1706967 (Refugee)

1706967 (Refugee) [2021] AATA 1815 (6 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706967
COUNTRY OF REFERENCE:                   China
MEMBER:Tania Flood
DATE:6 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 April 2021 at 10:59am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – abused by employer – made complaints to government – brother arrested and detained – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 9 September 2015. As the delegate held serious credibility concerns about the applicant’s claims, the delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to China, on the basis of her claims for protection.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if she returns to China for reason of her race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in her application for a protection visa, the applicant is a citizen of The People’s Republic of China. She was born in [City 1], Fujian, China. She resided at a single address in [a village] located in [City 1], before coming to Australia. Her parents, five brothers, son, and daughter reside in China. She does not have family members in Australia. She completed primary school in China. She was employed as a [Occupation 1] in China between 2005 and 2015.
She arrived in Australia [in] June 2015 as the holder of a Visitor visa (FA 600). She lodged an application for a protection visa on 9 September 2015. On 29 March 2017 a delegate of the Minister refused the protection visa application.
In a statement attached to her protection visa application form, the applicant made the following claims:
She got married in 1987 and has two children. Her husband was a migrant labourer, who worked away from home for most of the year. He left Fujian in 2005 and she has not seen him since.
She worked as a [Occupation 1] in China from June 2005 to June 2013, and from January 2014 to 2015. In January 2014, she was employed by [Mr A] and his wife, who were both officials of the [government]. She was responsible for looking after [Mr A]’s father in [a named] village and did housework.
She claims that [Mr A] ‘was an abnormal man’ and she was abused by him ‘with cold water’. As a result, she suffers from serious rheumatism. She reported the matter to the police and officials at the village. However, police and government officials did not protect her as [Mr A] and his wife had connections with the government agencies, including the police and Public Security Bureau.
She claims that [Mr A] was upset that she reported his father to the police and would beat her up. He threatened that he would accuse her of ‘mistreating [an] aged person’, and that he could ask his police contacts to put her in jail.
Her parents and brother approached [Mr A] and the police and local officials, however, this did not help her. She claims that the police or government officials threatened her family to ‘not make any troubles’. Her brothers were also assaulted by ‘gangsters of the black society’.
Between March to May 2015, she secretly went to Fuzhou City many times with her younger brother to seek help from the Fujian provincial government. She requested the provincial government to investigate the corruption of local officials and the police in her hometown. However, this was discovered by [Mr A] and the local police and officials, and she was ‘chased by them’. She fled China but her brother was arrested by the police and is now detained at [City 1] detention centre.
She fears returning to China as she claims she will be arrested by the police and ‘harmed significantly’ by corrupt officials including the police, as well as [Mr A] and his father.
Documents submitted to the Department
The applicant submitted two doctors’ letters and copies of medical prescriptions in relation to her diagnosis and treatment of rheumatoid arthritis.
She also submitted a copy and translation of an invoice issued by the Fujian Provincial government on 8 July 2012. The document indicates that [Amount 1] yuan RMB was paid to the ‘[City 1 Municipal] people’s Government’ for a ‘child support/maintenance fee by the society’.
Submission to the Tribunal
On 24 February 2021 the Tribunal received the following documents:
-    Statutory Declaration made by the applicant.
-    Supporting letter from [Church 1].
-    Medical reference by Dr [B].
-    Certificate of Believer’s Baptism as evidence that the applicant was baptized on 29 December 2019.
-    Death Certificate of [Mr C], the applicant’s husband.
-    Certificate of Cremation for [Mr C], the applicant’s husband.
In her statutory declaration the applicant provides the following additional information:
She went to school until the age of 7. She studied for just one year because her family lived in poverty and her parents had no money to support her study.
In June 2017, she met her husband in Australia unexpectedly. He was impoverished and in poor health. He told her that he was cheated to come to Australia and that later on he indulged in gambling and lost everything. During the following ten months she tried to look after him and build up his confidence but unfortunately he committed suicide in [2018]. She was badly affected by her husband’s death even though they had been separated for nearly 12.5 years.
Although her brother has been released from detention he is always harassed by the authorities. She claims she is still on the blacklist of the PSB. If she returns to China she will be arrested immediately. She will suffer significant harm from corrupt officials and the police.
She has been attending [Church 1] since June 2015 and she has become a genuine Christian. There is no freedom of religion in China. If she returns to China she must actively seek genuine freedom of religious belief and independent religious practices. In particular, she must actively encourage Christians to shake off the yoke of the Communist dictatorship. Therefore, she will be persecuted on return to China.
The letter from [Church 1] states that the applicant has been attending Sunday worship services and cell group activities at the church since 28 June 2015 to the present day.
FINDINGS AND REASONS
Country of reference
Attached to the department file is a copy of the applicant’s Peoples Republic of China passport which verifies her claimed identity and nationality. Based on this and in the absence of any information to the contrary the Tribunal accepts the applicant is a national of China.
Fear of arrest and serious harm from corrupt officials and the police, [Mr A] and his father
When the applicant appeared before the Tribunal she repeated her claims to have been employed by [Mr A] to care for his father between January 2014 and June 2015. She also repeated her claims to have been physically mistreated by [Mr A]’s father during the period of her employment. Notwithstanding this, on the available evidence the Tribunal has concerns about various aspects of her claimed mistreatment by [Mr A] and his father for reasons which are explained below.
During the hearing the applicant introduced additional claims in respect of the claimed mistreatment she endured. Whereas her written claims and oral evidence to the delegate, which is set out in the decision record before the Tribunal, only ever indicate she was subjected to “torture with cold water”, her oral evidence to the Tribunal is that she was physically mistreated in various other ways by [Mr A]’s father. For example, she claimed that she was also hit in the face with a remote control, suffered cuts to her feet, which required medical treatment, when a glass bowl was thrown at her and was kicked in the back by [Mr A]’s father. The Tribunal considers such incidents would have been quite traumatic and is concerned that the applicant made no mention of this abuse in any of the evidence presented before the Tribunal hearing.
During the hearing the applicant also explained the various steps she took to complain about the mistreatment she endured. She said that she complained to the village officials and the local police before going to [City 1] and Fuzhou with her brother. The Tribunal acknowledges her account is broadly consistent with her written claims with the exception of the claimed visit to [City 1]. When asked who she complained to in [City 1] she said it was a government organisation or legal organisation but she doesn’t exactly know the name. She said that when she told the officer in [City 1] what happened to her she was advised by the officer that [Mr A] happened to have been in the office the day before. She said it was obvious they knew who [Mr A] was and there was no solution provided. The Tribunal considers a decision to escalate her complaint to the [City 1] level to be a significant omission from her written statement of claims. In the Tribunal’s view the omission of this relevant piece of information is compounded by the fact her evidence is respect of which office she visited in [City 1] was also vague.
During the hearing the Tribunal put it to the applicant that her written claims omit much of the detail provided in her oral evidence. The Tribunal also pointed out that her lengthy oral account of the events which occurred in China made no mention of the written claim that she was chased by the police when they found out she had been to Fuzhou to complain about the situation. The applicant did not address the Tribunal’s observation of the omitted details in her response. She merely stated that it was her brother who was chased as she was always at work in the home of [Mr A]’s father.
The Tribunal notes the applicant claims to have had only minimal schooling in China due to her family being poor. The Tribunal has considered whether her lack of education accounts for the fact her written statement of claims omits many of the significant details raised in her oral evidence during the hearing. However, the Tribunal notes that the decision record of the delegate indicates that her oral evidence at the time of the protection visa interview is generally consistent with her written claims and also does not indicate that any prior mention was made of the claimed events introduced during the Tribunal hearing. The Tribunal is not satisfied that the applicant’s claimed illiteracy accounts for the late introduction of these relevant facts as when presented with the opportunity to elaborate on her claims before the delegate she did not do so.
The Tribunal also finds other key aspects of the applicant’s claims difficult to accept. For instance, based on her oral account of events she and her family complained to the police and various government officials about her mistreatment over the course of almost one year and during all that time she remained living and working in the house of her abuser. The Tribunal put it to the applicant that it is difficult to accept that she remained working for her employer for that length of time given the serious physical harm she claims to have endured including being sprayed with a high pressure water hose on about seven occasions. Furthermore, the Tribunal pointed out that her evidence indicates [Mr A] was aware of the steps she took to complain about him and his father to various levels of government and that it also difficult to accept that he did not dismiss her from her employment because of this.
The applicant responded that she could not resign because [Mr A] organised for people to go to her family home to smash up their property and beat her son and her brother. She said that she could not leave her job because if she did her family would continue to be treated like that. She made no reference to her written claim that [Mr A] threatened to report her for mistreating an aged person if she continued to complain about her situation. As to why [Mr A] did not also fire her and find another employee she said that his father wanted her and [Mr A] wanted to satisfy his father.
As discussed with the applicant during the hearing the Tribunal finds the applicant’s reasoning troubling. The Tribunal considers the applicant would have sustained serious physical injuries as a result of being sprayed with a high-pressure water hose and the Tribunal finds it implausible that she would have remained in her employment for such a lengthy period of time in the circumstances. The applicant claims she endured the lengthy mistreatment because she feared what would happen to her family members if she left and yet she left China regardless in the knowledge of what would happen to them. Also, the Tribunal finds it implausible that [Mr A] did not fire the applicant when she complained about him to various levels of government. If the applicant’s claims are to be believed [Mr A] is wealthy and it appears he could easily have engaged the services of another person to care for his father even if for some peculiar reason his father might have preferred to retain the applicant despite his claimed aggression toward her and his propensity to want to harm her.
During the hearing the applicant also stated that she was denied a temporary resident permit which would have enabled her to escape [Mr A] and his father by moving to another town in China. She said it was then that she learnt her name had been placed on a blacklist. When the Tribunal pointed out that she did not previously mention being denied a temporary resident permit or attempting to relocate she said that she was not asked the question before. The Tribunal put it to her that Q93 on the application form for a protection visa asks whether a person moved or tried to move to another part of their country to seek safety and in answering “please refer to my statement” she did not address this question as her statement makes no mention of this. She replied that she is illiterate and didn’t know much about what information was required and was only asked about relocation during the interview with the delegate. That said, the Tribunal notes that the decision record indicates that the reason given during the protection visa interview for why she could not relocate in China was because of the cost involved and not for reason of being denied a temporary resident permit or being placed on a blacklist.
The Tribunal also put it to the applicant that her ability to depart China freely being a blacklisted person is also highly improbable based on country information relating to China’s entry and exit procedures[1]. She replied that a temporary resident permit is issued by the village committee to relocate but a pass is not needed to leave China. While the Tribunal accepts this might be the case the country information nevertheless indicates that China has sophisticated surveillance technology in place at major airports to enable detection of persons flagged by the authorities. That the applicant was able to depart China without hindrance, despite claiming to have been placed on a government blacklist, causes the Tribunal to further doubt the veracity of her claims.
[1] DFAT Country Information Report, China, 3 October 2019, (Exit and Entry Procedures)
As to why only the applicant departed China when it appears her brother was also involved in taking the matter up with higher level officials she said that it was the intention that they both would leave China but only she managed to get a visa. She said her brother told her that he would try to join her later but after she left he was arrested and detained for about six months. When asked what he is doing now she said that he is working in the local area as a tractor driver.

The Tribunal has considered the applicant’s responses but notes that during the hearing the applicant stated that after she and her brother visited the Fuzhou authorities her brother’s friend was present at a dinner attended by [Mr A] and other government officials. She said that her brother’s friend overhead a conversation in which [Mr A] and others discussed having them arrested. The applicant states that her brother was only arrested some time after she came to Australia and the Tribunal considers it is surprising in the circumstances that he remained in the local area after being forewarned he would be arrested.
Notwithstanding the above, the Tribunal put it to the applicant that if her brother is able to remain working and living in the area now there might not be a reason for her to fear returning there either. She said that people still come to her home to bother the family and that on New Year’s Eve people smashed the glass in the home again. She said that if she returns [Mr A] might fear she will report him. The Tribunal put it to the applicant that her evidence is that due to his influence nobody did a thing about any of her complaints against [Mr A] while she was in China and it is therefore difficult to see why he would have any cause to fear her return and/or to continue harming her family. She responded that the national government is now punishing corrupt officials. If the applicant’s claims are to be believed it has long been on the record that she complained to various levels of government about [Mr A] and his collusion with local authorities in refusing to address her complaint and yet it is not claimed he has encountered any problems with higher level authorities thus far. It is therefore difficult to accept that he would encounter problems with the authorities for the same reasons many years after the fact despite the renewed interest by the national authorities in weeding out corruption.
The Tribunal has also considered another matter which in its view also calls into question the applicant’s general credibility. The decision record indicates that the applicant was previously refused a Tourist Visa in 2010 on the basis of providing false and misleading information and that she denied all knowledge of this during the interview with the delegate. The Tribunal discussed this with the applicant during the hearing and she then said that when she was working for another family in China they once asked her to give them her passport without explaining why. She said she handed over her passport without question and also said nothing when they gave it back to her. She said that after the interview with the delegate she called her previous employer to enquire about this and was informed that they had applied for a visa for her to accompany their mother to Australia. She said she knew nothing of this at the time.
The Tribunal has considered her response but finds it implausible that her employer would take such action without first asking her if she was able or willing to accompany their mother to Australia. Even if her employer had acted with such arrogance the Tribunal finds it highly unlikely that the applicant would have handed over her passport without ever thinking to ask why it was needed even if she is illiterate as was claimed in response to this concern. The Tribunal has concluded that the applicant has retrospectively invented this story in order to overcome the credibility concern expressed by the delegate in the decision record. The Tribunal considers this raises further concerns about her credibility.
The Tribunal has considered the available evidence about the events which are claimed to have occurred in China and the applicant’s responses to issues discussed with her during the hearing. The Tribunal is prepared to accept that the applicant might have been employed by [Mr A] to care for his father between January 2014 and June 2015. Based on the medical evidence before it the Tribunal also accepts that the applicant suffers from rheumatism.
However, due to the credibility concerns expressed above and the late introduction of various relevant facts including other forms of serious physical harm, her complaint to officials in [City 1], her thwarted attempt to obtain a temporary resident permit to relocate to another area; the implausibility of her remaining in the employ of [Mr A] for a lengthy period of time given the claimed degree of mistreatment and her efforts to report him to various levels of government; her ability to freely depart China despite allegedly being placed on a government blacklist; and her brothers continuing residence and employment in the area where it is claimed he was detained and is continually harassed, the Tribunal does not accept the applicant has been truthful in her evidence and the remainder of her claims are rejected.
The Tribunal does not accept that the applicant was physically harmed and tortured by either [Mr A] or his father or that her rheumatism was caused by being tortured with cold water. The Tribunal does not accept that she or any of her family reported such mistreatment to the police or any government officials in China. The Tribunal does not accept that [Mr A] threatened to report her and have her arrested for mistreating an aged person or that the applicant’s family were threatened, had their property destroyed or that the applicant’s brothers and son were physically assaulted in connection with her actions. The Tribunal does not accept that the applicant’s younger brother was arrested and detained for six months due to his role in the claimed events. The Tribunal does not accept the applicant attempted to obtain a temporary resident permit in order to attempt relocation in China or that she has been placed on a government blacklist. It follows that the Tribunal does not accept the applicant will be arrested if she returns to China, harmed by corrupt officials or [Mr A] or his father for the reasons claimed or that she would make a complaint against [Mr A] or his father in the future for the reasons claimed.
In view of the above the Tribunal does not accept that there is a real chance the applicant will suffer serious harm if she returns to China on account of anything that transpired in the course of her employment with [Mr A] and/or his father.
Fear of harm due to Christian religion
During the hearing the applicant stated that she believed in Christianity in China but never attended a church as she was always busy working. When asked about her acceptance of the faith she said she came to believe in Christianity after her neighbours talked to her and spread the good news with her.
The applicant stated that she started attending church in Australia almost immediately after her arrival. She could not state the name or the address of the church but said it is a Christian church and that she has continued to attend the same church until now. When asked why she commenced attending church services she said that she had just arrived in Australia and had no family or friends. She said she noticed a church vehicle and approached the people for some help and they took her to the church.
The Tribunal asked the applicant what it means to her to be a Christian. She replied that she believes in God and she has human rights and freedom of speech. When asked what she knows about Christian beliefs she said she believes in the grace of God and spoke about how her health has improved due to her religious beliefs. She said that she feels safe and that God is looking after her. She added that she feels she has a family in the church whom she can rely on for help. The applicant was able to correctly answer the Tribunal’s questions as to how Jesus Christ died and the significance of his death, namely that he was crucified in order to wash away sin.
The applicant informed the Tribunal that she attends church every Thursday and Sunday. When the Tribunal pointed out that she told the delegate she was only attending church occasionally she said that was the case then because of her ill-health whereas now her health has improved. The applicant stated that she attends gatherings on Thursdays where they get together for a pray meeting. She said the pastor gives a speech and then they pray for various issues. She said that on Sundays she attends a service where the pastor gives a sermon and they sing hymns.
The Tribunal notes the applicant has produced a letter from [Church 1] which supports her claim to have been regularly attending the church since 2015. The Tribunal referred to Mr [D], the author of the supporting letter provided by the Church and asked how she knows that person. She said he is one of the administrative staff of the church and she met him in the gatherings. She said she does not speak with him often but the church keeps a register of who attends services. Upon further questioning she said that this record keeping started as a result of the COVID-19 pandemic. When asked how Mr [D] can confidently know she attends church regularly she said it is because she always goes to church and all the people know her.
The applicant confirmed that she was baptised on 29 December 2019. When asked why it took so long for her to be baptised she said that because she is illiterate it is very hard for her to get to know the bible. She said that because the pastor observed her attendance at church for many years he said she was qualified to be baptised. She said that baptism represents her commitment to follow God for the rest of her life. When asked what took place during the baptism ceremony she said that it was a group baptism involving about twenty people and many people prayed for them. The applicant was asked whether she participates in any other church activities and she mentioned helping to clean up the church.
The applicant was asked how much she knows about the situation for Christians in China. She said that she thinks there is no religious freedom in China and she doesn’t want to go back there because she is afraid of the Chinese Communist Party (CCP). She said she believes she will be arrested and that the CCP will interfere with her ability to practice her faith.
The Tribunal pointed out to the applicant that there are reportedly millions of practicing Christians in China and she responded that they are not allowed to spread the good news to other people. She said that in Australia she can tell anybody around her about her Christian beliefs. When asked if she spreads the good news in Australia she said she does. When asked how she said that she talks to people who can understand her language. Upon further questioning she said that she talks to people she works with if they are willing to listen to her.
The Tribunal asked the applicant what she tells those people about Christianity and she responded that she tells them that believing in God will ensure they are saved and no longer lonely. She said she tells them about her experience being an “orphan” in Australia and how the church is a big family. She said she also tells them about how her health has improved by believing in God.
Noting the statements contained in her statutory declaration provided to the Tribunal the applicant was asked how she intends to go about encouraging people to shake off the yoke of the CCP. At first she said that it is very hard to do that and that she will also be under the yoke of the CCP. She then repeated her belief that there is no religious freedom in China and she dares not to go back to China. She could not and did not identify any ways in which she might achieve this stated intention.
The applicant confirmed to the Tribunal that she in unaware that there are both registered and unregistered churches operating in China. The Tribunal explained that many Christians in China attend registered churches which are sanctioned by the government and asked why she could not do the same. She offered no objection to this suggestion and merely said that spreading the good news is not allowed in China.
The applicant’s representative stated that [Church 1] do not issue letters to just anybody. He said they have a strict management system and only support people who are genuine believers. He said the pastor normally consults the organisers of the Thursday gatherings to enquire if a person is considered a genuine believer. He said that the applicant is a genuine believer and she likes to talk to people around her about Christianity. He said that she cannot do that safely in China. He encouraged the Tribunal to contact the Pastor if it remained uncertain about the genuineness of the applicant’s faith. For the reasons which follow the Tribunal accepts the applicant is a Christian and did not feel the need to make further enquiries with the applicant’s Pastor about the genuineness of her beliefs.
DFAT’s most recent country information report[2] provides the following in respect of religion:
[2] DFAT Country Information Report, China, 3 October 2019
China is a religiously diverse country with a rich and complex society of faiths and Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth centre and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
In 2018 the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity.
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. This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism and religious believers total almost 200 million. The white paper estimates there are 6,000 Catholic churches and places of assembly and 60,000 Protestant churches and places of assembly. 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 which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China – 60-80 million Protestants of which 30 million are registered.
On religion in Fujian, DFAT states that religion is generally able to thrive to a greater degree in Fujian province. 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 CCP. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country.
DFAT’s report goes on to state that the conditions governing the establishment of religious bodies and religious sites, the publication of religious material and the conduct of religious education and personal 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 RRA’s devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations.
The 2018 RRA’s ‘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).
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions and can be inconsistent or lack transparency, making it difficult to form general conclusions.
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).
DFAT assesses an individuals ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.
While the Constitution and 2018 RRA allow for sanctioned religious beliefs, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups – face 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.
On Christians specifically DFAT reports that there has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches and harassment and imprisonment of Christian pastors and priests.
Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered and unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice.
DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.
During the hearing the Tribunal discussed a summarised version of DFAT’s key assessments with the applicant. She acknowledged the greater focus on church leaders but reiterated her claim that she is on a blacklist due to the complaints she allegedly made against her former employer. She said that her religious beliefs will exacerbate the problems she will face in China. As can be seen above, the Tribunal has rejected the claims in respect of her former employment.

The applicant demonstrated only a basic knowledge of Christianity but the Tribunal acknowledges her lack of formal education and limited ability to read the bible could be a reason for this. The available evidence indicates she has been baptised and attends a Christian church on a twice-weekly basis. The Tribunal accepts this. While not without some doubts, the Tribunal is prepared to accept that the applicant is a Christian and that she takes comfort from her church community. The Tribunal is prepared to accept that she might want to continue going to church in China for these reasons.
The above country information indicates that the Chinese government has tightened its control over religious institutions including state-sanctioned churches in recent years. However, DFAT nevertheless states that broadly speaking it is possible to practice one’s religion in China within state-sanctioned boundaries as long as practices don’t challenge the interests or authorities of the Chinese government. Despite some tightening up occurring in Fujian Province as well it appears that a person’s ability to practice their religion in that province remains greater than in other parts of the country. Overall, it appears that leaders and clergy members are still likely to attract more scrutiny than ordinary parishioners.
As noted above the applicant was informed during the hearing about the existence of state sanctioned, registered churches in China and she gave no indication that she would be unwilling to attend a registered church. Instead, her testimony focused solely on her inability to safely spread the good news in China. There is no convincing evidence before the Tribunal to indicate that the applicant could not or would not be able or willing to attend a registered Christian church in China.
The applicant currently observes her Christian faith by attending a weekly prayer gathering and church service. Despite claiming she would be compelled to promote religious freedom by encouraging Christians to shake off the yoke of the communist party if she is required to return to China she offered no further explanation of what she would do or how she intends to do this and when asked to expand on the claim she could not. The Tribunal concluded she had given it no thought at all and her evidence did not persuade the Tribunal that she would in fact embark on such a path. The Tribunal has formed the conclusion that she introduced this statement late in the proceedings in order to strengthen her claims for protection.
The Tribunal is satisfied that if the applicant returns to China she will continue to observe her faith by attending weekly church gatherings and that she could do this in a registered church in Fujian province. The Tribunal is satisfied that the applicant’s religious practice would not challenge the interests or the authority of the Chinese authorities or the CCP and that her mere attendance at registered church services as an ordinary parishioner and not a church leader, will not attract adverse attention from the authorities or place her at risk of serious harm.
The Tribunal has considered the applicants claim that she would not be able to spread the good news in China. Based on the evidence given at hearing the only manner in which the applicant spreads the good news is by occasionally talking to people she feels comfortable to communicate with and with whom she is closely connected, such as work colleagues. She gave no other examples of any activity she is currently engaged in to spread the good news or to proselytise. The Tribunal considers that if she returns to China, at best she would replicate this behaviour on occasion and that she won’t proselytise in a public manner that would put her at risk of harm by the authorities. Relevantly, the Tribunal notes DFAT’s reporting that the 2018 RRA’s appear to allow a degree of proselytising albeit within (but not outside) registered places of worship and in private settings (but not in public).
The Tribunal has not dismissed the reporting which indicates there has been an intensification of efforts to control religious practices in China, however it nevertheless appears that an individual’s ability to practice their faith is influenced by a person’s individual practice of their faith. The Tribunal also finds it significant that despite religious controls intensifying since 2018 millions of Chinese Christians are reportedly continuing to practice their religion in China and with a greater degree of freedom in the applicant’s home province in Fujian. Having carefully considered the country information and the applicant’s current and likely method of observance of her faith the Tribunal is not satisfied that there is a real chance that she will face serious harm in China on account of her Christian religion.
Other Claims
Rheumatism
The applicant claimed before the delegate that she cannot afford medical attention and treatment for her rheumatoid arthritis and that she will die if she does not receive treatment. Her most recent evidence in this respect is a letter from Dr [B], Consultant Rheumatologist dated 20/2/21 which confirms her diagnosis and indicates she will likely require lifelong treatment which to date has included medication and injections on occasion. Dr [B] does not suggest that she faces any imminent death because of her condition.
During the Tribunal hearing it was put to the applicant that DFAT reports[3] that high-quality public health care is available in the main urban centres in China but she said that only government officers can claim money spent on medicines and see doctors for free. She said that she is from the countryside and has a rural hukou. The Tribunal considered her response and concedes that DFAT also reports that health care in rural areas is of a lower standard and public provision is patchy and that China’s unusually high household savings rate partly reflects the historical need for families without urban hukou to save for health costs.
[3] DFAT Country Information Report, China, 2019
The Tribunal accepts the applicant’s evidence that she is from a rural family. However, based on the available evidence her family assisted her in the past to get money together to fund her travel to Australia. During the hearing she also said that her family are barely making a living. Despite this her evidence is that her adult son is working as a truck driver and she has five brothers, four of whom are farmers and one is employed as a tractor driver in China. Despite that her family members might not be wealthy, it nevertheless appears that her son and five brothers are earning an income and could also assist her financially if required. Also, despite her condition the applicant’s evidence is that she also continues to work as a [Occupation 1] in Australia and there is no evidence before the Tribunal to support that she could not continue to work on return to China, at least for the foreseeable future. The Tribunal is not persuaded that the applicant will lack the financial means required to ensure she gains access to the required level of medical treatment, which currently includes some medication and occasional injections, for her rheumatism in China. The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm or die on return to China for reason that she will be unable to access medical treatment for her rheumatism.
Unpaid Fines
It has also been claimed that the applicant will not be able to pay a penalty incurred by her son for breaching China’s family planning policies. In support of her claim the applicant submitted to the department a copy and translation of an invoice issued by the Fujian Provincial government on 8 July 2012. The document indicates that [Amount 1] yuan RMB was paid to the ‘[City 1 Municipal] people’s Government’ for a ‘child support/maintenance fee by the society’. The invoice is dated 8 July 2012 and the payers’ names are recorded as [named].
When the matter of the fine was discussed with the applicant during the hearing she said that her daughter-in-law was forcibly sterilised and her son incurred a fine of [Amount 2] RMB. The Tribunal put it to the applicant that the fine is the responsibility of her son and that it is difficult to see why she would be harmed in connection with this situation. She said that while she was in China she helped her son to pay a portion of the fine ([Amount 1] RMB) and that as she signed for that payment she will be held liable for the remaining payments.
Even if the applicant paid the amount of [Amount 1] RMB, which the Tribunal notes is not evident from the available documentation, there is no evidence to support that this means she has an ongoing liability to pay the balance of the fine which was issued to her son and daughter-in-law. During the hearing she said that her former employer’s father, [Mr A], has an uncle who is a government cadre in the village committee and he will ensure she has to pay the remaining fine. As noted in the above findings, the Tribunal does not accept that [Mr A] caused the applicant any harm in the past on account of the former employment relationship and the Tribunal can see no reason why he would use his influence to cause her any harm in the future.
Based on the available evidence the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to China in connection with an unpaid fine which was issued to her son and daughter-in-law.
Can’t support children
The applicant also claimed before the delegate that she has two children in China and she needs money to support them. Based on her evidence to the Tribunal the children are aged [age] and [age], are both married and have [children] of their own respectively. The Tribunal considers the applicant’s children have reached adulthood and have long lived independently of her. The Tribunal is not satisfied that any financial difficulties they may have in their lives is the responsibility of the applicant. While she might wish to be in a position to provide them with financial support any inability she may have to do that on return to China is not in the Tribunal’s view likely to cause her serious or significant harm.
Husbands family and lack of male protection
During the hearing the applicant referred to her chance meeting with her long-estranged husband in Australia in 2017 and the Tribunal asked her how this is relevant to her claims for protection. She said that because he died in Australia his family will blame her for his death. The Tribunal pointed out that her evidence is that her husband abandoned her in 2005 and it has not been claimed that his family ever harmed her in China for any reason. The Tribunal put it to the applicant that it seems improbable that she would be blamed for his death and potentially harmed just because her husband died in Australia. Based on the available evidence and in the absence of any claimed threats from the family of the applicant’s husband to substantiate her fears, the Tribunal is not satisfied that there is a real chance the applicant will be harmed for this reason.
The applicant also said that if she returns to China she will be without a husband and she will be bullied by people for this reason. The Tribunal again pointed out that the very same situation existed for years before she departed China as her husband had left her in 2005. The Tribunal also considered the inference that this is what lead to her being bullied in her employment in China but as noted the Tribunal rejects those events occurred as claimed. In any event, the Tribunal does not accept the applicant will be vulnerable to bullying due to having no male protection as her evidence is that she has an adult son and five brothers in China.
The Tribunal is not satisfied that there is real chance the applicant will suffer serious harm in China on account of the fact her husband travelled to Australia and met his death here or because she will be vulnerable to bullying in China on account of having no male protection there.
CONCLUDING PARAGRAPHS
For all the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. She is therefore not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that the applicant will suffer significant harm in the form of arbitrary deprivation of life, the death penalty, torture or being subjected to cruel or inhumane treatment or degrading treatment or punishment. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

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

[2021] AATA 1815

6 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice