1701688 (Refugee)

1701688 (Refugee) [2021] AATA 3023 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1701688

COUNTRY OF REFERENCE: China
MEMBER:Linda Holub
DATE:21 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 21 June 2021 at 2:48 pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Catholic – imputed political opinion – opposition to government corruption – land resumption – physical assault – attacks by gangs hired by police – arrests – unregistered Catholic church – Catholic school education – contacts with the underground church overseas – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 January 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of China, applied for the visas on 4 December 2015. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations. The delegate found that that the applicant’s claims were not credible.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Country Information

The Department of Foreign Affairs Country Information Report on the People’s Republic of China 3 October 2019 contains the following information relevant to the applicant’s claims.

10. In respect of the security situation, the Report states:

2.55 Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.58 Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans).

11. In respect of religion, the Report states:

3.28 China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
3.29 In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
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 (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).
3.31 The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China,
National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000
Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China
Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.
3.31 In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.
Religion in Fujian
3.33 While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
3.34 Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia
through trade and shipping.
3.35 Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).
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. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.
3.39 Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD,and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed
SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949.
3.40 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to
authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.
3.41 The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.
3.42 According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.
3.43 The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).
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 nonrecognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
3.45 Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.
3.46 Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.
3.47 Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shando g, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.

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.
3.49 While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

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. Relevant extracts from the Department of Home Affairs Thematic Brief: Religious Policy: Implementation of Revised Regulations on Religious Affairs (Protestants & Catholics), People’s Republic of China, Country of Origin Information Services Section (COISS), 6 September 2019 state that:

Estimates of China’s Catholic population range between 5.7 million and 12 million of which an estimated half affiliate with the state-sanctioned Chinese Catholic Patriotic Association (CCPA). Official and unofficial estimates of the Catholic population are generally more consistent compared to the Protestant population. The discrepancy between official statistics and expert estimates is attributed to the Chinese government not recognising unregistered Christian unaffiliated with state-sanctioned churches.
Reportedly, there are 91 government approved religious schools in China, including nine Catholic schools. In 2018 Chinese state media reported that China has 61 registered Catholic bishops. An independent media source reported in September of that year that China has more than 37 independent Catholic bishops.
Successive decrees and regulation pertaining to the management of religious affairs in recent decades have effectively placed limits on religious freedom in China in a bid to preserve regime stability. The growth of the Christian population, particularly the sharp increase in the Protestant population in recent years, has further heightened Party concerns about foreign infiltration through religion. The current religious regulations extend the state’s tightening over religious affairs. The regulations are in line with the state’s shift on religious affairs that occurred with the issuance of Document 6 in 1991.
President Xi gradually introduced sinicisation policy in order to co-opt groups within civil society thathold alternative ideologies to those of the Party.
Sinicisation of religions is underpinned by management of religious affairs according to the rule of law– the religious regulations.73 The restructure of government bureaucracy means the Party’s United Front Work Department, traditionally used to co-opt adversaries for the benefit of the Party, has the authority to implement religious policy at the central and provincial/local government levels.
Reportedly, the Chinese government perceives the growth of Christianity as a threat to the Party’s legitimacy. This fear is coupled with the Party’s view that organisations within civil society that are capable of amassing and mobilising large numbers of followers are a threat to the Party.

Coinciding with the revised religious regulations, reports indicate that some religious leaders and
Christians have been arrested or detained. However, the number of arrests is small in comparison to
the size of the overall Christian population that has been estimated to be well in excess of 100
million.141 In April 2019, the US Commission on International Religious Freedom reported that during
2018 the government ‘intensified its crackdown on Protestant groups that refused to join the state-run
Three-Self Patriotic Movement’. The report says that ‘religious freedom advocates’ report that ‘more than 5,000 Christians and 1,000 church leaders were arrested in 2018 because of their faith or
religious practices’. However, ‘most of the arrests were short-term detentions that did not lead to
criminal charges’.142 The report says that ‘house churches that were not shut down faced increased

restrictions on their ability to conduct religious activity’ during 2018.143

BACKGROUND

13. The main applicant was born in Fujian, China in [year]. According to his application, he attended the local school before being sent to boarding school. The applicant first came to Australia in [March] 2008 to study and according to his application he has completed various courses in Australia.

14. The applicant married [Ms A] in Australia in January 2015 and had two children [names and birth years] who are the secondary applicants in this claim. Since the initial application for protection the applicant and his wife, have had [additional] children – [named].

15. The applicant is a Chinese national and according to the Department of Home Affairs does not have rights to settle in a country other than China.

Migration history

16. The Department’s Decision Record sets out the applicant’s migration history. He arrived in Australia [in] March 2008 as a holder of a [Student visa]. He applied for a further [Student] visa on 15 March 2010 and was granted an associated Bridging A visa. On 15 June 2010 he was granted his second student [visa] which was valid until 3 May 2014. Department records and the delegate’s Decision Record indicate that he made two trips [to China] from November 2010 to January 2011 and then December 2011 to February 2012.

17. On 28 February 2014 the applicant applied for a further [Student] visa, on which date he was also granted an associated Bridging visa A. His application for [this] Student visa was refused on 5 May 2014. He sought a review of that decision by the Migration Review Tribunal which affirmed the decision of the delegate on 13 October 2014.

18. The applicant’s Bridging visa A ceased on 19 November 2014 and he remained in Australia unlawfully for 1 year and 20 days until he was granted a Bridging visas C in association with his Protection visa application. The primary applicant currently remains in Australia as a holder of a Bridging C visa.

Protection claims

19. In his Protection visa application, the applicant made the following claims:

·His mother was a devout Roman Catholic as she came from a Roman Catholic family. His father also became a Roman Catholic after he stayed with his mother. His parents belonged to the Roman Catholic Underground Church (the underground church) and thus both he and his sister were baptised by a priest of the underground church after they were born.
·He started to attend [Church 1] shortly after he arrived in Australia in March 2008. He claimed that since then he has attended the Roman Catholic Church regularly most of the time.
·His wife was not originally a Roman Catholic, but he persuaded her to attend the church with him since they lived together in 2014.
·In November 2015, his mother’s relatives were beaten up by the “[Gang 1]” gangsters who were employed by the local officials when his mother’s intended to protect their farmland and trees which had been occupied by the local authorities to build a bridge. His mother and a distant relative of his mother’s, [Relative A], had to organise farmers to protest against the local authorities, demanding the government respect the basic human rights of farmers, protect their farmland, make corrupt officials as well as those gangsters of the “[Gang 1]” be punished according to the law. They also requested the government provide reasonable compensation to their relatives who had been seriously injured.
·His mother and [Relative A] were accused of organising “anti-government” activities through ‘illegal’ religious organisations. As a result, they were arrested by the Public Security Bureau (PSB) and were in custody at the time of his Statutory Declaration.
·Implicated by his mother's case, his father and sister were interrogated by the PSB several times. During the interrogation, my father and sister were treated inhumanly by the police.
·His father had a good friend [Friend A] who once saved his father's life in an accident and therefore, his father always regarded [Friend A] as his best friend. When he was very young, his father arranged a marriage between him and [Friend A’s] daughter [Ms B] according to the customs in our hometown.
·He left China for the first time and arrived in Australia in March 2008. His father wanted him to study English and accept advanced education and his father also expected him to marry [Ms B] one day in order to keep my father's agreement with [Friend A]. However, he was not willing to do so because he regarded her as his sister in his heart and in Australia, he got to know [Ms A] around October 2008. They both fell in love with each other shortly after that they started living together in November 2008. He was caught in a dilemma because he very much wanted to stay together with [Ms A] permanently, but he was not willing to make his father break his promise to [Friend A].
·Around July 2012, he decided to leave [Ms A] for the time being because he suffered more and more from pressures from his father and [Ms A]. Unexpectedly, after we were separated, [Ms A] found that she had been pregnant. On [date], their first [child] was born in Australia and in April 2014, he and [Ms A] began living together again. [In] January 2015, their marriage was legally registered. On [date], their second [child] was born in Australia.
·He believes that his wife, two [children] and he must be implicated by my mother's case, just like hid father and sister, if they have to go back to China.
·Furthermore, he does not think that there is genuine freedom of religious belief in China. He believes that a genuine Roman Catholic like him must be subject to persecution in China. As a matter of fact, his mother has previously been arrested and detained by the PSB because she has protested against the authorities that has demolished by force the cross on the top of the Catholic Church in his hometown.

20. The applicant attended a Department interview on 15 August 2016.

Nationality

21. Attached to the Department’s file are certified copies of the applicant’s passport which verify his identity and nationality. In the absence of any information to the contrary the Tribunal accepts, for the purpose of this review that the applicant is a citizen of China.

22. Similarly, in the absence of any information to the contrary the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

23. At the first hearing the applicant stated that the secondary applicants have Chinese passports but that he did not have them with him. At the commencement of the second hearing, the Tribunal asked the applicant about the passports of his [children]. He responded that at the previous hearing he had mistakenly said that they had passports. He stated that he had a passport for his third [child] because he was asked by immigration to provide [the] passport in respect of [that child’s] visa. He stated that he was not asked for the passports for his eldest [children] and therefore he had not applied for passports for the secondary applicants.

24. The Tribunal is prepared to accept that the applicant’s [children] are citizen of China and do not have a right to enter and reside in another country.

CONSIDERATION OF CLAIMS AND EVIDENCE

Summary of claims and evidence

25. The issue before the Tribunal is whether the applicants are owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

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

27. The Tribunal has before it the Department’s file relating to the applicants’ visa application and the Tribunal’s file in relation to the review application. The Tribunal has also given consideration to the delegate’s decision record and evidence presented by the applicants at the hearings.

EVIDENCE PROVIDED AT HEARING

28. The applicant appeared before the Tribunal on 26 April 2021 and 24 May 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages. The applicant was represented by his migration representative who attended the hearing. The Tribunal did not seek to take oral evidence from the second and third named applicants as they are minors.

Evidence provided at the first hearing – 26 April 2021

29. The applicant stated that he came to Australia to study. He first studied the English language and did some [specified] courses including [subjects]. He did not return to China when he finished. He begs forgiveness for not doing so. He stated that it has tortured him. He said he made mistakes when he was young. He stated that he was unlawful because his father borrowed money from relatives so he could go abroad to study. He needed to work to help his father to repay his debt, but he did not send back the money.

30. The Tribunal put it to him that by remaining unlawfully in Australia he had breached Australia’s migration laws. He acknowledged this and stated he has been regretful, and he should not have done so. Nevertheless the Tribunal takes a dim view of the fact that the applicant flouted Australia’s migration laws.

31. The applicant confirmed information in his written application that his mother was a devout Roman Catholic and he was brought up as a devout Roman Catholic. He stated that he met his wife in 2008 in Sydney in [a named location] when he was about to meet his friend. He was [age] at that time and she is two years older. The applicant stated that they started living together in November 2008. The Tribunal asked how he reconciled this with his claims of coming from a devout Catholic family. He responded that he admitted when they were young, and he was not as affirmed and persistent in his religious beliefs at that time.

32. The applicant stated that his wife was a Christian before she became a Catholic in April 2014. In May 2015 she started attending catechism class. Previously she was baptised but not submerged. He stated that they had a discussion with a priest whether her previous baptism would be recognised. The applicant stated that his wife started attending church in 2014 because he persuaded her to attend Catholic church with him. When asked why she did that in 2014 given his claim that he had been attending his church since 2008, he responded that he persuaded her at that time as they had a child.

33. The applicant stated that his wife also came to Australia in 2008 on a student visa. She is from [a named] town in Fuquing city. She sought and was refused a Protection visa. She subsequently sought review by the then Refugee Review Tribunal and the Department’s refusal decision was affirmed. The applicant’s migration representative explained that the applicant’s wife currently holds a Bridging visa E because of the children.

34. The applicant denied there is that a link between his wife’s take up of Catholicism and the decision by the Tribunal in February 2014 to affirm the Department’s refusal of her visa application.

35. The applicant confirmed his written claims that he started going to [Church 1] in April 2008. He stated that he found out about the church through a colleague at his workplace. The applicant stated he was not working officially. It was only part-time. His student visa allowed him to work up to 20 hours per week.

36. The applicant confirmed that until 2016 the church did not keep records of attendance. The Tribunal referred to the applicant’s letters of support and discussed these with him. The Tribunal explained to the applicant that under the Migration Act it must disregard actions that an applicant engaged in that was for the purpose of strengthening their protection claims.

37. The letter from [Leader A] dated 22 March 2021 states that the applicant has been regularly attending Chinese Catholic Mass since April 2008. It states that the date of the applicant’s first coming to [Church 1] was provided by the applicant. The Tribunal put this to the applicant to which he responded that as there were no previously no records in the church this person cannot remember everything.

38. A letter from [Mr B] who is one the members spreading the Gospel. The letter which is dated 1 April 2021 states that the applicant as born in the Roman Catholic family. It refers to a number of events run by [Catholic Community 1] including in 2017, 2018 and 2019. It states that the applicant has been a member of the [Catholic Community 1] Scripture Reading Group since 2016.

39. The Tribunal put it to the applicant that the letter only refers to activities he was involved in from 2016. It makes no reference to him attending services before that. The applicant stated that he went alone, and he just attended the mass and left. The applicant confirmed that the reference in the letter that he was born into the Roman Catholic family was based on information provided by him to the writer.

40. The letter from [Friend B] of 23 March 2021 states that the writer has known the applicant and his wife since 2016.

41. [Father A] provided letters dated 6 August 2016 and 22 March 2021. The August 2016 letters states that the applicant is a Catholic and is now a member of the Catholic Chinese Community at [Church 1]. It also states that the applicant has been attending [Church 1] since April 2008 and often attends mass and other activities. The March 2021 letter states that the applicant has been regularly attending Chinese Catholic Mass since April 2008. It states that the date of the applicant’s first coming to [Church 1] was provided by the applicant.

42. The letter from [Mr C] dated 21 March 2021. It states that the applicant and his family are active participants and contributors to the [Catholic Community 1]. It states they are highly dependable, friendly and always willing to help others. No date was supplied in respect to the family’s involvement in the [Catholic Community 1].

43. A letter from [Person A] dated 10 April 2021 states that the writer has known the applicant since he has been coming to the church but does not refer to when that was. The letter refers to the applicant’s faith and states that he keeps the precepts and is enthusiastic and dedicated and does not miss any prayer.

44. Letter from [Father B] dated 7 August 2016 states that the applicant has been attending [Church 1] since April 2008. The letter states that the date was provided by the applicant.

45. The Tribunal pointed out that some of the letters state that the applicant has been attending church since 2008 including the letters from [Person C] dated 7 August 2016 and 1 April 2021. The Tribunal is concerned that the applicant may have provided the 2008 date to [Person C] as he did to the some of the other persons who provided statements of support.

46. The Tribunal put it to the applicant that there is nothing in that written evidence that substantiates his involvement and attendance in the church in Australia since 2008. The Tribunal explained to him that it makes the Tribunal question whether his involvement was more recent and that he did not attend since 2008. He stated that the Tribunal can confirm this with [Mr C], because he was the one who introduced him to the church. The Tribunal referred to the letter provided by [Mr C] and put it to him that [Mr C’s] statement does not state when the applicant commenced attending the church. The applicant acknowledged that the letter does not refer to a date.

47. The applicant stated that he does not have any corroborating evidence that he attended the church from 2008 aside from those statements. The Tribunal explained to the applicant that it would put little positive weight on claims made he attended from 2008 because of the evidence provided by him that no records were kept of attendance and that the statements provided by [Person C] are the only ones which state that the applicant attended church since 2008. The others specifically state that he advised that he commenced in 2008.

48. A letter from [Person A] provided to the Department states that the writer sees the applicant and his wife since at [Church 1] every Sunday and meets them at play group after the mass. It is dated 8 August 2016.

49. A letter dated 5 August 2016 from [Mr D] states the writer has been involved in the [Catholic Community 1] for more than 20 years and at the time of writing was the group leader of the Mass Reading Group of which the writer states the applicant was a member of. The writer states that he has known the applicant since January 2015 and makes further comments about the applicant’s involvement in various activities.

50. The applicant was asked why he would be targeted by authorities if he returned to China. In response, the applicant stated that his mother was involved in a protest in November 2015 because the land of her relatives were affected by the building of a bridge in [a named location]. When his mother’s relative tried to obtain compensation did not receive a satisfactory result, about 100 villagers protested. They requested the government obey human rights.

51. In relation to how this incident relates to the applicant, he stated that his mother was accused of anti-government because of religious activities. She was accused of this because most of these people protesting were members of the Roman Catholic Church (RCC). The applicant stated that he wanted to emphasise that the RCC is not recognised by the government. He stated the true RCC was established by Jesus.

52. The applicant also stated he would be harmed if he returned to China because he would have severe disagreement with the Chinese government because of his religious beliefs. When asked why he would you

53. The applicant stated that he believes that RCC was established by Jesus Christ according to Bible. The applicant referred to Bible references in regard to Jesus Christ and the rock and the establishment of the church on the rock. He stated that even in death this cannot change. He went on with further references about Jesus being given the key to heaven.

54. The applicant stated that this is the Catholicism he believes in. He stated that the Chinese registered church is in the name of the state. He stated the Catholic Church is governed by the bureau and the Chinese Catholic Patriotic Association He stated that in these so-called churches, there are people involved that are not even baptised.

55. The Tribunal put it to him that it understands he has concerns regarding the way authorised churches are governed in China, but he had not elaborated on how their governance affects his ability to maintain his own beliefs and teachings from the Bible.

56. The applicant responded that the church in China is run by the Chinese Government and the churches he believes in are run by the Vatican and there is a conflict with his belief. The Tribunal asked the applicant in what way would he practice his faith differently if he went back to China. He stated that when he goes to mass in Australia there about 200-300 in attendance but in China that number would be impossible in the underground church. When asked why he would be unable to attend a mass that’s offered as part of official Catholic church, the applicant again referred to conflict between what he believes and the governance of registered churches. He stated that it is definitely different because in Australia the church is administered by the Vatican but that the church in China is managed by the Chinese Communist Party (CCP).

57. The Tribunal put it to him that based on his evidence so far, the difference would be the number of people attending and that the church is run by the CCP and not by the Vatican. The applicant responded that the Vatican church is administered by the successors of the disciples and they are blessed by the Pope and that their role and certification and their duties are given by the lord and holy orders. He stated that in the of church in China, there are even people who are allowed to administer who are not baptised.

58. The applicant stated that his claims also relate to his freedom of religious beliefs and he believes he has the freedom of choice to attend any church in Australia. He stated that his claim in also in relation to his children and their religious beliefs.

59. The applicant stated that his children attend a Catholic school in Australia. He stated there is no such thing as a Catholic school in China. He stated that if his children go back to China, they won’t be able to study in Catholic school.

60. The applicant stated that if he returns to China, he will try to contact the churches in Australia. He stated that it will be impossible for him to cut his contact with the Catholic church. When asked why he would do so, he responded that he would have to talk about his mother’s case. The Tribunal asked him what the connection is with his mother’s case. He responded that it was because the government accused her mother illegally organising a religious group and doing anti-government activities. He would get in touch with the underground church because of the Chinese government.

61. The applicant stated that because of what has happened to his mother he fears it will happen to him. He responded that if he goes back to China, it will be impossible to attend similar activities to what he attends here. When asked if there anything else he fears, he again responded that he cannot accept the Chinese church in China.

62. The Tribunal referred to his visa application in which he stated that he believes that he and his wife and [children] will be implicated by my mother's case, just like my father and sister, if they have to go back to China. He responded that it is the key point. He stated that in her mother’s case, it reflects the religious issues in China. As a true Roman Catholic if he goes back to China and organises activities it will challenge the Chinese government. He stated that if he goes back to China, he will spread genuine Catholic culture. The true Catholic Church was established by Jesus himself. He stated it is under the management of the successor of apostles. He stated it does not belong to any party to decide religious matters. He will definitely challenge the core interest of Chinese government Chinese Communist Party. The applicant stated that if he is asked to attend the registered church, he will not attend any registered church because it does not belong to the Roman Catholic church. He stated that if he is genuinely Roman Catholic, he will be saved spiritually but it is not possible in the registered church.

63. The Tribunal asked the applicant how he would challenge the core interest of Chinese government Chinese Communist Party. He stated that he will organise activities, just like those organised in [Church 1]. He will spread the word to people around him what is the genuine catholic church because it is inherited from the apostles. The Tribunal asked the applicant if he has been involved in proselytising. He stated that the best example is that he persuaded his wife.

64. The Tribunal asked the applicant if he held any fears in relation to his mother’s protest in 2015. He responded that he does because it relates to religious persecution.

65. The Tribunal asked the applicant what activities his mother now organises in the underground church. He responded they don’t have many people. He stated every Sunday they take turns in hosting others to pray the rosary. He stated his mother is an ordinary member. He stated their members are very few, so they are not monitored closely and have not been persecuted. He stated they have not had any problem with the police.

66. The applicant stated that his mother has not had any problem with the police since November 2015. She was released in 2016 after being detained for two and a half months.

67. The Tribunal referred to paragraph 13 of his claims which refers to the applicant’s father and sister Interrogated many times by the PSB. He stated that the last time they were interrogated was in January 2016. Prior to that they were interrogated on 24 November, 13 November 2015 and in January 2016. On each occasion, his father was beaten by police and asked him about his mother’s activities. His father told the PSB that they don’t respect basic human rights. The applicant stated that his sister was also interrogated on the same occasions. When she was interrogated the policeman used cigarette butt on her because she told the police they are only trying to advocate the basic rights. The applicant claimed that his parents were subsequently monitored.

68. The applicant stated that after they were released his family have been monitored until now. He stated that is mother told him the police come and check on them. The Tribunal referred to the applicant’s earlier evidence that his mother’s underground church group is not monitored. He responded that the group meets at different houses and they do it secretly. He stated that it is impossible to worship openly. He stated there are about 15 people in the group although the number is not fixed. He stated it is possible to monitor a small number of people. He stated that although his mother is an ordinary member, she organises meetings.

Evidence provided at the second hearing – 24 May 2021

69. The Tribunal referred to comments made in the Response to Hearing Invitation form which indicated that the applicant was of the view that significant mistakes were made by the interpreter at his first hearing. The Tribunal asked the applicant to explain those mistakes. He responded that he felt that the interpreter did not interpreter his meaning clearly. He referred to persecution of his mother and family. He stated they did not get arrested but they were monitored. The Tribunal responded to the applicant that it had understood that he had provided oral evidence that his family were being monitored until today. On that basis, it appears his evidence had been interpreted correctly and it does not appear a mistake had been made. The Tribunal asked the applicant if there was anything further. He stated that his migration representative had made some notes which he showed the applicant. He stated that there maybe there was some confusion about “arrest”. He said that his representative can explain. The migration representative stated that in the latter part of the hearing there was a discussion about interrogation and the word used was arrested.

70. Given the applicant’s concerns regarding the interpreter services provided at the first hearing the Tribunal sought clarification regarding his family’s arrest and / or interrogation. The applicant stated his mother protested the taking the land of her relatives by the government. She was arrested and held from [a day in] November 2015 until [a day in] February 2016. He stated that his mother had previously been involved in a protest in 2000 when a cross was removed from the local church. She had no problem with authorities between that time and the protest in 2015.

71. In relation to whether his father and sister were arrested, the applicant stated they were taken away and interrogated. The Tribunal asked him to clarify whether they were not arrested or not. In answering, he stated that interrogation and being arrested meaning the same thing. The Tribunal explained they were very different and expressed its concern that he made claims in his application pertaining to such matters and was now indicating that he did not know the difference between them. The Tribunal asked him if he would like the terms explained to him. He responded that that he understands them. The Tribunal then proceeded to ask the applicant what happened when his father and sister were taken away. He gave evidence that his father was beaten and his sister when taken away and interrogated. He stated that she was beaten, and a policeman used a cigarette to burn her skin.

72. The Tribunal sought clarification from the applicant regarding which of his mother’s relatives were beaten by “[Gang 1]” gangsters referred to in his visa application. He stated it was his [Relative A] and other male cousins. He stated they had trouble from “[Gang 1]” gangsters because of what happened in November 2015. [Relative A] who he called uncle, was about to go to [a location] to do his normal job when people from [an agency] came in relation to the acquisition of their land for the construction of the bridge.

73. The Tribunal asked the applicant if he was making any claims of harm from “[Gang 1]” gangsters if he were to return to China. He stated that those “[Gang 1]” gangsters are hired by police. He stated that because he is related to his mum he could also be harmed. The Tribunal asked the applicant why the “[Gang 1]” gangsters would be interested in him. He responded that his mother was a member of underground catholic church in China and he has been a member of the Catholic Church overseas and he thinks this is an issue for him.

74. The applicant stated that he is afraid that if he goes back, he will be influenced by his mother’s case and the Chinese government will go after him and he will be arrested. He stated that maybe he will be not be persecuted for that reason but could suffer religious persecution because he has lived in Australia for more than 10 years. The applicant was asked why the Chinese government would care of he lived in Australia for ten years. He responded that the Chinese government may be concerned that he may have connections with the Catholic underground church. The Tribunal asked he applicant what it is about his profile, background that would be a concern to the authorities. He stated that there could be concerns that he has connections that could be used to undermine the authority of the State. The Tribunal asked the applicant if he was making a new claim. He asked why it was a new claim. The Tribunal explained that he had not previously made any reference to potential concerns that he may have contacts within the underground church overseas and the possible use of the connections.

75. The Tribunal asked the applicant to clarify if he was claiming that the Chinese government will think he has connections with the underground church and that he may use those connections to undermine the Chinese government. He responded he has been overseas for a long time and he definitely has a connection with the overseas church because of his mother.

76. The applicant stated that if he returns to China, he will try to preach of real teachings of the Roman Catholic Church.

77. The Tribunal asked the applicant why the police need to hire a gang to do its work. He responded that the engineers were about to build a bridge and there were protests. The Tribunal put to him that this does not explain why the police would hire gangsters. He responded that he does not understand why he would be asked this question. The Tribunal explained to him that it was because he made the claim and that in coming to a decision, the Tribunal needs to understand his evidence. He responded that he cannot explain why the police would do so and he does not understand why he is being asked.

78. The applicant confirmed that he did not fear any harm if he returns to China because he did not marry [Ms B] and instead married [Ms A].

79. The Tribunal put it to the applicant that it must consider if his involvement in the Catholic Church in Australia was for the sole purpose of strengthening his claim to be a refugee. The Tribunal explained to the applicant that it was concerned that he became involved in the Catholic church in Australia to strengthen his claim to be a refugee and he do so in either 2014 or 2015. He stated that he did not attend the church to strengthen his claim. He stated that already in 2010, he heard about Protection visas but as a Catholic he would not want to apply for this visa until 2015 when the incident involving his mother occurred. He added that if such things did not happen, he would have thought about going back to China. He stated that it was still OK to be an underground church believer. He explained that he was younger at that time and has learnt many things about Australian culture and religious freedom.

80. The Tribunal sought clarification in relation to comments that the applicant made during the first hearing that he would have to “talk about his mother’s case”. He stated that he had only discussed her case with his wife and his migration representative. He confirmed that he was not claiming he would attempt to promote in his mother’s case if he returned to China.

81. The Tribunal discussed the written evidence provided by the applicant with him.

82. In relation to photographs of a church being demolished, the applicant stated that it was built before 2000 with funding from the villagers. He stated that when the holy cross was taken down it became a registered church and his family no longer used the church. He stated that when the church was demolished his family was sad to see they church gone because they were involved in its construction before 2000.

83. In relation to photographs of a group of people standing on a ramp near some water the Tribunal explained that it accepts that a group of people are standing on a ramp near some water but the photograph does not provide probative evidence that his family were arrested or interrogated or tortured.

84. In relation to photographs of persons who had been beaten, the applicant explained they were [his specified relatives] who had been beaten. The Tribunal explained that the photographs are not dated and not annotated. Further, the Tribunal explained that while it accepts the photographs shows people who have been beaten it could give them no weight as it is not clear to the Tribunal who was beaten, by whom, when or where.

85. In relation to a document which purports to describe the protest, the applicant explained that it was written by a villager and posted online on the person’s [social media] page.

86. The applicant stated that all the evidence submitted is true. He stated that his family did not take photos. They were taken by other people and then provided to them.

87. In relation to the YouTube videos of the applicant at church the applicant explained that the video was taken during the Covid-19 pandemic when there were restrictions on the number of people that could be in attendance and the YouTube videos allowed more people to participate in the mass remotely.

Witness evidence

88. The applicant stated that he knows the witness from the time he worked [at a work place]. He stated that his English name is [specified]. He stated that his house mate introduced them because he was looking for work [Mr C] had an ad for a weekend casual. He stated this occurred in the first or second weekend of April 2008. [Mr C] was the boss [at the work place]. The applicant stated that he called [Mr C] and said he was going to apply and asked about the work. He also asked about the wage and location. He started a few days later.

89. The applicant stated that [Mr C] introduced him to the church. He stated that as a Catholic he prays before he has a meal. [Mr C] noticed him praying and asked him if he was a Christian/a Catholic. The applicant stated that he responded he was and explained that he had just arrived in Australia and asked [Mr C] to recommend a church.

90. The applicant stated that he often met [Mr C] at [Church 1]. He stated they used to see each other at the [work place] when they worked together in 2008. The applicant stated they rarely meet outside the church because they are both busy.

91. The Tribunal referred to the period the applicant lived outside Sydney. He stated he lived in Newcastle in 2019 until 2020. Initially he was living without his family but when his wife was pregnant, she moved there with their children. He stated that in Newcastle he sometimes attended [another named] church which was right near the school his [child] attended. He stated that he didn’t always go to that church because he went to [Church 1] where he read the bible.

92. The applicant stated that in the period he lived in Newcastle, he did not attend the local church very often because he and his family mainly went to [Church 1]. He stated they departed Newcastle at 8.00 am in time to attend the 11.30 am mass at [Church 1]. The Tribunal asked him if his witness [Mr C] would have seen him at the 11.30 am mass in [Church 1]. He responded they got to see each other at [Church 1] but because [Mr C] was quite busy, he does not always attend.

93. The applicant’s witness, [Mr C], confirmed that he is commonly known as [another name]. He stated that he works in [an industry]. He stated that he came to Australia in July 2003 when his whole family migrated to Australia. He was [age] years old at that time. He is married and has [number] children aged [ages].

94. The witness gave consistent evidence regarding the timing and manner in which he met the applicant.

95. The witness confirmed he is a Catholic. He stated that he attends [Church 1] almost every week. He stated that he consistently attends the 11.30 am mass

96. The witness stated that he is aware that the applicant lived in Newcastle for a period. The Tribunal asked him whether he saw the applicant at [Church 1] on a regularly basis. He responded that he did not. He stated that the applicant rarely attended the church on Sundays during that time

97. Following the departure of the witness the Tribunal put information to the applicant under the provisions of s.424AA of the Migration Act. The Tribunal explained that the inconsistent evidence provided by the applicant and his witness with respect to his attendance at [Church 1 variant] while he lived in Newcastle might raise doubts about other aspects of this evidence and may lead the Tribunal to question his credibility. The applicant chose to respond in writing after the hearing. He was given until 31 May 2021 to do so.

Post hearing written submissions

98. On 31 May 2021 the Tribunal received post hearing submissions from the applicant which included a Statutory Declaration from [Mr C] dated 30 May 2021 a further letter from [Father A] dated 26 May 2021.

99. [Father A’s] letter stated that the applicant has been regularly attending the Chinese Catholic Mass, which is celebrated every Sunday at [Church 1] since April 2008. He stated that the applicant has joined the lectors group in our community and that the applicant’s dedication and cultivation of his stronger faith is evident throughout the years through engaging in our community's pastoral group activities, such as Advent and Lenten retreats, to participating in the [specified] processions and many other activities.

The Tribunal puts significant weight on [Father A’s] letter of March 2021 in which he wrote that the date of the applicant’s first coming to [Church 1] was provided by the applicant.
[Mr C] provided oral evidence at the applicant’s second hearing. In his Statutory Declaration he declared that he made a mistake about the applicant’s attendance at church during the period the applicant lived in Newcastle. He stated that since he migrated to Australia in 2003, he normally attended [Church 1]. He declared:

“So, I gave positive answer when I was asked about my attending church at the Tribunal hearing. However, at the Tribunal’s hearing, I forgot changes of circumstances between 2019 and 2020.

In 2019, I was very much busy and had to spend most of time [at the work place]. So, I seldom attend the church. In 2020, people are Mass were normally divided two parts owing to the pandemic of Covid-19. One part was at [Church 1] for the people who could attend Mass on time. The other part was in a hall about 6-7 meters away from the main church, for the people who were normally late. As I was too busy to arrive in the church on time, I normally attended Mass in the hall separated from the main church. In these special circumstances, I seldom met [the applicant] at church through he insisted on attending church when he was in Newcastle between 2019 and 2020. Unfortunately, I forgot changes of these circumstances”.

The Tribunal has concerns regarding the claims made by the witness in the post hearing submission. Firstly, the Tribunal does not accept the witnesses claims that he forgot his changed circumstances of 2019 and 2020. No explanation was provided as to why the witness had forgotten that but would be able to remember how and when he met the applicant in 2008 given that was more than 13 years ago. Nothing in the Statutory Declaration explains his selective memory.
Furthermore, the Tribunal has had regard to the fact that the explanation provided by the witness contradicts evidence provide by the applicant regarding the witness’s attendance Mass during 2020. At the hearing the applicant stated that during the period he lived in Newcastle, because [Mr C] was quite busy, he did not always attend mass whereas the witness’ post hearing statement states that in 2020 because he was normally late in arriving, he would have to go into the hall for mass rather than the church itself. This contradiction raised credibility concerns in regard to the oral evidence provided by the witness in support of the applicant and the Statutory Declaration only served to further undermine the evidence provided.

Findings

The Tribunal is prepared to accept that the applicant grew up in a Roman Catholic family. However, given the Tribunal concerns regarding the evidence provided, the Tribunal does not the applicant’s claims that he attended [Church 1] on regular basis since he arrived in Australia in 2008.
The Tribunal finds that the original motivation for attending church was to provide a basis for his claims for protection. The Tribunal has come to this finding following its consideration of the evidence provided by the applicant in support of his claims. In relation to the written statements, where there is a reference to the timing of his involvement in the church and the [Catholic Community 1] that was not provided to the declarants by the applicant, they refer to his involvement from 2016. That year coincides with the lodgement of his Protection visa application in December 2015. The Tribunal has not put weight on statements in which the writers state that the date of April 2008 was provided to them by the applicant.
In relation to the letters that refer to April 2008, the Tribunal finds that the date was provided to the declarant by the applicant. The Tribunal considers that it is not unreasonable to assume that the applicant provided the people who wrote letters of support with the information regarding the time at which he first started attending [Church 1].
As noted above the Tribunal has significant credibility concerns regarding the oral evidence provided by the applicant’s witness at hearing regarding his commencement date. On that basis the Tribunal does not accept the oral evidence that the applicant has been attending [Church 1] since April 2008.
Notwithstanding the Tribunal's findings about the applicant's initial motivation for joining a Roman Catholic congregation and his involvement in church activities since then, the Tribunal accepts that that the applicant has regularly attended church since late 2015 / early 2016, has been a regular participant in church activities and activities of the [Catholic Community 1] and that he is regarded by his friends and members of the clergy as a genuine and committed Catholic.
The Tribunal is prepared to accept that the applicant’s mother was involved in a protest in 2000 following the removal of a cross on a church and again in 2015 regarding the acquisition of land. However, the Tribunal does not accept there was a connection between this and her religious activities at that time. The Tribunal accepts the applicant’s mother was arrested and detained because she was accused of anti-government activities and that his father and sister were interrogated and beaten through illegal religious organisations. The Tribunal is of the view that having engaged with the [Church 1] in late 2015 or early 2016 the applicant has sought to link his mother’s involvement in a land acquisition protest with her religious activities to bolster his claims for protection.
In any event, the Tribunal does not accept that the applicant would be harmed in any way if he were to return to China because his family were involved in a protest related to land acquisition in 2015. The Tribunal has had regard to the fact that the applicant gave evidence that his family has been monitored since that time. However, the Tribunal gave significant weight to his evidence that his mother has not had any problems with authorities since 2016 when she was released. Furthermore, the Tribunal has had regard to the fact that it is now over five years since those events, the applicant was out of the country before and since the protest and he provided no plausible reason as to why he would be a person of interest in that regard.
The Tribunal does not accept that the applicant would be harmed because he has a severe disagreement with the Chinese government because of his religious beliefs because the Tribunal does not accept that he “will spread the word to the people around him that the true Catholic church is inherited from the apostles”. The Tribunal makes this finding on the basis that he has provided no evidence that he has been involved in any religious activism in Australia. Also, the Tribunal notes that he provided no evidence that his family is involved in religious activitism in China. The Tribunal notes that the applicant claimed that he persuaded his wife to become a member of the Catholic church. Nevertheless, the Tribunal considers that persuading a person in a marital relationship is entirely different to becoming involved in religious activism: particularly in a country like China where such activities would likely bring the applicant to the attention of authorities. Furthermore, nothing in the applicant’s evidence persuaded the Tribunal that he would become an activist if he returned to China. He did not refer to any specific activities on how he would spread the word to the people around him that “the true Catholic church is inherited from the apostles” or provide any details on how he would do this.
The Tribunal accepts that the applicant believes there is a conflict between his beliefs and the Chinese Catholic Patriotic Association (CCPA). The Tribunal has had regard to the fact that he did not articulate how this would inhibit his ability to practice the fundamental tenets of the Catholic faith and worship accordingly, despite the Tribunal providing him with several opportunities to do so.
The Tribunal accepts the applicant would attend the underground church rather than an officially sanctioned church as his family has done and continue to do according to the applicant. The Tribunal also accepts that the numbers with whom he would worship would be far less than when there are 200-300 attending weekly mass in Australia. No evidence was presented by the applicant that it is a basic tenet of the Roman Catholic faith that a person’s worship or practice is diminished when undertaken in smaller size gatherings. The Tribunal has had regard to the oral evidence and the video links the applicant provided in relation to the conduct of mass at [Church 1] when Covid-19 restrictions in place. They show and he described the fact that there were few people in attendance during the period. This suggests that he is able to worship satisfactorily without being surrounded by several hundred people. For these reasons, the Tribunal finds that if the applicant attends services with smaller number of other believers in China that this does not constitute serious or significant harm.
The Tribunal finds that the applicant does not face a real chance of harm if he were to attend the underground church and did not engage in politically sensitive activities based on its reading of the independent information on the underground Catholic church in China. The Tribunal acknowledges that the Chinese government has tightened religious controls in the past few years. The Tribunal also acknowledges that the DFAT report advises that it difficult to provide exact figures on the number of religious believers in China, but China’s 2018, white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief states that 6 million follow Catholicism and other independent sources put the estimates of China’s Catholic population range between 5.7 million and 12 million of which an estimated half affiliate with the state-sanctioned Chinese Catholic Patriotic Association (CCPA). Given these numbers and given the Tribunal does not accept the applicant would undertake activities that are politically sensitive, the Tribunal has put weight on DFAT’s assessment and finds that the applicant would not suffer serious or significant harm based if he returns to China and participates in the Chinese underground church.
While the Tribunal accepts that the applicant would have greater freedom of religious beliefs in Australia then in China, his claims regarding his religion specifically pertained to Catholicism. Therefore, the Tribunal does not accept that because he would have greater religious freedom in Australia then if he were to return to China that this constitutes serious or significant harm.
The Tribunal accepts that it would be difficult for the applicant’s children to attend a Catholic school in China. Regardless, no reason was set out by the applicant that they would not be able to maintain their Catholic beliefs if they return to China. Indeed, according to his claims he was raised as a Catholic and did not attend a Catholic school. The Tribunal finds that the fact of the applicant’s children not being able to attend Catholic schools does not constitute serious or significant harm.
The Tribunal does not accept that the applicant will be harmed by members of “[Gang 1]” gangsters if he were to return to China. He made no claims of his mother or family having problems with these gangsters since 2016. In addition, it is now over five years since those events. Furthermore, he was out of the country before and since that period and he provided no plausible reason as to why he would be a person of interest by the “[Gang 1]” gangsters. In any event, the Tribunal found the applicant’s claims that the gangsters are hired by police as far-fetched and implausible. The Tribunal has come to this view on the basis of information contained in the 2019 DFAT County Report on China regarding the internal security arrangements in China as set out in the section outlining country information.
The Tribunal does not accept that the applicant would be at risk of harm because he has been a member of the Catholic Church overseas or because he has lived in Australia for more than 10 years or that the Chinese government may have concerns that he has connections that could be used to undermine the authority of the State because of his contacts within the underground church overseas. They were late claims made towards the end of the second hearing and were unsubstantiated. When asked whether he was making a new claim he merely questioned why it was a new claim and repeated the claim. Nothing in the applicant’s evidence regarding his profile or background would indicate that he would be a person of interest for these reasons. Therefore, the Tribunal does not accept that the applicant is at risk of harm because he was a member of the Catholic Church overseas or because he has lived in Australia for more than 10 years or that the Chinese government may have concerns that he has connections that could be used to undermine the authority of the state because of his contacts within the underground church overseas.
The Tribunal does not accept that the applicant is wanted for any reason if he were to return to China. The Tribunal does not accept that he is a person of interest to Chinese authorities or “[Gang 1]” gangsters.
On the available evidence the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, or for any other reason, either now or in the reasonably foreseeable future, if he returns to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. Therefore, he does not satisfy the criterion at s.36(2)(a) of the Act.
The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports 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 that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, he does not satisfy the requirements of s.36(2)(aa) of the Act.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) and cannot be granted the visa.

DECISION

The Tribunal affirms the decision not to grant the applicants protection visas.

Linda Holub
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

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

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.
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.
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.
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.
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.
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

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.
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.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3023

21 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice