1712414 (Refugee)

[2020] AATA 4432

1712414 (Refugee) [2020] AATA 4432 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712414

COUNTRY OF REFERENCE:                   China

MEMBER:Cathrine Burnett-Wake

DATE:21 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 August 2020 at 2:54pm

CATCHWORDS

REFUGEE – Protection Visa – China – religion – active member of the Local Church – applicant provided clear and straightforward answers – creditable evidence – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a of China applied for the visa on 13 March 2015. The delegate refused to grant the visa on 31 May 2017.

3. The applicant appeared before the Tribunal on 30 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

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

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

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

13. Based on the information before the Tribunal it finds that the applicant does not have a right to enter and reside in any third country.

    Claims

14. The applicant provided claims in his protection application. He claimed that he would be persecuted or suffer significant harm, mentally or physically if he went back to China because of his beliefs, and stated he feared the agents of the state and could not relocate as the persecutor was the state. He claims that the Communist Party believes that religion is an adverse factor on society and referred to many religious groups as evil cults and persecuted them. He said he feared being detained or forced to give up his belief and stop religious activities. He claimed the authorities will not protect the freedom of his religious beliefs.

15. Although the applicant was invited to attend an interview with the Department, he did not attend, claiming to have only became aware of the interview on the day it was scheduled as he does not check his emails regularly.

16. The written claims made in the primary protection application were detailed in the delegate’s decision record and can be summarised as follows:

    ·He applied for a protection visa because he does not wish to return to China. He fears persecution at the hands of the Chinese Communist Regime because he is an active member of the local church which is banned by the Chinese government.

    ·His mother [was] arrested by Fuqing Public Security Bureau for organising local family church gathering at her house [in] October 2014. She was accused of organising underground church activities and was detained for [a number of] days.

    ·As a devoted local family church member, he has been practising his religion at his local family church in China and Australia.

    ·He did not apply for protection earlier because he did not have any evidence to demonstrate that his family members had suffered persecution at the hands of the Chinese authorities. ‘[T]hanks to the blessing of Lord Jesus’, members of his family had not been directly punished by the Chinese police officers until the incident of [date] October 2014.

    ·His mother recently sent him the Public Security Bureau decision record confirming that she had suffered persecution as a result of practicing her religion in China. So, he decided to apply for protection.

    ·If he returns to China, he will continue his religious practice at his local family church in China. There is a strong change that he could be arrested and detained by the Chinese police just like his mother.[1]

    [1] Details contained in paragraphs [14] to [16] are contained in the delegate’s decision, a copy of which the applicant provided at the time the review application was made.

17. The applicant has provided supporting documents to the Tribunal for its consideration which include:

    ·On 22 October 2019 the Tribunal received the following documents:

    §Submission / Statement of the applicant dated 22 October 2019;

    §Victorian Marriage Certificate of [the applicant] and [Ms A] dated [date] 2019;

    §Birth Certificate of [Child 1] (DOB[deleted]);

    §9 letters of support from members of the applicant’s church in Australia attesting to his attendance and participation within the church community;

    §38 photographs depicting the applicant attending and participating in church activities.

    ·On 30 October 2019, the day of the hearing the Tribunal received the following documents:

    §Newspaper article: ‘If Your Religion is a Xie Jiao, You Go to Jail – But What is A Xie Jiao?’ dated 18 September 2018;

    §Newspaper article: ‘House Churches Told to Replace God with Communist Party’ dated 23 September 2019;

    §Newspaper article: ‘What Would Hippocrates Say? Patients Forced to Divulge Their Faith Before Getting Medical Care’ dated 28 August 2019;

    §Newspaper article: ‘Clampdowns on House Churches Continue Across China’ dated 10 February 2019.

18. The applicant attended a hearing with the Tribunal on 30 October 2019. His claims were largely consistent with claims made to the Department, with some additional detail provided and can be summarised as follows:

    • The applicant’s father is deceased, and his mother remains in China. His older brother lives [overseas] and has been there since 2010. His older brother is not religious; however, the applicant and his mother are.
    • The applicant and his mother are members of the Local Church, also known as ‘The Shouters’. The Local Church that the applicant and his mother attend is banned and is considered unlawful and is classified as the shouters and a cult. Their church is not registered with the local authorities in China.
    • The applicant attended a Local Church in China. Where he is from is a remote area and their church did not have a designated gathering place in the area he lived.
    • The applicant’s mother became a member of the Local Church in 2005. This occurred after a woman named [Ms B] married a village local. When [Ms B] moved to the village, she started to preach about gospel among the village residents, including to the applicant’s mother. Gatherings were held at [Ms B]’s home. They would pray and sing hymns and have discussions and proclaim god’s name and speak on god’s behalf. These meetings would occur 2-3 times per week. The applicant’s mother became a believer first and then under her influence the applicant became a believer in early 2007.  But prior to that he would occasionally attend the gatherings as well, as his family home was often a gathering location. The applicant’s older brother moved away before the family became involved in the Local Church.
    • The applicant came to Australia in July 2007, to study. He was around [age] and wanted to complete training to be[an occupation].
    • He initially undertook a language course and was about to commence [studies]. He never completed the language course because of financial difficulties, so he dropped out of the course as his family was unable to support him.
    • About one year later, in 2008 his student visa was cancelled.
    • The applicant’s father passed away in 2012. He wanted to return to China for the funeral, but his mother asked him not to. She feared upon his return he would also be persecuted. She was of the view that if he could better worship the lord in Australia he should remain without fear of persecution.
    • When in Australia the applicant did not attend any church gatherings between 2007 and 2010. In 2010 he was introduced to a former housemate’s wife, who was a member of the Local Church. And she connected the applicant to a Local Church in [Australia]. Since then the applicant attends gatherings 2-4 times per week.
    • The applicant spoke in detail about his belief system. He spoke of the founding of the Local Church, their practices and philosophy. He spoke in detail about his beliefs which carried over at times to the point of evangelism.   
    • The applicant knew he was eligible for a protection visa before he applied, however, worried that if he applied the Chinese authorities would find out which would raise alarms about his mother, and they would question her. However, following her arrest and because she had come to their attention it was the appropriate time to apply.
    • The applicant’s mother was arrested in her home whilst she was hosting a gathering.
    • The applicant’s mother told the applicant that that if he returned to China and attended the unlawful gatherings that he would be arrested and that in addition to herself a number of villages have been arrested by the police.
    • The applicant fears that that he will be arrested upon return to China.
    • The applicant claims that following the arrest of his mother she is currently deprived of her human rights as she is not allowed to go outside of her family land or local village. Further, that she is confined to the village and she is monitored by the village community. She can’t make her way out of the village and she must go past the village committee to do so. She’s a farmer so she farms her land and she lives a pretty difficult life. She used to be able to go near the sea to get seafood to sell but not anymore. She lives a destitute life; she can’t afford to see a doctor.
    • The applicant fears the local authorities, the local government and the police. If he returns to China, he will be monitored by them. He would continue to practice his faith and for that reason would be arrested. As his mother is already under surveillance, he would be affected by that as well.
    • The applicant cannot relocate to another part of China as he would need to get permission from his local authorities. Further, the Local Church is banned China wide, so as he would continue to practice his faith he would be detected and persecuted.
    • The applicant met his now wife at a Local Church conference in 2017. They married in [2017] and welcomed their daughter in [year].

    Assessment of claims

19. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

20. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

21. The Tribunal found that the applicant has provided consistent claims throughout the whole process. During the hearing the Tribunal was able to test the applicant’s claims in great detail along with discussing in depth his religious observance and practice both in China and Australia. The applicant provided clear and straightforward answers which were consistent with supporting evidence supplied. The Tribunal finds the applicant appeared credible throughout the hearing.

22. The Tribunal accepts the following:

    ·The applicant is a member of the Local Church, this has been evidenced by supporting documents listed at paragraph [17].

    ·The applicant has continued to practice his faith in Australia and his claims in that regard have been corroborated through supporting documents provided to the Tribunal as listed at paragraph [17].

    ·The applicant was introduced to the Local Church by his mother before he moved to Australia and would attend gatherings whilst still in China. The Tribunal was persuaded by this claim based on the consistent and detailed verbal evidence he gave regarding the gatherings during the hearing.

    ·The applicant’s mother was arrested and detained in China by the local authorities. The Tribunal was persuaded by this claim based on the detailed verbal evidence he gave during the hearing which was consistent with previous statements. Furthermore, the country information, discussed below, supports arrest and detention of Local Church members occurs.

    Fear of persecution because of faith as members of the Local Church.

23. 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.’

24. 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.

1. As noted above, according to the Chinese Criminal Code, ‘using’ a superstitious organisation or an evil religious organisation (and the Shouters or Local Church is designated as such a ‘xie jiao’ organisation) can result in imprisonment of five to seven years or more[2]. Members of xie jiao are arrested and face court for their actions, and such arrests are regularly reported in the media. The Tribunal at this point notes the news articles provided on 30 October 2019 by the applicant also support this  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 and prosecuted.  Further, there are reports that members who are held in detention are subjected to torture and forced indoctrination.    

   [2] Article 300, Chinese Criminal Code English translation from the Permanent Mission of the Peoples Republic of China to the UN:

2. The Tribunal’s assessment of the country information reflects that persons perceived to be or found to be ordinary members of banned organisations (such as the Local Church) 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.

3. As above, the Tribunal has accepted that the applicant is a member of the Local Church. On the available evidence, including the consistent account of his religious observance, the Tribunal is satisfied that the applicant’s religious activity in Australia has not been engaged in for the sole purpose of strengthening his claims for protection. Rather, the Tribunal is satisfied that he has engaged in these activities because he is a genuine member of the Local Church.

4. The Tribunal is satisfied that the applicant is a genuine member of the Local Church. The Tribunal accepts he will continue to be an active and committed follower of the church if he returns to China.

5. The country information, the Tribunal finds, indicates that members of the Local Church, such as it finds the applicant is, are severely restricted and he would face a real chance of being harassed, detained or otherwise harmed by the authorities because of his religious belief and worship. The Tribunal finds his religious beliefs are the essential and significant reason for the persecution.

6. On the basis of these findings, the Tribunal finds that the applicant cannot return to China and worship in the way he has been worshipping in Australia. On the weight of the country information it accepts that the applicant would have to alter or hide his religious practice or expression of his faith in some manner if he returned to China, and could not continue to worship and practice his faith in the manner he has done.

7. The Tribunal finds that it is apparent from the above country information that the applicant’s religious community is facing serious issues in China. While this country information serves merely as an overview of the situation, the Tribunal finds it is highly apparent the Chinese Government’s suppression of the applicant’s religious community has continued to escalate and the persecution the applicant may face involves systematic and discriminatory conduct. Given the applicant’s mother’s profile in China and her previous arrest and detention, the Tribunal finds there is a real chance he would face harm upon return to China. The chance of him facing serious harm is greatly enhanced by the fact he has openly practiced his faith in Australia and has remained abroad for a prolonged period.

8. As the Tribunal has found the applicant to be genuine, adherent and a member of the Local Church, and given the above country information reporting, the possibility cannot be dismissed as remote that he will, because of his involvement with a religion, come to the adverse attention of the authorities.

9. The Tribunal is satisfied that there is a real chance he will suffer serious harm if he returns to China for reason of his religion.

10. Accordingly, the Tribunal finds the applicant to have a well-founded fear of persecution in China on account of his religion.

11. As the harm he fears is from the state itself, the Tribunal accepts that adequate state protection will not be available to him in China.

12. Further, the Tribunal finds that the real chance of persecution relates to all areas of China.

13. The Tribunal is satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reason of religion. The Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that the applicant will suffer significant harm.

14. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

15. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Cathrine Burnett-Wake
    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.