January 2016, that they have often gone to the church service together and often taken part in the home group meeting.

154. The Tribunal notes the similarity in structure of all of the five support letters provided to the Department, as well as the similarity in structure of the three that were provided to the Tribunal on 2 March 2021, suggesting the letters in each of the two batches were not produced independently of each other. The above quoted text from the letter of [G] also contains text about ‘Brother [S]’ and a ‘group meeting held at my home on 16^th April 2016’, which is identical wording contained within the letter of [D]. This is despite [G] claiming s/he met the applicant at [Location]. The Tribunal notes that [G] and [D] have not indicated that they live at the same address. The Tribunal also notes that the letters of support make claims about the applicant’s participation in church activities which were absent from the applicant’s evidence, such as [D]’s claim that the applicant attends bible study every Saturday at his/her home. The Tribunal also notes that none of the letters is from anyone claiming to hold a leadership or official position within the Local Church. When this concern was put to the applicant, he gave an unconvincing response for why this was the case, stating that he may not have attended some activities, that some activities may only be for certain members, and so he may not have made much of an impression.
155. The Tribunal has also considered the 14 screen shots which the applicant provided of his attendance at online gatherings of the Local Church during the COVID-19 pandemic. Thirteen of these screen shots feature the applicant in a split screen window with other participants in separate windows. No information had been provided as to when these screen shots were taken, other than one screen shot being headed with the text ‘[Suburb 5]’ and then some Chinese characters. In all but two of the 13 photographs featuring the applicant, he is wearing the same brown t-shirt (in the remaining two, the t-shirt is not clearly visible, although it is clear he is wearing a t-shirt in these screen shots as well). There is nothing before the Tribunal to indicate that these screen shots were not taken at the same meeting, and therefore they provide little support for the applicant’s claims regarding the extent of his participation in Local Church activities. Accordingly, the Tribunal places only very limited weight on the above support documents as an indication of the applicant’s level of attendance at Local Church services or meetings.
Credibility summary
156. The Tribunal has considered all other information provided on behalf of the applicant, but is not satisfied that it overcomes the difficulties with the applicant’s credibility. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims, and that he has engaged in conduct in Australia for the sole reason of obtaining a Protection visa.
Does the applicant have a well-founded fear of persecution if he returns to China?
157. In his Protection visa application the applicant claims that in June 2011 his [Business 1] in [Town], Fujian Province was compulsorily expropriated and demolished and that he assisted his friend and co-owner of the [Business 1], [Mr J], to lead a ‘protection’ team against construction workers when they attempted to demolish the property, and that he was arrested and detained for 15 days, during which time he experienced a range of tortures. He claims that following this he had a bad police record, so he went to work at his friend’s [Business 2] in Wugong County, Xianying City in Shaanxi Province.
158. As noted above, the Tribunal accepts that the applicant is from Fujian Province. The Tribunal does not however accept the applicant’s claims regarding the timeline of any notice of expropriation and demolition of his [Business 1] to be convincing. In addition, the Tribunal had concerns regarding the applicant’s awareness of, and evidence regarding the complaint or petitioning processes, evidence of which he shifted in response to the Tribunal’s discussion of the relevant country information. It follows that the Tribunal does not accept that the applicant protested in relation to such a demolition, or that he was detained as a result. The Tribunal did not find convincing the applicant’s claims regarding why he was released, and again notes that the applicant shifted his claims in response to a concern put to him, claiming that he was regarded as ‘anti-revolutionary’, in contrast to his earlier evidence where he stated he was merely a ‘helper’ to an anti-government activist. The Tribunal notes that there were other potential inconsistencies in the applicant’s evidence, however the Tribunal has not addressed these because of the fundamental concern discussed next.
159. The Tribunal notes that even if it were to accept the applicant’s claims regarding the demolition of the property, his protest, arrest and detention, it does not accept that this would result in the applicant having a well-founded fear of persecution if he returns to China. As noted above, the applicant gave evidence that he was arrested in June 2011 and that he moved to Shaanxi Province at the end of 2011. The applicant continued to reside in China until he arrived in Australia [in] January 2016, indicating that he continued to reside in China for over four years. When asked what would happen as a result of these events if he returns to China, the applicant’s first response was he didn’t think there would be any more consequences. When this was put to the applicant at the second hearing, he claimed that he was charged with being anti-revolutionary and with disrupting public order, however the Tribunal finds this to be inconsistent with his claims regarding why he was released by the police after only 15 days in detention.
160. The Tribunal does not consider that the applicant provided any convincing evidence that these claimed events would be a source of any harm if he returns to China. There is no evidence to suggest that he continues to be of interest to the local government in [Town], Fujian or of any interest to the police there. He gave evidence that he returned to Fujian a number of times, to collect bibles, and that he was baptised there. There is no evidence that he has continued to protest in relation to the demolition of his [Business 1] or that he subsequently developed a profile as a protester in China or Australia in the approximately 10 years since the claimed events. The Tribunal finds that there is no real chance of the applicant being arrested, detained, harassed or otherwise harmed in connection with his claimed protest activities and arrest in 2011.
161. The Tribunal accepts on the basis of the applicant’s evidence, that the applicant has attended services or gatherings of the Local Church in Australia, however, based on his knowledge of the Bible and the beliefs and practices of the Local Church, it does not accept that he is a regular attendee or a genuine adherent to this faith or any other Christian faith. Based on the evidence of his knowledge of Christianity and the practices and beliefs of the Local Church, the Tribunal does not accept that the applicant was a Christian in China or that he was converted to the Local Church after moving to Shaanxi Province. The applicant gave vague and unpersuasive evidence about his participation in services in China, including vague evidence regarding the location of services and vague responses about the content of services. He gave unconvincing evidence at the first hearing of a prayers within the Local Church in China. Based on the information he provided at the first hearing about baptism, including his clear statement that he has never heard of anyone being baptised more than once, the Tribunal does not accept that the applicant has a genuine awareness of baptism within the Local Church, and this casts doubt on his claim that he was baptised on China. The Tribunal therefore does not accept that the applicant secretly transported bibles from Fujian Province to Shaanxi Province, nor does it accept that he evangelised and attempted to convert people while he worked as [an Occupation 2] for locals. The Tribunal found the applicant’s evidence regarding evangelising to be unconvincing. It also follows that the Tribunal does not accept the applicant’s claims regarding the arrest of [Ms M], or that this is a source of fear for him and the reason why he came to Australia in January 2016. The Tribunal is of the view that the applicant has manufactured all of these claims for the purposes of his Protection visa application.
162. Further support for these findings comes from the evidence that the applicant attended the [Country 1] Consulate in Guangzhou in October 2015, for the purpose of making a visa application to [Country 1], approximately one month before he claims [Ms M] was arrested. This raises further doubts regarding his reasons for wishing to leave China and his claimed fears that [Ms M] might provide his details if she was tortured. The Tribunal considers that the applicant’s visit to the [Country 1] Consulate in October 2015 suggests that he wished to leave China for reasons other than a fear of persecution. The Tribunal does not accept the applicant’s explanation that he had already begun to suspect that something would happen, which is why he applied for the visa to [Country 1]. The Tribunal does not consider this response convincing, and notes that at the first hearing the applicant denied going to the [Country 1] Consulate, and continued to do so until the Tribunal put to him in writing adverse information which indicated he had attended the consulate in person. The Tribunal finds that the applicant attempted to shift and tailor his evidence in response to the adverse information put to him.
163. As the Tribunal does not accept that the applicant is a genuine adherent of the Local Church or a genuine Christian, it does not accept that he would seek to attend the Local Church or undertake any activities associated with the Local Church on return to China. The Tribunal is not satisfied that he or any member of his family has participated in, or will participate, in any religious activity or any conduct that will result in his arrest or harm.
164. The Tribunal has considered the letters of support provided by the applicant regarding his attendance at Local Church services in Australia. While the Tribunal accepts that the applicant has been attending Local Church services, on the basis of the evidence regarding his knowledge of Christianity and the Local Church, the Tribunal does not accept that he is a regular attendee, nor is the Tribunal satisfied that he a genuine, committed adherent or the Local Church. The Tribunal has formed the view that the applicant has attended Local Church services in Australia solely for the purpose of making his Protection visa application and to achieve a migration outcome, and which conduct is disregarded. It considers that the applicant has come to Australia for reasons other than a fear of persecution.
165. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.
166. 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) of the Act.

Does Australia have protection obligations to the applicant under the complementary protection criterion?

167. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
168. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[9] 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. ‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
[9] 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]
169. As detailed above, I have rejected the applicant’s claims that he was a practitioner of the Local Church in China or that he delivered bibles and evangelised others. I have also found that the applicant’s activities in Australia that relate to the Local Church have been for the purpose of his protection visa application and have found that the applicant would not seek to attend the Local Church on return to China.
170. The provisions of s.5J(6) of the Act do not apply to complementary protection. Thus, the Tribunal does not disregard the applicant’s conduct in Australia when considering whether he faces a real risk of significant harm in China.

171. The Tribunal accepts that the Chinese authorities are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China. The available country information suggests that the Chinese government perceives the Local Church to be a dangerous cult, and since the early 1980s the Local Church has been targeted as counter-revolutionary. The Tribunal does not however accept that there is a risk that the applicant’s conduct in Australia has brought him to the attention of authorities in China. The Tribunal does not accept that the applicant is a genuine or regular attendee of the Local Church. He has not participated in any activities which would create a public profile or bring him to the attention of authorities in China. The Tribunal does not consider there is any evidence to indicate that there is a real risk of the Chinese authorities being aware of the applicant’s activities in Australia or that he has come to the attention of such authorities whilst in Australia. The Tribunal finds that there is no real risk that 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 as a result of any conduct in Australia.
172. On the applicant’s own evidence, he did not consider he would come to any harm or that anything would happen as a result of any protest activities that he claimed occurred in June 2011. Although the Tribunal does not accept the applicant’s evidence that any such protest activities occurred, it finds that even if they did occur, there is no real risk that 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 as a result of such protest activities in June 2011.
173. 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, 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 China. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China, now or in the reasonably foreseeable future.
174. Having considered all of the applicant’s claims, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.
Conclusion
175. 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).
176. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
177. 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
178. 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.
…

[2021] AATA 3818

15 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies