1709870 (Refugee)

1709870 (Refugee) [2020] AATA 1270 (28 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709870
COUNTRY OF REFERENCE:                   China
MEMBER:Anne Grant
DATE:28 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 28 April 2020 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – Local Church member – Shouter – designated as a ‘xie jiao’ organisation – persecution under the guise of Chinese criminal law – whether law of general application – application of law in a discriminatory way – selectively enforcement against Local Church members – credibility assessment – level of knowledge of faith – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
NAVZ v MIMIA [2015] FCA 13
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 12 April 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 11 January 2017. The delegate refused to grant the visas on the basis that she did not accept that the applicants were members of the Local Church (though she did accept that they are Christians), and found that there was not a real chance that they would suffer serious harm in China on account of their religion or for any other reason. The delegate also found that there was not a real risk of significant harm if they were returned to China.
The first applicant is a Chinese national who was born in [Fujian] Province, in the People’s Republic of China on [date].[1] Her husband, the second applicant was born in [Fujian Province], in the People’s Republic of China on [date] The pair met while in Australia and were married [in] October 2016 in Melbourne.[2] The couple have a son [who] was born in [Victoria], on [date].[3] The child is the subject of a related application for protection also before me, based on the claims of his parents. A separate statement of reasons for decision will be made in the child’s case (Case number 1709871).
[1] [Department file number], f. 89.
[2] [Department file number], ff. 94, 98.
[3] [Department file number], f. 99.
The first and second applicants attended a hearing on 13 February 2020 and gave evidence separately. The hearing was assisted by an interpreter in the Mandarin language. The hearing was held contemporaneously with application number 1709871, the applicant’s [son]. The applicants were represented by their migration agent who participated in the hearing by telephone conference.
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.
The issue in this case is whether the applicants are refugees and, if not, whether there are substantial reasons for believing that there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of being returned to China.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first applicant’s written claims for protection were as follows:
·The first applicant’s father was not religious, but members of her extended family were, and from an early age she attended a local house church.[4] The second applicant’s family is Catholic.
·The first applicant claims that her family owned a small [business] and in 2009 were opposed to an expropriation plan by the local government, which the first applicant claims led to an increase in antisocial behaviour around the [business], as well as harassment in the form of “regular inspections” by the Industrial & Commerce Bureau and the Taxation Office. The first applicant claims that her family later learned that these inspections were triggered by the authorities’ displeasure that the family would not sell its land to the government. The applicant’s family suffered economically as a result and could no longer support the applicant’s study expenses in Australia.
·The first applicant quit her studies in 2010 and began working but was fired following an industrial accident. At this time, her family asked her to return to China to help them earn money and informed her that they had arranged a marriage, but she refused as she had no interest in carrying on her father’s business and did not want to live the same way her parents did.
·The first applicant attended some local church gatherings in Australia but stopped attending after other unlawful non-citizen church attendees were detained by the Department and placed in detention. Afraid she would suffer the same fate, the applicant stopped attending church and moved to a remote area and keeping a low profile.
·In 2014, the first applicant moved to Melbourne and met her husband. They decided to get married, but the first applicant’s family didn’t agree to their relationship because her husband’s family were Catholic, and she claimed they could not afford the huge dowry asked for by her family. Both families further did not support the applicants’ faith and did not bless the union, and the applicants claim not to have told their parents about their son, believing that if they were to return to China, their families “were sure to take every opportunity to break up [their] marriage.” Nonetheless, the first applicant indicated in her visa application that she is “sometimes” in contact with her family by telephone.
·In 2016, the applicants began attending a Baptist church in [a suburb], where they were baptised [in] October 2016, the day before their wedding. The applicants learned through [Church 1] about branches of the Local Church operating in Melbourne and began attending the Local Church congregations. [Between] October 2016, when they were baptised into the Baptist faith, and [November] 2016, when the first applicant signed her statement of claims, the applicants were re-baptised into the local church. The applicants claim that “the new atmosphere in a new church instilled new vitality into [their] bodies, and [they] felt as if [they] had been rejuvenated again.”
·The applicants claim that, as Christians, they could not attend Local Church congregations or preach the gospel in China. The applicants contend that the Chinese governments recognises only the official Patriotic Church, and all other house churches operate underground and in an environment of persecution. By way of example, the first applicant claims that in 2015 her cousin was arrested for preaching the gospel in China, while the cousin’s local church congregation was investigated and closed by the government. The applicants hope to remain with their present church preaching the gospel and claim that through their “persuasion” a lot of people had converted to Christianity.
[4] [Department file number], f. 94.
At hearing, the applicants each gave evidence separately. In summary, the first applicant gave the following evidence:
·She is not on good terms with her parents because when she stopped studying, they wanted her to return home so they could arrange a marriage for her and so that she could work to help support the family in China.   Also, her parents are not Christians and do not approve of her faith. Her parents are ‘Feng Shui’ practitioners which she considers to be virtually ‘fortune tellers’ and she does not agree with that practice. Her parents borrowed money to enable her to study in Australia but the agent who arranged her visa lied about her being able to work whilst she studied and how easy it was to get highly paid work. When she arrived, she could only find limited low paid work [and] found it difficult to survive. She did not earn enough to send money home as her parents expected. This is partly why they expected her to return once her study was finished – they could ‘recoup’ their costs of funding her study and travel to Australia by obtaining a ‘bride price’ of [amount], and she could also work in China and pay them off.
·Instead of agreeing to return to China, the applicant stayed in Australia and her relationship with her parents has been poor ever since. She claimed that she has not told her parents of her marriage to the second applicant or even of the birth of their son.    However, when asked if, on return to China, she would try to recover and improve her relationship with her parents, she said that she believed that this has changed over recent years. In the past, she would have just stayed away. But now, knowing what she has learned from her faith, and because she is more spiritual than before, she would try to spread the gospel to them and to fix the relationship.
·The first applicant said that she has changed since she left China. She was only [age] years old when she came here. Her father was always against religion of any kind. However, her parents had gone to other provinces for work and so she was raised by cousins who took care of her until she was a teenager. They took her to Local Church meetings, and she described those meetings, where they were held in local homes and in small groups, and how they would cry out for God. However, once she reached the age of around ten years, she stopped going, because she focussed more on her study.    They respected that wish and left her to her study.
·The first applicant claimed that if she returns without an education and in an unapproved marriage, her family will be disgraced. She fears that people in her local community will reject her in support of her parents. She doesn’t believe that her family will accept her husband just because they have a son.
·The first applicant confirmed that, prior to coming to Australia, she was not a member of the Local Church, or even particularly religious. She said that the first time she went to church in Australia was after her son was born in [year], despite what was in her written claims. She described how her son was admitted to hospital for some tests when he was 2 weeks old, and she felt lonely and frightened. Her husband suggested that she seek help from God, and they looked around locally and found [Church 1]. She started attending there with him. However, the first applicant described how it never felt right. In that church, the preacher does the talking and you just sit there and listen most of the time, in a big group. She recalled how warm and involved the gatherings were at the Local Church, and how everyone called out for God. She felt she couldn’t let out her feelings at the Baptist Church.   She never felt comfortable there.
·When she and her husband found the Local Church in Melbourne, she described feeling like she had ‘gone home’. There is no pastor, and they all shout and pray out loud. They use the revival version of the bible, which is the version directly received from God, according to the applicant. They found the Local Church not long after they joined the Baptist Church and have since then continued to attend there.
·I asked the applicant if she had started to attend church in Australia to strengthen her claims for protection. She denied that it was so. She said that she believes God has called her to the Local Church. She has a strong commitment to the church and her faith. She believes it is her mission to evangelise and bring others to the Church – it allows more people to be chosen by God. When asked what this meant, the applicant said that the only people who will be saved when God returns to earth will be those who have been chosen (and those in the Local Church are the only chosen.) The applicant claimed that there are ample signs that God will return soon, such as disasters like the bushfires and now the Coronavirus pandemic. In answer to my questions about the meaning of ‘saved’ in that context, the applicant said she means it literally, and used Noah’s Ark as an analogy. Those who are not in the chosen faith (just like those not on board the Ark) will perish.
·The first applicant gave evidence that she would find and participate in a Local Church group if she returned to China, and that she would evangelise because it is her mission to bring people to salvation. She fears that she would be harassed and prevented from freely practicing her faith in China. In Australia she can freely do so. She also fears that her child will be unable to be brought up in her chosen faith.
·The first applicant gave evidence that she fears her son would be ostracised and unable to obtain a proper education in China due to her commitment to the Local Church. She also would not want him to attend government education because the State schools actively advocate against all faiths. She believes that not only would he be refused State education, she would not want that education for him, anyway.
The second applicant gave the following evidence:
·His parents and [siblings] are in China and he has regular contact with them. They are happy that he has married and has a son. His mother [works] and his father [works]. Both his [siblings] work.
·He stopped studying in Australia because he couldn’t afford to continue.
·The second applicant gave evidence that he had been brought up as a Christian but the practice of the faith in China was problematic. He was not a catholic as stated in the written claims. His parents had been Local Church members but when their church was closed, (when he was aged nine or ten) they were told that they could only go to a ‘registered’ Christian church. They tried it, but found it is was different than their idea of practicing the Christian faith, so they stopped attending. The applicant said he was not particularly religious himself at that time, as he was only a child and still young when they stopped attending. But just like his son now, he was taken to church meetings with his family when they went.
·The second applicant said that he and his wife first started attending church together in Australia in 2016 when they joined [Church 1]. But it didn’t feel like the right fit for them. Another friend told him about the branch of the Local Church and quite soon after they had joined the Baptist Church, they switched to the Local Church. The second applicant described the various groups and meetings in which they participate and the sites on which the church operates in Melbourne. He and his family participate actively in the Local Church.
·The second applicant claimed that if they returned to China, they would be unable to practice their faith because the Local Church is not recognised, and is in fact banned. If they were prevented from practicing, this would cause them harm because they believe that the members of their faith are chosen by God and that they will achieve salvation only through their chosen faith. The second applicant described his belief that God will return and judge the world, and that membership of other faiths will not suffice. He claimed that the Local Church has its own local spirit and soul. An essential part of the practice of their faith is the meeting in groups, reading the bible, praying together and evangelising. These things cannot be achieved on your own.
·The second applicant stated that he lives his faith in Australia and that he spreads the word by his conduct as well as by actively evangelising. He described how, when a boss who he was working for cheated him of money he was owed, saying that he had to pay a deducted ‘commission’ for being introduced to the employer despite performing heavy duties, he was not angry. He told the man he would work for free. The man questioned why on earth he would do such a thing. The second applicant told the man he was a Christian and believed that you should not hate those who dishonour you. The man responded that he thought he was an idiot. The second applicant said ‘Come to our church then, you’ll see a lot of ‘idiots’. We don’t get into trouble; we try to help each other.’ His employer didn’t agree to attend the church - but a week later, he returned all the money he owed the second applicant.
·The second applicant said that he has also been involved in attending universities to evangelise to students there.
·The second applicant said he fears that the government in China will stop him from attending his church, practicing his faith and evangelising. He fears he will have no Church life in China, and that if they insist on attending the Local Church they will be arrested, detained and prosecuted.
·He also fears that the first applicant’s family will demand a ‘bride price’ for his marriage to her. His parents are unable to pay because they incurred a heavy debt in sending him to Australia. He has paid some back to them, but he still has that obligation. If they refuse to pay the bride price, his wife and her family will be dishonoured. He agreed that they would not have to live near her family. They would go where God guided them.

After the second applicant had given his evidence, the applicants gave joint evidence. They were referred to the letters they had provided in support of their claims from various members of the Local Church. The said that they had asked for the letters because their representative had told them they needed evidence of their attendance at and involvement in the church.
In relation to where they could live in China on return, the applicants considered that there was a greater chance of being harmed as Local Church members in smaller villages and communities in China because of the visibility there. They agreed that they could choose to live in a large city to reduce the risk of being identified as Local Church members. However, they submitted that the chance of being targeted by the Government because of the faith exists throughout the country. But they don’t want to hide. They want to live openly in their faith and would do so, worshipping. They believe they will therefore come to the attention of the authorities and face arrest, detention and physical abuse including forced ‘indoctrination’. Nonetheless, they both claimed they would not cease attending to their church life or evangelising. Even if they do not immediately come to the attention of the authorities, they claim they will suffer psychological harm from living in constant fear of being arrested, detained and prevented from practicing their faith.
Prior to the hearing the applicants had provided several brief supporting letters from persons claiming to be Local Church brothers and sisters, which letters generally support the applicants’ evidence to be active and genuine members of the Local Church community in Melbourne. They also provided a statutory declaration from the first applicant which has been generally confirmed in the evidence of both applicants above, but which also includes the following additional evidence:
·    The applicants met in 2014 but married [in] October 2016. They now have a second child, a girl born on [date].
·    The applicants are actively involved in evangelising and have become major activists of the Local Church in Australia. The first applicant teaches children to sing hymns and stories from the bible.
·    If they return to China, they will continue to play an active role in the Church and therefore inevitably will be subjected to persecution by the government authorities in China.
·    They fear that their children will be unable to attend any church activities in China and will be deprived of their basic human rights.
·    The first applicant’s cousin has been subjected to investigation by the PRC (Peoples Republic of China) authorities several times and was detained by the police. She is currently under surveillance because she is regarded as a ‘dangerous person’ of an ‘Evil Cult’. Her human rights have been abused and her freedom strictly restricted. She is currently unable to participate in any church activities.
Fear of persecution because of their faith as members of the Local Church.
According to Department of Foreign Affairs and Trade Country Information Report: China 3 October 2019;
2.50 The Constitution provides for freedom of speech, the press, assembly, association and religious belief. Article 33 states that ‘all citizens of the People’s Republic of China are equal before the law. The State respects and preserves human rights’. In practice, however, the Constitution is non-justiciable and these freedoms are significantly curtailed. The one-party political system lacks effective safeguards to allow independent monitoring and investigation of human rights abuses by the state, such as an independent media, judiciary or a national human rights institution.’
In relation to freedom of religion more generally, DFAT usefully summarises as follows:
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.
3.32 In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by
Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) 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.
Christians:
3.76 China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to
several thousand participants/attendees.
3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
3.79 Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or Imputed) and Protesters/petitioners).
3.80 Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.
3.81 In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.
3.82 Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
3.83 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.
Churches designated as xie jiao (commonly referred to as ‘evil cults’ but also understood to translate to ‘heterodox teachings’):
3.93 The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.
3.95 Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.
As noted above, according to the Chinese Criminal Code, ‘using’ a superstitious organisation or an evil religious organisation can result in imprisonment of five to seven years or more[5]. The country information establishes that the Shouters (also known as the Local Church) is designated as such a ‘xie jiao’ organisation. Members of xie jiao are arrested and face court for their actions, and such arrests are regularly reported in the media. According to multiple sources, police regularly carry out raids and surveillance on members of xie jiao religions, and enlist members of the public to report community members who behave in a suspicious manner or may be known as members of banned xie jiao organisations. The country information suggests that Local Church members are unable to practice their faith without the fear of being found or reported, arrested, detained and prosecuted. Further, there are reports that members who are held in detention are subjected to torture and forced indoctrination.
[5] Article 300, Chinese Criminal Code English translation from the Permanent Mission of the Peoples Republic of China to the UN:
My assessment of the country information reflects that persons perceived to be or found to be ordinary members of xie jiao organisations face surveillance, pursuit, arrest, interrogation and imprisonment and those in a more senior position within those organisations can expect more draconian punishment, including interrogation, targeted social exclusion, imprisonment for many years and consequent social hardship.
Given that the prosecution of xie jiao organisation members (such as the Local Church) is undertaken according to the Chinese Government under the guise of Chinese criminal law, I have considered whether Article 300 is a law of general application, meaning that enforcement of the criminal law by arresting, prosecuting and imprisoning church adherents would not ordinarily constitute persecution.
According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status:
(d) Punishment
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.
57. The above distinction may, however, occasionally be obscured. In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution.
58. Secondly, there may be cases in which a person, besides fearing prosecution or punishment for a common law crime, may also have “well founded fear of persecution”. In such cases the person concerned is a refugee. It may, however, be necessary to consider whether the crime in question is not of such a serious character as to bring the applicant within the scope of one of the exclusion clauses.9
59. In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.
60. In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick. Moreover, recourse may usefully be had to the principles set out in the various international instruments relating to human rights, in particular the International Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded.
I also note comments of Madjgwick J in NAVZ v MIMIA [2015] FCA 13 at [55]:
Thus, the protection of religious freedom, encompassing all bona fide belief on religious matters, by the Convention, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, was and is a profoundly significant assertion of religious tolerance as a norm of international law and practice. It represented a notable development in shared international conceptions of morality. Implicit in that assertion is the centrality to human personality and dignity of individual choice of a religious belief or the lack or denial of any such.

I have considered whether Article 300 of the Chinese Criminal Code is a law which is discriminatory of its’ very nature. On its face, the law seeks to criminalise involvement in dangerous or aberrant organisations, or the use of them to defraud or assault citizens. The Chinese government (as does every sovereign state) has a right to seek to protect its’ citizens and itself from what it deems to be aberrant or potentially dangerous social behaviour. I am not satisfied that Article 300 is a law which is discriminatory on its’ face.
However even though the law itself may not be discriminatory, the country information as discussed above reflects that the law is applied to target members of particular unauthorised churches (and particularly those who the Chinese Communist Party (CCP) sees as challenging or potentially challenging their authority). At the same time, it is not used to target members of other churches - whether small and unauthorised or larger and ‘authorised’– even those which may hold broadly similar types of views, beliefs and practices to the targeted churches. I am satisfied that Article 300 is applied in a discriminatory way by the Government of China to persecute members of the small house churches deemed to be xie jiao. I consider that Article 300 is able to be (and is being) used to suppress freedom of religion, and political or ideological opposition (or perceived opposition) to the CCP in a discriminatory fashion and is selectively enforced against Local Church members.
The country information suggests that the Chinese State considers the Local Church/Shouters to be an evil or superstitious cult and does not accept it as a legitimate religion. The country information also suggests that members of the Local Church, including leaders and ordinary attendees, are forbidden from practicing their faith, are subject to surveillance and harassment, arbitrary arrest and lengthy detention merely for participating in (or to use the legislated Chinese term ‘utilising’) their faith. It follows from my assessment that whether either or both of the applicants have established that they are genuine members of the Local Church is relevant to my assessment about whether there is a real chance (in the sense that it is higher than a remote chance,) that on return to China, they will be persecuted because of their faith. My focus in this review is therefore on whether I accept the applicants’ claims to be members of the Local Church.
The delegate found that the first applicants’ knowledge to be lacking and inconsistent with her claims to have been devout members of the Local Church. The delegate was concerned about the applicant’s level of knowledge about her faith. The delegate did not interview the second applicant. Ultimately, the delegate did not accept the applicant’s claims to be Local Church members or that the applicants face a real chance of serious harm if they return to China.
Findings about Local Church
I consider that the evidence given by the first applicant during the review has been inconsistent, particularly as it relates to practicing any faith in China and in Australia prior to 2016. She claimed in her written documents that she attended a Local Church in NSW when she first arrived but stopped going when she heard other members were arrested. At hearing she explicitly gave evidence that in fact, she first attended a Christian Church in Australia when she and her husband found [Church 1] in 2016.
My assessment of the first applicant, after hearing her evidence, is that she is a fervent ‘born again’ Christian and has enthusiastically embraced and believes in the ‘doomsday’ tenets of the faith. I have considered the delegate’s findings that her faith at that time (April 2017) was not reflective of her claimed practice of the faith. I consider those findings reasonable, particularly given her evidence before me, that she had only been an active church member since late 2016. I consider that her lack of knowledge at that time actually reflected her relatively short religious exposure and knowledge. I consider that the first applicant unconvincingly embellished her religious experience and religious practice in China and in Australia in her discussion with the delegate to strengthen her claims for protection.
Based on that assessment, I reject the written claim (and the evidence given by the first applicant about that to the delegate as recorded in the delegate’s decision) that the first applicant attended the Local Church in Sydney when she first arrived in Australia and then stopped attending because of a fear of being detained due to her illegal status.
In relation to the first applicant, I accept that she had some limited exposure to the Local Church in China as a child but I find that, based on her own evidence at hearing which I accept, she was not an active member of any church when she arrived in Australia at age [age] (2007) or indeed until mid to late 2016.
My assessment of the second applicant was that he was honest and forthright in his evidence before me. He gave answers freely, even though some of his answers (such as his denial of him being a Catholic) conflicted with the written claims. He did not exaggerate his past history or commitment to the Christian faith prior to his involvement in the Local Church here in Australia. I consider that the second applicant exhibited a strong Christian ethic in how he lives his life and that he is a devout member of the Local Church – committed to the ideals of the church and to bringing others into the church through evangelising and also through his living example.
Based on the evidence they gave me as a whole and my assessment of that evidence, I do not accept that either applicant attended a Christian church in Australia until 2016, when they joined [Church 1]. I do accept that they were initially baptised at [Church 1] in August 2016 and then into the Local Church very shortly afterward. I have given regard to the various letters provided by the applicants. I give them some weight as corroborating that the applicants have been attending Local Church in Melbourne since 2016 and that they are actively involved in various church activities and groups.
I acknowledge that every faith has a range of devotees with varying levels of knowledge and devotion to the teachings of that faith, and an inability to exhibit deep knowledge about or quote passages from a holy book on demand may not indicate any more than that the adherent has embraced the ideal behind the text and not committed the words themselves to memory. Conversely, the ability to quote passages and religious ideas at length may simply be an indicator that the applicant has learned to do so for the purposes of strengthening their claims of being among the faithful. In this case, I found that the first applicant was able to discuss (and evangelise) in detail about the importance of her faith, her practice of the faith, her belief that all ‘non-believers’ risk damnation when the end of times arrives (and that it is imminent) and that this suggests that whatever her beliefs or knowledge were at the time she was interviewed by the delegate, she is now an ardent and devoted Local Church member. I am satisfied that, if she returns to China, she would continue to practice her faith and to evangelise, particularly due to her conviction that world events such as the coronavirus are signs of the impending apocalypse.
In the second applicant’s case, I found him to have a strong and coherent capacity to describe his beliefs, and his conduct in both China and in Australia in practicing his faith. His evidence of his experiences in China was consistent with the country information. I accept that the second applicant is also a genuine Local Church member. I am satisfied that, if he returns to China, he would continue to practice his faith and to evangelise.
I accept that the applicants would choose to raise their children as Christians, and that all members of the family would be involved in the Local Church wherever they reside.
I therefore find that both applicants are genuine members of the Local Church in Australia and would seek to practice that faith if they were to return to China, wherever they were to live on return.
I refer to my conclusions about the country information which affects Local Church members in China, their ‘banned’ status and my finding that Local Church leaders and ordinary church members are at risk of being harassed, arrested, detained for lengthy periods, charged with offences, and subjected to torture and potential ‘re-education’. I find that there is a real chance that the applicants will suffer persecution for reason of their membership of the Local Church if they return to China, now or in the foreseeable future.
The essential and significant reason for the persecution they fear is their religion, which is one of the reasons described in s.5J(1)(a) of the Act.
I am satisfied that the persecution involves serious harm as required in s.5J(4)(b), namely significant personal harassment, lengthy detention and imprisonment, social and official ‘ostracism’ (that is, denial of access to basic services and capacity to earn a livelihood) of both adherents and members of their families, and potentially torture and assault at the hands of authorities. Based on the country information as discussed above and my findings of fact, I also find that the persecution involves systematic and discriminatory conduct on the part of the Chinese Government towards Local Church adherents, as required in s.5J(4)(c) of the Act.
Both applicants joined the Local Church in Australia and I have found that neither of them was actively practising any religion when they came to Australia. According to s.36(6), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister (or a decision maker standing in the shoes of the Minister) that the person engaged in that conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
I have carefully considered the evidence given to me at hearing. On balance, I accept that the first applicants’ participation in the Local Church in Melbourne was in response to her reaching out to the church community after she experienced the near loss of her young child and because she was lonely and looking for a sense of community at that time. I am satisfied that the decision to join the Local Church was not made in order to strengthen her claim to be a refugee. In relation to the second applicant, I am satisfied that his attendance at the Local Church in Australia represents a continuation of his religious exposure in China as a young person and was not conduct engaged in by the second applicant for the purpose of strengthening his claim to be a refugee. I do not intend to (in fact find that I am unable to) disregard the conduct of the applicants in joining and attending the Local Church in Australia.
The real chance of persecution is from the Chinese government, its’ police and local authorities throughout the country. Given that it is the government and its’ authorities that are the persecutors in this instance, I find that the Chinese Government, its’ police and authorities are unwilling to provide the applicant with protection from persecution. I am also satisfied that the real chance of persecution relates to all areas of China.
In conclusion, having accepted the applicant’s claims to be genuine members of the Local Church and that there is a real chance that they will be subjected to persecution in China on account of their faith, I find that the applicants are refugees. Because of this finding, I do not intend to address their remaining claim to fear harm from their families due to having married without appropriate consent or due to the non-payment of a ‘bride price’.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Anne Grant
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.
…

Article 300. Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or sabotages the implementation of the state's laws and executive regulations by utilizing superstition is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment; when circumstances are particularly serious, to not less than seven years of fixed-term imprisonment.
Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or cheats others by utilizing superstition, thereby giving rise to the death of people is to be punished in accordance with the previous paragraph.

Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or has illicit sexual relations with women, defraud money and property by utilizing superstition is to be convicted and punished in accordance with the regulations of articles 236, 266 of the law.

[2020] AATA 1270

28 April 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction