1700725 (Refugee)

[2020] AATA 5735

1700725 (Refugee) [2020] AATA 5735 (2 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700725

COUNTRY OF REFERENCE:                   China

MEMBER:Frank Russo

DATE:2 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 2 December 2020 at 11:27am

CATCHWORDS
REFUGEE – protection visa – China – Threats from loan shark – parents borrowed money for his education – conversion to Catholicism – house church – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499

CASES
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia [in] March 2008 as the holder of a Schools sector (Subclass TU-571) (Student) visa. The applicant’s visa ceased on 1 October 2010, and the applicant remained in Australia unlawfully.

3. The applicant who claims to be a citizen of China, applied for the Protection visa on 19 April 2016. The delegate refused to grant the visa on the basis that she was not satisfied the applicant is a person in respect of whom Australia has protection obligations. The delegate did not accept the applicant’s claim that he will be harmed by money lenders on return to China in relation to a debt owed by his parents to be plausible. While the delegate accepted that the applicant had been attending Catholic church, had rudimentary knowledge of the tenets of Catholic faith, and may practice Catholicism if he returns to China, the delegate was not satisfied that there was a real chance of persecution on the basis of his religion or that there were substantial grounds for believing he faced a real risk of significant harm if returned to China.

4. The applicant applied for review of the delegate’s decision on 19 April 2016.

5. The applicant was assisted in relation to the review by his registered migration agent.

6. On 26 August 2020, in accordance with measures introduced by the Tribunal in response to the COVID-19 pandemic, the applicant’s representative was contacted regarding the applicant’s capacity to attend a video hearing. On 27 August 2020, the applicant’s agent advised that both he and the applicant preferred to attend a hearing either by telephone or face-to-face.

7. On 28 August 2020, the applicant was invited to appear before the Tribunal by telephone on 14 October 2020 to give evidence and present arguments.

8. The applicant appeared before the Tribunal by telephone on 14 October 2020. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicant’s agent also attended the hearing by telephone and was present in the same room as the applicant.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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

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

17. The Tribunal, in reaching its decision, has taken into account all of the evidence and submissions before it, as well as taken into account independent country information about China, including country information provided by the applicant.

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

    Identity

19. The applicant provided a copy of his Chinese passport to the Department. On the basis of this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.

20. The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.

    Claims

    Claims made with visa application

21. In his Protection visa application provided to the Department, the applicant makes the following claims:

    a.That he arrived in Australia in 2008 as a student and that he came from the countryside of Fujian Province;

    b.Shortly after he arrived in Australia his family experienced an ‘economic crisis’. To raise the money for his tuition in Australia and capital for the family’s business, his family borrowed money from ‘userers’. The family business remained in recession for a long time and his family could not pay off the loan;

    c.His family hoped that the applicant could return to China to help pay off the debt, but he did not want to do so, and that he wished to continue with his education;

    d.Some time later, his family urged him to return to China and threatened to cut off their economic support if he refused to do so, but the applicant responded that he would rather continue with his academic career and pay for his own tuition fees and expenses. He remained in Australia and began to work part-time to support himself;

    e.The applicant claims that as his Student visa was drawing to an end, he was cautioned by a teacher from his school, that he would be reported to the Department if he had a poor attendance record. He did not know what to do and saw an advert from an immigration agency in a newspaper. He phoned the agency to ask how he could continue with his education and how he could stay in Australia, but was told he had no choice but to go back to China or file and employer sponsorship application, which might give him a chance to stay in Australia;

    f.The applicant found work with an employer who promised to arrange permanent residency for him through a skilled visa, on condition that he work for this employer for three years, however the company closed after two years. He then worked for another employer who specified the same condition, but after two years was fired on the pretext that he had no legal status in Australia;

    g.In 2011 his family were being ‘pressed’ by the money lenders and were worried about their own safety. They urged the applicant not to return to China, because they were afraid he would be in danger;

    h.He claims that the money lenders collaborated with ‘underground gangsters’, and would go as far as kidnapping people for ransoms. He claims that a family in his hometown was the victim of such a crime. From then on he was frightened of the thought of returning to China and lived a low-profile life in ‘remote rural areas’;

    i.His parents fled to escape the money lenders and went to ‘other places’, where they converted to Roman Catholicism and attended the local house churches;

    j.His parents preached the gospel to him and in turn converted him to Catholicism. He attended Catholic churches, and through praying, began to confess and repent;

    k.He had been to different Catholic churches in Australia, but couldn’t find one to stay with, partly because in those churches, only English was spoken. He claimed that he had recently (at the time of making the application) found a Chinese Catholic church in [Suburb 1];

    l.In 2016 his family told him that the house churches in his hometown do not enjoy freedom of faith and that local government authorities are in search of unauthorised adherents; and

    m.He claims that the Chinese Government only recognises the Patriotic Church and does not officially recognise the Pope or other Roman Catholic churches. He claims that the Patriotic Church is manipulated, and the gospels are not preached, and that the Pope’s encyclicals and directions from the Vatican cannot be spread. He states that criticism of the Chinese government is strictly prohibited. He claims that the Chinese churches do not have freedom of faith, and that he has filed his application for protection on religious grounds, as the only place that he can practice his faith is in Australia.

    Departmental interview and delegate’s decision record

22. The applicant attended an interview with the Department on 8 December 2016. The delegate’s decision record indicates that at interview the applicant claimed that he cannot return to China because he is a Roman Catholic and will be arrested and seriously harmed for the practice of his faith, and that people to whom his parents owe money will harm him if he returns.

23. Regarding the fear of money lenders, the applicant indicated that his parents borrowed [amount] RMB as capital for their business, including [amount]RMB to pay for his tuition in Australia. He indicated the loan was taken out in 2008. He stated that over the years his parents had paid back all of the loan, other than the [amount] RMB, which remained outstanding and they were still paying it back.

24. The delegate put to the applicant that the money was borrowed by his parents and not by him, that he has [a] brother who lives with his parents and has not been encumbered with the debt, that no-one from his family has been harmed in any way in relation to the debt, and it appeared that his parents had been repaying the loan since 2008. The applicant stated that in 2011 a man from his home village was kidnapped for this reason. The delegate considered that the applicant was speculating and did not find the applicant’s claim in relation to fear of money lenders to be credible or plausible.

25. In relation to his fear of persecution on the basis of his religion, the applicant indicated at the interview that he had not yet been baptised as a Catholic as he was ‘not good enough yet’, though he intended to be baptised once he completes the required course. He indicated he had taken up Catholicism because his parents had talked to him about the Catholic faith since 2011 and they gradually persuaded him. He stated that he started going to church in Australia in 2013, but had difficulties with the language until he found the Catholic church in [Suburb 1]. He claimed that he has attended the church in [Suburb 1] since January 2016. He stated that he attended bible studies and meetings with other followers in their homes. The delegate found the applicant was able to name priests at the church, give details of the length and format of the mass and answer rudimentary questions about the practice of the Catholic faith. He presented a letter of support as evidence of his engagement in Catholic Church activities in Australia. The delegate was prepared to accept that the applicant had attended the Catholic Church in [Suburb 1] since January 2016 and was attending classes preparing him for baptism into the Catholic faith.

26. The applicant told the Department that he would not attend a State-sanctioned church in China as the registered Catholic Church is managed by Chinese authorities and not recognised by the Pope. The applicant stated that he could not return to China to practice his faith. He stated that he wants to be baptised and wants to spread teachings and the gospels to other people.

27. The delegate put to the applicant that as a Catholic he was not required to evangelise, to which the applicant responded that this is what his parents do and he is a devotee.

28. The delegate found that:

    a.The applicant had been attending [Church 1] in [Suburb 1] with the intention of being baptised into the Catholic faith;

    b.The applicant had rudimentary knowledge of the tenets of the Catholic faith;

    c.It was probable that the applicant will attend an underground Catholic Church if he was to return to China;

    d.The applicant will not attend a State-sanctioned Catholic Church if he returns to China; and

    e.The applicant’s claims that he would be involved in evangelising others in China were not plausible or credible.

    Documentary evidence before the Tribunal

29. In addition to his application for review form and a copy of the delegate’s reasons for decision, the applicant provided the Tribunal with the following documents prior to the hearing:

    a.Responses to hearing invitations;

    b.Appointment of authorised representative;

    c.Certificate of baptism and confirmation, issued by the Catholic Archdiocese of Sydney [in] April 2017;

    d.Letters of support from:

    i.[Father A], [Church 2], dated [March] 2020; and

    ii.[Mr B], President of [Church 2], dated [March] 2020;

    e.15 photographs of Catholic services and processions and of the applicant and members of his family posing with Catholic clergy;

    f.Marriage certificate and copy of passport photo page of his wife; and

    g.Birth certificates of the applicant’s son and daughter.

30. At the hearing the applicant’s agent referred to a supplementary submission which he stated had been provided. The Tribunal noted that there was no such submission on the file. The applicant’s agent requested an extension of time to provide a copy of the submission. The Tribunal granted the applicant 7 days to provide the submission.

31. On 19 October 2020 the applicant’s agent provided an email containing a ‘supplementary statement’/submission, as well as a 32-page country information document, which contained copies of or links to seven articles as well as a resolution of the US House of Representatives.

32. The Tribunal has read these documents and has had regard to them in making its decision. The Tribunal has also had regard to the documents on the Department file. The Tribunal notes in particular the applicant’s statement which accompanied his visa application, a letter of support provided by [Father C], Chaplain Pastor at [Church 2], dated [December] 2016, and photographs provided by the applicant.

    Evidence regarding the applicant’s background and other preliminary matters

33. At the hearing the applicant gave evidence that he was aware of the contents of his application form. He stated that the application was made by himself with the help of a friend, and that the contents of the application were read back to him by his friend. He gave evidence that the contents of his application form were true and correct. He confirmed that he did not wish to make changes to his application form or add to the claims he had made.

34. The applicant gave evidence that he was born in [Fuqing] City, Fujian, and that he lived at the same address until the age of [age], when he arrived in Australia. He confirmed that he completed the equivalent of year[grade] high school in China and that he has not held employment in China. He confirmed that he did not live at any other addresses in China. He confirmed that his parents and [brother] are alive and live together in Yunnan Province.

35. When asked what his parents do for work, he stated that they have worked in a factory for the past one-and-a-half years. He stated that before that one of his parents was [an occupation] and the other worked in a [workplace]. He stated that while he was growing up in Fujian, his father worked as [an occupation] and his mother took care of the farmland at home.

36. The applicant gave evidence that he is married and has two children, and that he met his wife in 2013 and they were married in August 2016. He stated that he met he in a ‘rural area’ and then stated it was [City 1]. When asked where they were married, the applicant stated that they took the marriage certificate ‘without getting married’. The Tribunal questioned whether he meant they had obtained the marriage certificate without holding a ceremony, which the applicant indicated was the case. He confirmed that his wife and children are not dependants to his visa application. He stated that his wife currently holds a Bridging visa for which she is the primary visa holder.

37. The applicant gave evidence that he first arrived in Australia [in] April 2008 by plane, travelling first to Yunnan Province and then departing China from Guangzhou. He confirmed that he travelled on his Chinese passport.

38. The applicant gave evidence that he came to Australia for the purpose of study, and that he was enrolled in year [grade] high school at [a school]. He stated that he started with an English language course, but he ‘dropped out’ in March 2009. He confirmed that he studied for less than a year and that he has not completed any qualifications in Australia.

1. The applicant stated that he started working after he left his studies in Australia. He stated that he worked in [workplaces] and as [an occupation]. At the time of the hearing he was working as [a different occupation].

2. The applicant gave evidence that other than his initial Student visa granted in 2008, he has not been granted any other visas to Australia other than the Bridging visa granted in 2016 when he made his application for the Protection visa.

   Evidence regarding claims for protection – fear of money lenders

3. When questioned how much his university enrolment fees were, the applicant stated that he did not know. He stated that his family had arranged everything for him, and that he was only given 1,500 AUD when he left for Australia. When questioned how much his family had borrowed, he stated that he heard it was [amount] RMB, which was to enable his parents to open up a shop, as well as for him ‘to come overseas’.

4. The applicant stated that his parents’ shop was [details deleted]. When questioned when his parents borrowed the money, the applicant stated it was prior to him coming to Australia. When asked if he could be more specific, he stated that he didn’t know because he was [age] years old then. When questioned when they opened up the shop, the applicant stated it was in 2006.

5. When questioned whether he knew how much money had been borrowed for his studies, the applicant stated that his parents arranged everything and that he didn’t know, but stated he believed it was around [amount range] RMB, which he stated was about [amount] AUD.

6. The Tribunal questioned why his parents would have needed to borrow [amount] AUD when on his evidence he had only been enrolled in year [grade]. The applicant responded it was because there was a requirement that fees be paid as a guarantee to sponsor him when he came to Australia. When further questioned about the fees for his year [grade] studies, the applicant stated that he didn’t know how much they were because his family arranged it for him, but stated that they would have been around 10,000 AUD. The Tribunal noted that if his parents had given him 1,500 AUD, then in total his parents had incurred expenses of $11,500. The applicant stated that the rest of the money was used as a guarantee and a deposit paid to the people who had arranged for his overseas study. The applicant stated that these people were in China, but he does not know who they are.

7. The applicant told the Tribunal that his family experienced an economic crisis in 2009 because his family took out a high interest loan and their money flow ‘broke’, and they no longer had the capacity to pay off the loan. He stated that the crisis occurred when a [client] whom they sold things to [went] bankrupt. He stated that his parents had no way of collecting the payment they were entitled to and that their business also went bankrupt, with the shop closing in 2010. The Tribunal questioned whether his parents’ business involved selling [to] only one customer, and how they could have been so reliant on this one customer. The applicant responded that his parents trusted the [client], but their business also involved [deleted].

8. The applicant stated that he first became aware of an issue with the money lenders in 2011 when his family told him. He gave evidence that about [amount] RMB is still owing on the loan. He stated that he found this out from his parents when he asked them, but he could not remember exactly when he last asked them. He stated that his parents are still paying off the debt. The Tribunal raised that at the interview with the Department in December 2016 he had also stated that [amount] RMB was owed. The Tribunal questioned how his parents were able to pay off approximately [amount] RMB of debt from 2008 to 2016, but in the approximately 4 years since December 2016 they had not managed to reduce the outstanding amount of [amount] RMB. The applicant stated this is because his father’s health is not good and he was diagnosed with [medical condition] at the end of 2017. When asked whether his father was able to work, the applicant responded that he wasn’t at the moment. The Tribunal noted the applicant had earlier given evidence that his parents were working in a factory. The applicant responded that his father has not worked for 6 months, and that it is just his mother who is working. The Tribunal questioned why, if that was the case, he had given evidence that his parents had worked in a factory for the past one-and-a-half years. The applicant responded that he thought that question was about the previous work his parents had undertaken. The Tribunal noted that he had given evidence that his parents had previously worked [in certain roles]. The applicant stated he had misunderstood the question and thought it had been about his parents’ previous work.

9. The Tribunal questioned the applicant’s claim that in 2009 his parents hoped that he could return to China to help them pay off the debt. The Tribunal questioned why there would be such an expectation when [amount] RMB had been paid to assist him to study in Australia, and why wasn’t there an expectation that he would continue with those studies, given the expense which had been incurred. The applicant stated that his parents told him their financial status and they could no longer afford his tuition fees. The Tribunal questioned whether his parents had not considered the option of the applicant remaining in Australia to earn money to help pay off the loan, to which the applicant responded that they were simply asking him to return to China to get a job there and help pay off the debt.

10. When questioned about the location of his parents’ shop, the applicant stated it was in Guizhou City, Guizhou Province. When questioned again when this shop was opened, he stated in 2005. The Tribunal noted the applicant turned [age] years old in 2005, and raised whether it was unusual that his parents would leave him on his own as a [age]-year-old while they ran a business in another province. The applicant responded that it was quite normal in his home town.

11. When questioned why he would be of interest to the money lenders, the applicant stated because his parents cannot pay off the debt, so the money lenders want to use him to make threats to his family. He stated that there is a saying that the son is responsible for paying off the father’s debts.

12. As to any threats or incidents involving his family, the applicant stated that the front gates to his family home in Fujian had been removed after he came to Australia. He stated that his family said the money lenders were looking for him and wanted to take him hostage. The Tribunal questioned why he believed the money lenders wanted to take him hostage on the basis of missing gates. The applicant responded it was because they could not find his parents, and so they came looking for him. He stated that the money lenders were gangsters, so his parents told him it was unsafe to go back to his hometown.

13. When questioned whether anything else happened to his parents or to his brother after they moved to Yunnan Province, the applicant stated yes, and stated that he heard someone was looking for them. The Tribunal questioned why the money lenders would come looking for his parents when they had continued to pay off the debt. The applicant responded it was because the money lenders believed his parents were paying off the debt in such a long process and the interest kept rolling in. The Tribunal questioned why the money lenders would come looking for him and not for his brother. The applicant stated that they were also looking for his brother, which is why his family went to Yunnan Province, and they would not dare use their true names. The Tribunal questioned whether there was any reason why this had not been mentioned in the interview with the Department, to which he responded that he was not asked that question.

14. When asked if his parents had reported the incidents to the police, the applicant stated that they had done so once, but the police wouldn’t do anything.

15. The Tribunal raised concern that the delegate’s reasons for decision note that when it was put to him at the Departmental interview that it was not credible or plausible that he would be harmed in relation to the balance of the debt owed by his parents if he returned to China, that he responded that in 2011 a man from his home village was kidnapped for this reason. The Tribunal questioned why he had given this as evidence, rather than telling the Department about the incident involving the removal of the gates from his family home on Fujian. The applicant responded it was because he did not have evidence to prove it and the person who is looking for him is in Australia, not in China. When questioned why he believes someone is looking for him in Australia, he stated that friends from his hometown told him that people came to ask questions and to ask his whereabouts. The Tribunal questioned whether this raised issues regarding his safety here in Australia, to which the applicant responded that at the time he ‘didn’t think this much’ and his family asked him to seek refuge for a period of time, which is why he went to [City 1].

16. The Tribunal questioned whether it was possible for the applicant to live in Yunnan Province with his parents and brother. The applicant responded that at the time he wanted to pursue his studies in Australia and so going back to China had never crossed his mind, and he was too scared to go back to China.

    Evidence regarding claims for protection – persecution on basis of his religion

17. The applicant confirmed at the hearing that he was raised without any religion. He stated that his parents converted to Catholicism in 2014 because they wanted to have a religion. As to why they chose Catholicism, he stated it was because they believed their souls could be saved. He stated that his parents started preaching the gospels to him and he started to believe in the Catholic faith in 2016. He stated that the reasons why he converted was because he wanted to have a religious belief and the freedom, and so he would have a pillar to support his spiritual belief.

18. The Tribunal raised concern about the applicant’s claim that his parents converted him when they were in China at the time of his conversion, to which the applicant responded they preached the gospels to him by telephone. The Tribunal questioned whether he was not sceptical about his parents’ sudden decision to follow a new religion which he was unfamiliar with, to which he responded that he would just listen to his parents and respect their advice, and that his wife also believes in Catholicism.

19. When asked why he believes himself to be a Catholic, the applicant stated it is because he believes in the salvation of the soul and he has witnessed teachings from his church. He stated that he has read the Bible, and that the part that attracts him the most is the resurrection of Jesus, which he stated gives him a lot of inspiration. When asked whether he has read any other Catholic literature, he stated he had read the ‘seven oaths’ (as translated by the interpreter).

20. The applicant gave evidence that he has been attending a Catholic church in [Suburb 1] since 2016, but he had stopped attending at the time of the hearing because of the COVID-19 pandemic. When asked which month he had commenced attending this church, he stated that he could not remember, but it was maybe in January 2016. He stated that prior to COVID-19 he attended weekly mass. When asked the name of the church, he stated that it was [Church 2]. The Tribunal questioned whether he knew the specific name of the church and indicated it was named after a Catholic saint. The applicant stated that he had never paid attention to it, that he doesn’t speak English and so he cannot recognise the English name. The Tribunal questioned whether the name of the church would be named in Chinese services, to which the applicant stated that the name referred to was the one he had provided to the Tribunal.

21. The applicant was able to answer questions about the structure of Catholic mass, stating that services include praying for sins as well as readings from the Old and New Testaments. When asked about any particular prayers recited in mass, he named the Credo (interpreter’s translation of the Apostle’s Creed). He was able to recite the Lord’s Prayer.

22. As to how he practices his Catholic faith, the applicant stated that he shares his experiences with other followers. From the Bible he has learned that he should love everybody as he loves himself and that he should confess his sins. He stated that he has attended confession. He confirmed that he had been baptised since the interview with the Department. When asked why he had been baptised, he stated it was for his religious belief and he decided he should fully commit to his religious life. The applicant also confirmed that he had been confirmed and stated his confirmation name is (as translated by the interpreter) ‘[name]’, however the Tribunal notes the applicant’s ‘middle’ name listed on his certificate of baptism and confirmation is [similar], and accepts that this was either an error of translation or a difficulty in pronunciation. When asked if he knew anything about the saint whose name he had taken, the applicant stated he chose this saint because he committed his life to the Lord and he wants to follow his path.

23. The Tribunal noted the applicant had provided a number of photographs, some of which show him. He indicated that the photographs show the activities of the church, including mass, a march, ‘communication’ and sharing.

24. The Tribunal noted the marriage certificate the applicant provided indicates he was married in August 2016 and the address listed is at [an] address in [a suburb], which does not appear to be the address of a church. The Tribunal questioned why he did not marry in a church if he believed himself to be Catholic at that time. The applicant stated that the location where he was married is a place for wedding ceremonies and taking photographs of marriage. He stated that he married there as he did not know how to apply for a marriage certificate. The Tribunal questioned why he did not ask a priest at his church how he could marry at the church. The applicant stated it was because he wanted to have a wedding ceremony, but the church was otherwise engaged. He stated that he wanted to have a ceremony at the church this year, but could not because of COVID-19.

25. The applicant told the Tribunal that he believes he would attend a house church or an underground Catholic church if he were to return to China. He stated while there are other Catholic churches in China recognised by the Chinese government, they don’t hold the Pope as their spiritual leader and they believe in the Communist Party. He stated that he would not attend one of the Patriotic Catholic Churches as they follow the decrees of the government, don’t preach the truth of the Bible, but political propaganda, and don’t hold the Pope as their leader. He stated that in such churches they only talk about being patriotic and brainwash attendees. When asked why he believes a home church or underground Catholic church would meet his spiritual needs when there is no evidence that he has ever attended a church in China, he stated it is because his parents normally attend a family church.

26. When questioned why he fears returning to China on account of his religious beliefs, the applicant stated it is because members of the family church will be persecuted. He stated that his parents also told him that there is a risk involved in being a member.

27. As to the harm he fears if he were to return to China, the applicant stated that the family church is not recognised. He stated that he would suffer religious persecution. He stated that he believes the harm would be inflicted by the police. When asked if he could be more specific about the kind of harm or persecution, he stated that he would be arrested or sent to prison. When asked the basis for this belief, he stated it is because ‘we’ hold different beliefs and are not able to talk about topics like anti-corruption or anti-government. The Tribunal questioned why a Catholic church would be preaching anti-corruption or anti-government. The applicant stated that it is from the teachings in the Bible, which says that all sorts of crimes or sins should be exposed, and the government in China doesn’t want their sins exposed.

28. As to any persecution that he or his family had experienced in China as a result of their religious beliefs and practices, he stated that his parents are too afraid to acknowledge that they are members of the Catholic Church. The Tribunal sought to confirm that his evidence was that his parents had not experienced any persecution, to which he responded that they are too afraid as they could be locked away. The applicant however stated that his parents were persecuted because the Bureau of Public Security were looking for them, that this is long-lasting, they continue to experience this conduct and his parents are now too afraid to go to the family church.

29. As to whether he could relocate to other parts of China, the applicant stated he wants to stay in Australia to remain in his current church. He stated that he could be found anywhere in China.

30. When asked whether there were any other reasons why he did not wish to return to China or whether there was anything else he wished to say about his claims, the applicant stated that the biggest issue is the Chinese government does not acknowledge the Roman Catholic Church or allow certain staff to be appointed, that cardinals appointed by the Church are not recognised by the government and the Pope will not acknowledge the cardinals and archbishops appointed by the Chinese government. He stated that China does not have any real Roman Catholic Church. He stated that the environment for religious practice has been deteriorating, with churches being torn apart, and that he is worried about going back.

31. The Tribunal put to the applicant that the independent country information before it indicates that there are approximately 6 million to 12 million Catholics in China (with 6 million registered), and that Catholicism is recognised as one of the major religions practiced in China. The Tribunal also put to the applicant that independent country information indicates there is a there is a long history of Catholicism in Fujian and that Fujian has historically been more tolerant than other provinces of religion, as long as the religious practices do not challenge the authority of the Chinese Communist Party.  The Tribunal noted the country information indicates that the government permits small unregistered church gatherings, and that the focus of authorities appears to be on the leaders of both registered and unregistered churches, who are subject to greater scrutiny than ordinary worshippers. The Tribunal noted that the information indicates that Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive, but Catholics face a low risk of societal discrimination. The Tribunal noted that in 2016 the Vatican and the Chinese Catholic Patriotic Association (CCPA) agreed on the ordination of two bishops, and that while there is still no agreement on the treatment of bishops ordained by each, in 2018, China reached a provisional agreement with the Vatican under which Pope Francis recognised several state-appointed bishops. The Tribunal noted that approximately 40 Vatican-ordained bishops remain independent of the CCPA. The Tribunal noted that on the basis of this information, and the evidence the applicant had given about the nature of his religious practice, the Tribunal may find that the applicant could return to China and practice his religious faith in the manner that he stated he practices it, including practicing his faith in an unregistered church, with only a remote chance of him coming to the attention of the authorities.

1. In response the applicant said he does not agree with the information and that the ‘Vatican Catholic Church’ doesn’t have any legal status in China. He stated that the scenario in his town is very different from that which is stated by the Chinese government. The applicant stated he has information from the internet that churches have been demolished and that unrecognised churches are not recognised. He stated he did not believe the information is correct because family churches are required to follow or obey the Communist Party instead of the creed from the Vatican. He stated that from his understanding there are only 7 bishops operating in China who were appointed by the Vatican, and that all others were appointed by the Chinese government. He stated that the teaching he received from his church is totally different from that which is contained in the DFAT Country Information Report. He stated that the main difference is that the Roman Catholic Church is about preaching the Bible, whereas the CCPA does not allow preaching of the gospels. He stated that preaching is illegal and that if you are found preaching the gospels, you will be arrested and imprisoned.

2. The Tribunal raised with the applicant that there was no evidence that he has been preaching gospels, and that the practice of his faith appeared to be that of an ordinary worshipper. The applicant stated that he normally participates in practicing preaching by bringing friends of his into the church so they can gain a better understanding of religion, whereas he has not been doing this during the COVID-19 pandemic. He stated that he is now preaching over the internet. The Tribunal questioned how he does such preaching. He stated that he has software from his church which has all the scriptures and literature about the Bible. He stated that he has preached to friends of his. When asked what he says to people when he preaches, he stated (as translated), ‘Going to the church’. When asked whether there was anything else, he stated, just believe in the Lord’s teaching and the holy Bible.

3. When asked why he does this kind of preaching, the applicant stated that as a Christian he is obliged to preach to the people around him and to ask them to confess and to make the change. The Tribunal questioned whether he had been told by a priest to do this, to which the applicant responded yes, that he had been told to do so by his priest. He stated that the priest would tell him to preach on his behalf. The Tribunal noted that while it was aware of a long history of evangelical activity by the Catholic Church, it was not aware of any requirement that ordinary members of the Church undertake preaching or evangelical activities. In response the applicant stated that in his church they have a class, which includes a lesson and lecture, in which there will be preaching and teaching. The Tribunal noted such activities were part of the catechism organised by church authorities, however this was not the same as requiring members to preach or proselytise. The applicant then clarified that he was not talking about proselytising to people outside the church, but only to those within the church.

4. Following his evidence, the Tribunal raised various concerns with the applicant regarding his claims and the evidence he had provided, and gave him an opportunity to respond or comment on each potential concern. Where relevant, these concerns, and the applicant’s responses, are set out in the summary of my findings below.

   Submissions from the applicant’s agent

5. The applicant’s agent was invited to provide oral submissions at the hearing. He submitted that in deciding to assist the applicant with his application, he saw that the applicant has a good knowledge of his Catholic faith and has supporting documents, such as letter of support from his church. He actively participates in his church and has commitment to the Catholic Church in Sydney. He submitted that he had discussions with the applicant about Catholic faith, which showed he has a good understanding of basic Bible knowledge and Catholic history. He submitted that the applicant’s wife and two children participate closely with church activities and he regards his family as a Catholic family, including both his parents and his children. He came to Australia as a student when he was young, but endured setbacks and hardships, and is still suffering from those hardships.

6. Following the hearing, the applicant’s agent provided an email dated 19 October 2020, stating he had been instructed by the applicant to provide the following supplementary statement, as well as attached country information which is summarised in the next section of these reasons:

   According to … [the applicant], his previous protection application was completed with the help of others, including the information of the application form. In his application, he provided his real situation and family background, including the information about his studies in Australia.

   … [The applicant] has provided two supporting letters issued by [Church 2] for the purpose of testifying his faith, along with some photographs to reflect the church fellowship of his entire family.

   The main reasons for his protection visa are summarized as follows: Firstly, His fear and concern of returning to his origin due to the threat given by the loan shark creditors imposed on his entire family. Secondly, the fear of religious persecution due to his commitment and faith to Roman Catholics.

   Fearing persecution from creditors and underworld forces, … [the applicant’s] family members (parents and brother) have left their home in Fujian province and are living under anonymity in China's Guizhou province, China.

   … [The applicant’s] parents attended the local Roman Catholic house church in Guizhou, but due to the high-pressure policy from the government, normal church life could not be guaranteed, let alone the freedom to preach the Gospel … [The applicant’s] family has urged him not to return, and he fears the risks of joining the Roman Catholic Church in China. He himself said that he neither accepts nor participates in any Patriotic church in China, if he returns. He claimed that the religious situation in his origin China has yet been changed significantly and his fear of return against religious persecution remains unchanged. He also concerned about the deteriorating situation against the converts of Roman Catholic church in China under the scrutiny of China Communist Party(CCP), the intense political coercion, repression, and crack down at current stage make him more fear of return, and more vulnerable in pursuing faith in a safe environment.

   He describes his life in Australia as bumpy and difficult. His parents have accepted the Roman Catholic and preached the Gospel to him. He accepted the teachings of parents, and decided to attend Catholic community, but early met with the language barrier, he couldn’t find out a proper church to attend until January 2016, he finally engaged himself in [Church 2], and participated in the catechism study class and received baptism in April 2016 (see the baptism certificate and church support letters and photos provided).

   … [The applicant] now lives in a Catholic family environment. His wife was also baptized as Catholics. His families of four, including two minor children, are all Catholics and attend the same [Catholic] [church]. He wants to present his history to the AAT and clarify any issues left over by the Immigration department.

   Independent Country Information

7. DFAT’s most recent Country Report on China, October 2019, provides the following information regarding loan sharks:[1]

   [1] DFAT Country Information Report, People’s Republic of China, 3 October 2019.

   Loan Sharks

   3.236.  There is no comprehensive data available on short-term cash lending (including online lending), as illegitimate lenders (otherwise known as loan sharks) operate illegally. In 2017, the Supreme People’s Court ruled that courts could only accept cases involving debt collectors seeking repayment of their loans if the interest rate charged did not exceed 24 per cent. Media reports claim that, as a result of the ruling, creditors have been forced to find other ways to get their money back if the rate is higher, and reportedly often resort to physical violence and threats against borrowers. Media reports also claim that loan sharks predominantly operate online and are increasingly designing debt traps disguised as legitimate lending. In May 2019, media reported that Shanghai authorities charged 316 criminal gangs, detained more than 1,770 suspects and retrieved more than RMB 1.2 billion in loan shark victim losses during October 2019 in a crackdown on loan shark activity.

   3.237.  DFAT considers these claims plausible, but is unable to verify them, and has no further information on the prevalence of loan sharks or alleged maltreatment of borrowers in China.

8. The DFAT report contains the following relevant information regarding religion:

   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 more than 350 million religious believers in China … [the second largest group being] Protestants (60 to 80 Million, of which only 30 million are registered) … Catholics (12 million, of which 6 million are registered) …

   Government framework regarding religion

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

   organisations must be independent of foreign associations (for example, the Vatican).

   3.38. Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.
   …
   3.44.     Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

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

9. The DFAT report contains the following section on religion in Fujian:

   Religion in Fujian

   3.33.     While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

   …

   3.36.     DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country.

10. In respect of Christian practice more generally, the DFAT report states as follows:

    Christians

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

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

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

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

11. The DFAT report contains the following information about Catholicism in China:

    Catholics

    3.89.     The Chinese Catholic Patriotic Association (CCPA) has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to pledge support publicly for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.

    3.90.     In 2016, the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA. In 2018, China reached a provisional agreement with the Vatican under which Pope Francis recognised several Chinese state-appointed bishops who had been ex-communicated.

    3.91.     In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. Sources report this is no longer required in areas where the Catholic Church has built trust with local officials over time.

    3.92.     DFAT assesses Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

12. In 2014 the UK Upper Tribunal handed down a guidance case[2] which addressed the issues facing Christians in China, the information of which is consistent with that contained in the most recent DFAT report. The Upper Tribunal found that:

    In general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible…There has been a rapid growth in numbers of Christians in China, both in the three state-registered churches and the unregistered or ‘house’ churches. Individuals move freely between State-registered churches and the unregistered churches, according to their preferences as to worship. (para 137 (1 and 2))

    [2] QH (Christians - risk )(China) CG v. The Secretary of State for the Home Department [2014] UKUT 86 (IAC) (14 March 2014) Judge Gleeson; Judge King TD

13. With regard to unregistered or house churches the Upper Tribunal found:

    In general, the evidence is that the many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do. [para 137 (4)(i)]

    The evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach of fundamental human rights for unregistered churches or their worshippers. [para 137 (4)(ii)]

    … in general, any adverse treatment of Christian communities by the Chinese authorities is confined to closing down church buildings where planning permission has not been obtained for use as a church, and/or preventing or interrupting unauthorised public worship or demonstrations [para 137 (4)(iii)]

    There may be a risk of persecution, serious harm, or ill-treatment engaging international protection for certain individual Christians who choose to worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views [para 137 (4)(iv)]

14. In November 2019 the UK Home Office issued a Policy and Information Note on China: Christians[3], in which it noted the Chinese government had continued with a programme of Sinicisation of religion, requiring religions to adapt religious practices and doctrines to confirm to traditional Chinese culture and values. The Policy and Information Note concluded however that:

    2.4.12. The government of China has continued to impose restrictions on Christians, and these have intensified since QH was heard in 2013. However, the situation for most Christians has not changed significantly, with the risk of treatment amounting to persecution for expressing and living their faith still being very low. There are not 'very strong grounds supported by cogent evidence' to justify a departure from QH.

    2.4.13. However, dissident bishops or certain individual Christians who worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views may face an increased risk of adverse state interest, including harassment and detention. Public worship or expressions of a person’s faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being in conflict with its broader ethnic, political or security policies is at high risk of adverse official attention …

    [3] Accessible at type="1">

    In relation to the ordination of Catholic bishops, in September 2018, the Vatican and China reached a provisional agreement that would allow the Pope to rehabilitate seven CCPA bishops previously excommunicated in return for a veto over any future appointment by the Chinese government. During 2018, at least two underground bishops were replaced by government-approved bishops.[4] In August 2019, the first bishop since the 2018 agreement was ordained in Jining, Inner Mongolia.[5] A further 20 bishops are reportedly awaiting their appointments to be ratified by the Chinese government. The ordinations seek to end decades of animosity and estrangement between ‘underground’ Catholics loyal to the Vatican and Chinese government-sanctioned churches.[6]

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

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

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

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

    August 2019, 20190829112401

    The Chinese government has taken measures against bishops who remain unregistered and unapproved by the state.[7] During 2018 and 2019, authorities in Fujian province attended the premises of various unregistered churches and requested that they register their churches with the Chinese Patriotic Catholic Association (CPCA).[8]

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

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

    20190327101020;

    As noted above, following the hearing, the Tribunal received an email dated 19 October 2020 from the applicant’s agent, indicating that he had been instructed by the applicant to provide the following country information:

    a.An article, ‘Chinese Priest in Fujian Taken Away by the Authorities’, dated 7 April 2020, from International Christian Concern, published in article, ‘China’s Approved Churches Still Face Persecution’, dated 23 September 2020, from International Christian Concern, published in article, ‘Chinese Christian Bookseller Sentenced to Seven Years in Prison’, dated 1 October 2020, published in .org;

    d.An article, ‘Catholic persecution worse after Vatican-China deal, Congress finds’, dated 8 January 2020, from and refers to the detainment of three priests in Hebei Province;

    e.An article, ‘Religion in China: ‘It’s never been worse than it is right now,’ Congress hears’, published 28 June 2019, in article, ‘China cracks down on religion, crosses burned at Christian churches, Xi Jinping photos installed’, published by on 25 September 2018;

    g.A copy of a United States Congress House of Representatives resolution (H. Res. 493), Condemning the persecution if Christians in China, submitted by Mrs Hartzler (for herself and Ms Speier), made on 16 July 2019, published on and

    h.The applicant provided the web address for an article published in The Guardian on 13 January 2019, ‘In China, they’re closing churches, jailing pastors – and even rewriting scripture’.

    Findings and reasons

    In the present case, the applicant fears harm in China on the basis of his claimed fear money lenders from whom his parents borrowed money, and on the basis of his claimed Catholic religious faith and his claim that if he returns to China he will worship in an unregistered Catholic church.

    In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

    In relation to the applicant’s claimed fear of harm from money lenders, the Tribunal did not find the applicant’s evidence to be convincing, nor did it find his claims of fear on this basis to be credible. The applicant told the Department in the interview in December 2017 that his parents had taken out a loan of [amount] RMB in 2008, of which [amount] RMB was for his tuition in Australia. He indicated that as at December 2017, [amount] RMB of the loan remained outstanding. The applicant gave the same figure for the total loan amount as he gave to the Department, although he stated the loan for his tuition was around [amount] or [amount] RMB and indicated that at the time of the hearing in October 2020, approximately [amount] RMB of the loan still remained outstanding. This was despite his evidence at interview that his parents were continuing to pay off the loan.

    When the Tribunal raised concerns with his claim that the loan amount had not reduced in the approximately three years since December 2017, despite his parents having managed to pay off approximately [amount] RMB in the nine years from 2008 to 2017, he stated that his father was diagnosed with [medical condition] in 2017 and had not worked for the past six months. This was in contradiction to his earlier statement that his parents had worked in a factory in Yunnan Province for the past 18 months. The applicant attempted to explain that he had misunderstood the question and that he thought the Tribunal was asking him about the previous work his parents had done. The Tribunal does not find this explanation convincing, and notes that when asked what his parents do for a living, the applicant freely responded that they work in a factory. He then responded to questions about his parents’ previous employment by stating they had worked as [certain roles], and also gave details of his parents’ work while he was growing up (his father was [an occupation]).

    The Tribunal also has concerns regarding the applicant’s evidence that his parents borrowed around [amount range] RMB for his studies, which he stated was around [amount] AUD. He did not give evidence of any tuition fees paid by his parents other than his estimate of about 10,000 AUD for his enrolment in year [grade], and stated he was given only 1,500 AUD by his parents. He did not provide evidence of enrolment or fees for any other courses. When concern was raised as to why a loan of the equivalent of [amount] AUD was required, he stated that the remainder was a fee paid as a guarantee to people in China who had organised his studies for him, but he did not know who those people were. The Tribunal does not find the applicant’s evidence of such a guarantee being paid to ‘sponsors’ to be convincing. No supporting evidence of such a fee has been provided. The vagueness of the applicant’s evidence about why a loan for this amount was required for enrolment in year [grade] raises questions about the veracity of his claims. Although the Tribunal is prepared to accept that the applicant’s family may have taken out a loan in order to pay for his studies in Australia, the Tribunal does not accept that the loan was the equivalent of [amount] AUD.

    The Tribunal also has concerns regarding the applicant’s evidence of the loan taken out in relation to his parents’ business. In giving his parents’ work history, the applicant made no mention of the running of the business. The applicant has provided no supporting evidence of the existence of such a business. The Tribunal has some trouble accepting the applicant’s claim that his parents owned and ran of a shop in Guizhou City, in another province from his family home. The applicant gave evidence that the shop was purchased in 2006, and at another point stated it was in 2005, both dates being before the year he gave for the loan for this business (2008), despite his evidence at another point in the hearing that the loan was for the purpose of buying the business. At the stated dates of purchase of this business, the applicant was aged between [age range]. He gave evidence that the only place he has lived in China is at the registered address where he grew up in Fujian. The education history in his visa application declares that he studied in Fujian until 2007. The Tribunal finds it unlikely that the applicant’s parents ran a family business in Guizhou City, given the applicant provided no details of how he was able to live as a minor in Fujian without parental supervision. The Tribunal does not find the applicant’s explanation that this was ‘quite normal’ in his hometown to be persuasive.

    Even if the Tribunal were to accept that the applicant’s had taken out a large loan from loan sharks, and that part of the loan was for the purpose of the applicant’s travel and studies in Australia, I do not find the applicant’s claims regarding him being of interest to the money lenders to be convincing. On the applicant’s evidence, he has a brother who lives with his parents in Yunnan Province. The applicant stated that his parents and his brother dare not use their real names in Yunnan, but the Tribunal notes that this was raised for the first time at the hearing and the Tribunal did not find the applicant’s claim convincing. There was no evidence or any indication of harm to his brother. There is no evidence that the applicant’s parents have been harmed by the money lenders. When asked whether there were any threats or incidents involving his family, the only evidence that he gave was that the front gate of his family home in Fujian had been removed after he came to Australia, and that his family told him the money lenders were looking for him and wanted to take him hostage. The applicant was unable to explain why such an incident would indicate that he is of interest to the money lenders. He stated that it is because the money lenders could not find his parents, and so they came looking for him. The Tribunal also questioned why the taking of the gates was not mentioned in his visa application or in his interview with the Department. The applicant responded that he did not have evidence to prove it and stated that the person who came looking for him was not in China, but in Australia. He explained this is why he went to live in [City 1], as his family told him to seek refuge and he went to a ‘rural’ area where there wasn’t a large Chinese community.

    The Tribunal does not find the applicant’s explanation to be convincing. The Tribunal finds that the applicant’s claim that the front gates of his family home were removed is a new claim, and was raised at the hearing as an attempt to strengthen his claims to protection. It considers the applicant was given the opportunity to tell the delegate about such an incident, but instead referred to the kidnapping of another man from his town. The Tribunal does not consider the applicant has provided any credible evidence to establish a nexus between the taking of the gates and any plans to kidnap him or cause harm to him in any other manner. The Tribunal considers it unlikely that money lenders would go looking for the applicant in his family home in Fujian if part of the loan was for the purpose of allowing him to study in Australia. The Tribunal does not accept that the applicant was being followed in Australia by money lenders or their associates or that any questions of his whereabouts were being asked by money lenders. This evidence was raised for the first time at the hearing and the Tribunal did not find the applicant’s explanation convincing. The address information provided by the applicant in his visa application indicates he did not move to [City 1] in May 2013, approximately two years after he became aware of the issue with money lenders and after his parents moved to Yunnan. It raises questions as to how his parents were aware of the gates being stolen if they had moved to Yunnan and were afraid of returning to Fujian. The Tribunal also considers this evidence at odds with the applicant’s return to Sydney in 2015, where he has been lived in [suburbs] with sizeable Chinese communities, and has openly participated in the Chinese Catholic community in [Suburb 1] since 2016.

    In regards to his claims about his religious faith, the Tribunal accepts that the applicant has attended [Church 1] in [Suburb 1] since January 2016 and that he is a member of the church community and was baptised and confirmed as a Catholic in April 2017. In making this finding, the Tribunal notes the letters of support provided by [Father C] in December 2016 and those provided by [Father A] and [Mr B] [in] March 2020, although the Tribunal also notes that each of the letters indicate that the time of first coming to [Church 1] was given to the signatories of each letter by the applicant. The Tribunal notes the baptism and confirmation certificate provided by the applicant, dated [April] 2017, and accepts that the applicant has been accepted into the Catholic faith.

    The Tribunal has also considered the photographs which the applicant has provided to the Tribunal, as well as those provided to the Department. These photographs show the exterior of [two locations], Sydney, a service being conducted outside [a church], Sydney, a service being conducted inside [Church 1], [Suburb 1], and photographs of the applicant and members of the applicant’s family posing with Catholic clergy, including in front of the altar of [Church 1]. The Tribunal notes that none of the photographs show the applicant participating in a leadership role in the activities of the church, and there is nothing contained in the photographs or in the letters of support to indicate the applicant’s role in the Catholic Church is more than that of an ordinary churchgoer.

    Whilst the applicant gave evidence that he attended some other Catholic churches prior to January 2016, he also gave evidence that he was not able to follow the services in these churches because of his language difficulties. The applicant claimed that he was converted to Catholicism by his parents, however the Tribunal does not find this claim convincing given his parents were in China at the time, were according to his evidence also new converts, and he failed to provide any convincing details as to how such a conversion occurred, other than his claims that they were preaching the gospels to him through the telephone. While the Tribunal is prepared to accept that the applicant’s parents may also identify as Catholic and may have suggested the applicant investigate the Catholic faith, the Tribunal does not consider this to be evidence that his parents conduct activity which could be considered preaching or proselytising. The applicant stated he would respect his parents and listen to their advice, and the Tribunal considers that he did so because he is the son of his parents, rather than because his parents actively preach or proselytise. The applicant stated at the hearing that he started to believe in the Catholic faith in 2016, which coincides with his first attendance at [Church 1], and on the basis of his evidence, the Tribunal finds the applicant was not a regular church attendee or considered himself to be a believer of the Catholic faith until January 2016.

    I am satisfied that the applicant was able to discuss his faith in a plausible way during the hearing and demonstrated at least a basic understanding of the structure of the Bible, the structure of Catholic mass and frequently recited prayers within the Catholic Church. I am satisfied the applicant displayed a basic understanding of some of the core tenets of Catholic faith and that he provided some examples of how he applies his faith in his everyday life.

    The Tribunal notes the application for the Protection visa was made on 19 April 2016, less than 4 months after the applicant began to regularly attend [Church 1], and following a period of over 5 years where the applicant remained in Australia without a valid visa. The applicant was not raised with any religious beliefs, and claims that his parents were converted to Catholicism after travelling to Yunnan Province around 2011, and that slowly they convinced him over the telephone to convert to Catholicism. The Tribunal has concerns that the applicant has acquired an interest and commitment to the Catholic faith just a few months before lodging a Protection visa, and soon after his claimed interest, he lodged his visa application on the basis of fear of persecution for reasons of religion (and his evidence of a fear of money lenders, which the Tribunal has already addressed and does not find convincing). The Tribunal nevertheless accepts that, despite whatever reasons the applicant may have began attending Catholic church services, he is now an ordinary churchgoing member of his church community. There is no suggestion that he is a church leader or a leader within [Church 2]. There is no suggestion that the applicant has engaged in any political activity in Australia.

100.   The Tribunal does not accept that the applicant has engaged in preaching or public proselytising in Australia, such as would draw adverse attention from authorities in China. When asked how he preaches to others, the applicant was only able to give very general statements, such as telling people to go to church or to just believe in the Lord’s teachings and the Bible. The Tribunal does not find such general statements to be convincing or evidence of effective preaching. The applicant claimed that since the COVID-19 pandemic he has been preaching over the internet. When asked how he has done this he stated that software from his church has become available, which includes the scriptures and literature about the Bible. The Tribunal considers that such literature has been provided to church members by the parish or church as a means of maintaining their engagement during a period when attending mass in person was not possible. After further questioning, the applicant confirmed that he was not referring to ‘proselytising’ people outside the church, but those already within the church. The Tribunal does not find the applicant provided any convincing evidence of online preaching or proselytising, and based on his activity to date, does not accept that he would proselytise or spread Christian information in person or on the internet if he were to return to China. The Tribunal considers this evidence was given to strengthen his claims to protection in response to the Tribunal drawing his attention to relevant information from the DFAT country information report.

Does the applicant have a well-founded fear of persecution if he returns to China?

101.   In summary, regarding the applicant’s claim that he fears returning to China because of persecution from money lenders, although the Tribunal does not find the applicant’s evidence of his parents’ business or the amount of the loan which he claims was borrowed for his studies in Australia convincing, I am prepared to accept that the applicant’s parents may have taken out a loan from loan sharks at some point and am prepared to accept they may have taken out a loan to pay for his studies in Australia, although not of the magnitude claimed. In reaching this finding I have considered the country information contained in the most recent DFAT report, which indicates that such claims may be plausible, although DFAT is unable to verify them and has no information on their prevalence.

102.   I do not however accept that the applicant’s parents, his brother or the applicant himself have been harmed or received serious threats of harm. I do not accept that the applicant is or will be a person of interest to money lenders on the basis of a loan which has been taken out by his parents, particularly given the applicant’s evidence that between 2008 and 2017 his parents continued to pay off this loan. I do not find the applicant’s claim that any debt his parents owe has remained steady at [amount] RMB since December 2016 to be credible and consider this evidence was given to suggest that the threat from money lenders remains real and to strengthen his claims to protection. I do not accept that the gates of the applicant’s family home were removed by money lenders or their associates, or that such an act was intended as a threat to kidnap the applicant. I do not accept that Chinese money lenders looked for the applicant in Australia or that he moved to [City 1] to seek refuge from such persons. I find that the applicant’s parents and brother continue to reside in China, and this supports a finding that the applicant would be able to do so as well, with at most only a very remote chance that he would come to any harm on this basis. As such, I am not satisfied that there is a real chance that the applicant will face serious harm or significant harm on his return to China on the basis of his claimed fear of harm from money lenders.

103.   In addition, having regard to the material before me, I am not satisfied that the harm claimed is for one or more of the reasons set out in s.5J(1) of the Act. There is no claim that the money lenders are threatening the applicant because of his race, religion, nationality, political opinion or because he is a member of a particular social group. It is clear from the evidence provided by the applicant that the claimed threat or potential for harm relates to fear by the applicant that he will be kidnapped or harmed by the moneylenders because his parents have not repaid the full debt owing. This is the essential and significant reason for the harm that the applicant claims he will suffer. This is not one of the reasons enumerated in s.5J(1) of the Act.

104.   While the refugee nexus of being a member of a particular social group can have a broad application, s.5L of the Act makes it plain that each member of the identified particular social group must share a characteristic and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience the member should not be forced to renounce it or it must be a characteristic that distinguishes the group from society. The characteristic cannot be the fear of persecution. In this case, the common characteristic of the social group would be persons in China who borrow money from money lenders and who cannot repay the loans. This is not a characteristic that could be described as innate or immutable to each of the persons, but rather is based on something each member has done based on their individual circumstances. Nor can this be described as something done by the person because it is fundamental to the member’s identity or conscience. There is no evidence contained in the country information that being a victim of an illegal money lender is a feature that is recognised in Chinese society as something that distinguishes that ‘group’ from other members of the community.

105.   Accordingly, I am not satisfied the applicant has a well-founded fear of persecution on the basis of his claimed fear of harm from money lenders, as required for the purposes of the definition of a refugee contained in s.5H of the Act. In any case, I have found that I do not accept the credibility of the applicant’s claims regarding him being a person of interest to money lenders on the basis of a loan owed by his parents.

106.   The applicant’s second basis for claiming that he would be persecuted if he returned to China is on the basis of his religion. As set out above, the Tribunal finds the applicant began to regularly attend a Catholic church and practiced his Catholic faith from January 2016. He lodged his claim for protection in April 2016. He was baptised in April 2017. Given the timing of his Protection visa application and his immigration history, which includes having remained in Australia without a valid visa for a period of over 5 years, the Tribunal considers his initial motivation to attend church and become a Catholic was to strengthen his protection claims. Whatever his initial motivation, the Tribunal accepts that the applicant now attends church and regards himself to be part of a Catholic congregation. The Tribunal finds the applicant is an ordinary churchgoer and does not accept that he has preached or proselytised in Australia or that he would do so if he were to return to China.

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

108.   The Tribunal accepts that having attended a Catholic church in Australia, the applicant may seek to attend an unregistered Catholic church if he were to return to China. The Tribunal accepts that the applicant has reasons and principles as to why he would worship in an unregistered Catholic Church, rather than the State-sanctioned Catholic Church.

109.   The Tribunal is however not satisfied that the applicant’s church attendance at an unregistered or ‘family’ church in Fujian would attract adverse attention of the authorities. It finds that on the basis of his evidence, at most his religious practice has been to attend weekly mass, a Christian Rite Initiation for Adults class and to uphold the values of his faith, which he would be able to do in an unregistered church in Fujian without risk or harm.

110.   Having considered the recently updated country information regarding the treatment of Catholics in China, the Tribunal accepts that overall there has been a tightening of religious affairs in China, with an increase in state control of both registered and unregistered churches in recent years, as well as pressure for house churches to ‘sinicise’ their religious teachings[9]. However, the country information indicates that government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential networks, and that leaders of both registered and unregistered churches are subject to greater scrutiny that ordinary worshippers. It indicates that leaders who participate in protest activity are at high risk of official sanction, although this is more likely to relate to their activism than to their religious affiliation or practice[10].

[9] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraphs 3.36 and 3.78.

[10] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraph 3.79.

111.   The country information also indicates that religious practice is generally able to thrive to a greater degree in Fujian Province than in other parts of China, and that individuals in Fujian have historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as their practices do not challenge the interests or authority of the Chinese Communist Party. While the country information indicates that religious control in Fujian has incrementally tightened in line with the rest of the country, this tightening has been from a looser base.

112.   The country information also indicates that in addition to state-sanctioned Catholic churches, China’s State Administration for Religious Affairs (SARA) historically permitted friends and family to hold small, informal prayer meetings without official registration, and that while Catholics in China can experience officially-sanctioned discrimination where their activities are regarded by authorities to be politically sensitive, Catholics in general face a low risk of societal discrimination[11].

[11] DFAT Country Information Report, People’s Republic of China, 3 October 2019, paragraph 3.92.

113.   Having carefully considered the country information, including the information supplied by the applicant, the Tribunal is not satisfied the applicant, as an ordinary church goer, who previously had no religion while living in China, and has no history of activism or criticism of the government, and does not hold a position of leadership in his congregation or have an adverse profile with the authorities, will face a real chance of serious harm for reasons of his religion upon return in the reasonably foreseeable future. It accepts that he may be encouraged or pressured to join a state church, however the Tribunal does not accept that such a possible consequence amounts to serious harm in the sense contemplated by s5J(5) of the Act.

114.   As noted above, the Tribunal does not accept the applicant’s claims that he has engaged in preaching or proselytising. The Tribunal considers that this evidence was manufactured to overcome country information which does not support his claim that he will face persecution simply for his attendance at a Catholic Church in Australia, or any future attendance of an underground church in Fujian Province.

115.   The Tribunal has reviewed the articles provided by the applicant in support of his visa application. Notwithstanding the applicant’s concerns, the information in these articles is not inconsistent with the independent country information discussed with him at hearing, and in many cases is information which is also contained and summarised within the DFAT report. While the information the applicant provided included reports of the detention of a Catholic priest from Fujian Province, they contain no details of persecution directed against ordinary churchgoers in Fujian. While some of the articles refer to the demolition of churches and the removal of symbols from Catholic churches, such as statues of the Virgin Mary and crosses, this information is summarised in the DFAT report and the reported incidents are in provinces other than Fujian, in particular, in Shandong and Hebei Provinces. Some of the articles include information about significant persecution of religious believers, but refer to religions other than Catholicism, such as the article ‘Religion in China: It’s never been worse than it is right now’, which contains information about persecution of Christians generally, as well as the mass internment of Uyghur Muslims, before moving on to the treatment of Christians in other countries.

116.   Overall, the articles are consistent with the information set out in the DFAT report, which indicates that religious practice is able to thrive to a greater degree in Fujian Province than in other parts of China, that small, unregistered church or ‘family’ gatherings are able to be held, and the focus of scrutiny is on leaders of both registered and unregistered churches and those who participate in protest activity or activity which is regarded as politically sensitive. One example is the article ‘In China, they’re closing churches, jailing pastors – and even rewriting scripture’. The principal subject of this article is the detention of Pastor Wang, a pastor of the Early Rain Covenant Church in Chengdu Province. The article refers to clerics such as Pastor Wang as ‘especially alarming for authorities’, essentially because their activities are regarded as politically sensitive. The information contained in this article is summarised at paragraph 3.81 of the DFAT report, and the Tribunal does not consider the information of direct application to the applicant, given the evidence that he is a Catholic from Fujian who has not taken on a leadership role within the church and has no history of political or protest activity.

117.   The applicant has not specifically claimed that he faces persecution on the basis of his children practicing the Catholic faith, however the Tribunal has considered this possibility. The Tribunal notes information provided by the applicant that people under 18 have been prohibited from attending religious services.[12] The Tribunal notes the applicant’s evidence that his wife holds her own Bridging visa and notes the applicant’s wife and children have not been included in his claim for protection. The Tribunal has however noted the submissions of the applicant’s agent that the applicant considers his family to be a Catholic family and that his wife is also Catholic. The applicant has provided the birth certificates of his two children, who were born in [years]. The applicant has not provided baptism certificates for his children and did not claim they were baptised. The Tribunal notes that the written submission from the applicant’s agent states that his wife and children are all Catholic, but makes mention only of his wife’s baptism. The Tribunal notes that it is common practice amongst Catholic families to baptise their children when they are infants, but there is no evidence before the Tribunal that the applicant or his wife have chosen to baptise them. The Tribunal is of the view that the applicant’s children, now aged [age range], are too young to form their own intention to engage in activities of the Catholic Church in Australia or any future activities in China, and their participation is determined by their parents.

[12] Religion in China: ‘It’s never been worse than it is right now,’ Congress hears’, published 28 June 2019, in  The Tribunal finds that there is no real chance of the applicant being arrested, detained, harassed or otherwise harmed in connection with his religious activities and beliefs and/or those of his family members. The Tribunal finds that there is no real chance that he will suffer serious harm on account of his Catholic faith. For the reasons given above, the Tribunal finds that there is no real chance that he will face harm of any type, including serious harm, for reasons relating to his religious activity in Australia.

119.   The Tribunal has considered the applicant’s claims singularly and cumulatively. Given the findings set out above the Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of fear of harm from money lenders or for reasons of his religion or any other Convention related reason. The applicant is not a refugee within the meaning of s.5H of the Act.

Does the applicant meet the complementary protection criterion?

120.   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 does not accept the applicant’s claims regarding any harm which may arise from money lenders as a result of outstanding debt owed by his parents. Having accepted that he has been involved in a Catholic church in Australia since January 2016, it accepts that he may seek to participate in an unregistered Catholic church group upon return to China.

121.   For reasons set out above, there is no evidence or country information before the Tribunal indicating that his attendance and involvement in Catholic activities in Australia, or his proposed activities in an underground Catholic church in China, would result in the applicant facing a real risk of being arbitrarily deprived of his life; facing the death penalty or subjected to torture; cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

122.   Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that 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 he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

CONCLUSION

123.   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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

124.   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).

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

DECISION

126.   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.

…

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

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