1713490 (Refugee)

1713490 (Refugee) [2020] AATA 2060 (10 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713490
COUNTRY OF REFERENCE:                   China
MEMBER:Cathrine Burnett-Wake
DATE:10 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 June 2020 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – ‘The Shouters’ – knowledge of beliefs and practices – mainstream Christian church in Australia – ‘low-level’ worship – former religious practice in China – attendance of unregistered ‘house’ churches – claimed detention of mother – timing of protection visa application – visa history in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 1 May 2015. The delegate refused to grant the visa on 6 June 2017.
The applicant appeared before the Tribunal on 12 November 2019 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
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
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.
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.
Background
The applicant has a long visa history and has been in Australia since 2007. His visa history can be summarised as follows, which has been extracted from the delegate’s decision record:
31 August 2007:         Applicant granted a [student] visa whilst offshore;
[October 2007]:          Applicant arrives in Australia as the holder of a [student] visa;
18 February 2008:     Applicant granted a further [student] visa whilst onshore;
[June 2008]:               Applicant departs Australia and returns to China;
[December 2008]:      Applicant returns to Australia on his [student] visa;
1 March 2010:            Applicant granted [a further student] visa whilst onshore;
11 July 2011:              Applicant lodges application for [graduate] visa whilst onshore;
20 February 2013:     Applicant refused [graduate] visa;
[September 2013]:     The then Migration Review Tribunal affirmed the [graduate] visa refusal;
5 November 2013:      Bridging visa A ceases;
6 November 2013:     Applicant becomes an unlawful non-citizen after failing to depart Australia following the cessation of his bridging visa;
[April 2015]:                The claimed detention of the applicant’s mother [Ms A] occurred;
[April 2015]:                The applicant’s mother was claimed to have been released from detention;
1 May 2015:Applicant lodges protection visa application.
Claims
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.
The applicant attended an interview with the Department. The verbal statements and written claims made in the primary protection application were detailed in the delegate’s decision record and can be summarised as follows:
- The applicant is from Fuqing, Fujian Province, China;
- The applicant has only ever travelled to Australia;
- His parents are farmers and they remain in his village [Village 1] near Fuqing, China;
- The applicant has [number of siblings who] live and work in [Country 1];
- The applicant returned to China in 2008 for medical treatment;
- The applicant was born into a Christian family and his family had not suffered any government harm or persecution prior [to] April 2015;
- The applicant’s mother was arrested [in] April 2015 whilst attending a local family church gathering in Fuqing city;
- The applicant’s mother told him that many church friends have been arrested and detained by authorities for participating in church gatherings or whilst spreading the gospel in Fuqing city;
- The Chinese government states the local family church is one of the fourteen “evil cults” banned in China and anyone found present at such a venue or participating in local family church activities will be subject to arrest and detention;
- The applicant claims he is a devoted practising Christian in China and Australia;
- He claims he will continue to attend church if he returns to China and therefore he will be arrested and placed in detention like his mother, and even jailed for attending church;
- He has not been harmed previously in China, so he did not try to move to another part of the country to seek safety;
- If he practises his religious beliefs at a government registered church in China, it is possible he will be protected but the church he belongs to in China is banned by the government authorities and they will harm and persecute him;
- He will not be able to relocate as citizens are restricted from moving from one place to another because of the strict household registration system;
- The applicant claims he received incorrect advice from an education agent and therefore applied for a [graduate] visa, but this was refused. He applied for review, but as he changed his residential address, he did not receive the MRT letter and did not attend the hearing;
- He contacted the Tribunal and was told a decision had been made and that is how he realised his bridging visa had ceased;
- The applicant had planned to return to China and approached a travel agency in Australia to make arrangements to depart;
- [In] April 2015 his mother was arrested in Fuqing city whilst attending a local family church gathering and was interrogated, abused, threatened and assaulted by public security bureau officers;
- His mother was threated and that if she was found at a local church gatherings again in the future, she will be jailed so she strongly advised the applicant to remain in Australia;
- The applicant did not seek protection earlier because he did not have any concrete evidence of his family members being persecuted.
The applicant, to support his claim regarding his mother’s detention, provided the Department with an uncertified copy of a discharge certificate purportedly issued by [a named authority in Fuzhou]."The English translation states that [Ms A], date of birth [date], was detained from [date] April 2015 to [date] April 2015 by "[another named authority in Fuqing]".
During the protection interview with the Department, the applicant claimed that he was sent this document by his mother via a social media application used in China called [Social Media 1]. At interview he explained he had translated it himself using a dictionary. He explained he did not use a certified translator as he considered this to be a private matter.
During the protection interview with the Department, the delegate put to the applicant that it had information to indicate that many documents similar to the one he submitted could be fraudulently obtained or counterfeited. When asked to comment on this, the applicant did not respond to or comment on this information provided but instead swore or promised on the Bible that the certificate he submitted was genuinely issued to his mother upon her release. He also stated that one of his church teachings was that they should never give false evidence or bear false witness.[1]
[1] Information in paragraphs [12] to [17] is detailed in the delegate’s decision record, a copy of which was supplied to the Tribunal at the time the review application was lodged.
The applicant attended a hearing with the Tribunal on 12 November 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 completed his protection visa himself and typed out his letter using a dictionary for translation;
- He did not use the services of a migration agent, or any other person to assist him with his protection visa;
- He has only ever travelled to Australia from China;
- His parents and [siblings] are alive. His parents remain in China and his [siblings] live and work in [Country 1];
- He completed Senior High School in China in [year];
- When he arrived in Australia, he went for half a year of secondary college. He claimed because he had finished senior high school in China his then agent told him he could study at Tafe. Following this advice, he undertook and completed a [Qualification 1] in 2010;
- He worked in a [business] for slightly more than a year during 2011 and 2012. After which he undertook [Occupation 1] work whilst waiting for his visa to be granted;
- He applied for the protection visa because his mother was captured;
- When asked what religion he identified with, he claimed he was a member of the Local Family Church. He claimed that the Chinese government called out his religion as a cult. That it is anti-revolutionary and known as ‘The Shouters’;
- When asked to detail his belief system he said that they believe that Jesus Christ is the son of the god. He said they believe the three holy spirits belongs to one. The holy son, the holy father and the holy spirit, which he referred to as Trinity. He said they also believe that Jesus was put on the cross because he wanted to save people. That they believe Jesus came back to life three days after his death and that they also believe in the end of the world;
- The applicant claimed that his family has always been with this Church;
- He claimed that his religion is different to other religions as they don’t have a physical church when they participate in gatherings, and that they are held at people’s homes. He claimed that in China they usually gather every night, with a major meeting on a Sunday morning;
- He claimed that during the gatherings, they pray, and we also sing songs. They also eat bread and drink to represent the blood of Christ. They also discuss the bible and share the contents of it;
- The applicant claimed that he was baptised when he was [age] years old;
- When asked if the gatherings discussed anything other than the bible and their belief system such as anti-government discussions. He told the Tribunal that they only share about the holy book, and that we value equality. However, in China there is no equality because the government dominate. He went on to tell the Tribunal that he thought the government is afraid ‘we’ might be a threat to them and the community;
- The applicant told the Tribunal that because his mother has been arrested once by the police, the police have his family on the system and if he were to go back to China it is impossible for him to give up the gospel and he was afraid that he will spend his life in jail;
- The applicant told the Tribunal that when his mother was arrested and taken to the police station, they mentally tortured her by not letting her sleep;
- The applicant told the Tribunal that according to what his mother told him on the night of her arrest there were 8 to 9 people at the church gathering and the police came into the house where they had gathered, they arrested everyone and were imprisoned for 6 days. The applicant told the Tribunal that the police let his mother pay a fine of $2000 to be released. The applicant told the Tribunal that his mother was put in jail [in] April 2015 and was released [in] April 2015. The applicant claimed his mother told him about what happened to her [in] April 2015;
- The applicant told the Tribunal that the document issued regarding his mother’s was legitimate;
- The applicant told the Tribunal that the Chinese government treat his religion as a cult and that their church is non-registered, so it’s different from other churches that are registered with the government;
- The applicant claimed that because of his mother’s file they will get him when he is at a church gathering and they will keep him in prison. The applicant told the Tribunal that he is very terrified that this kind of situation is going to happen to him and that every time he thinks about it he becomes terrified;
- The applicant told the Tribunal that he is unable to relocate to another part of China. He claimed that if they find him in church or the police station will send him to the city he belongs to;
- The applicant told the Tribunal that because he has been living in Australia since he was [age], for more than 12 years, he is used to the freedom and equality in Australia. That he won’t be able to adjust to the communist life in China because he has never really lived in Chinese society as an adult as he had only ever gone to school before he left;
- The applicant told the Tribunal that he attends [Church 1] which is located in [Suburb 1] at [address]. He told the Tribunal that he attends every week, on Sunday mornings. He said that during the church services that they pray, sing hymns, break bread, drink grape juice and also share the holy bible.
Country Information, discussed during the hearing
The Tribunal discussed with the applicant country information from the current Department of Foreign Affairs and Trade Country Information Report on the People’s Republic of China, issued 3 October 2019:[2]
[2] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019
RELIGION
3.38 Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.
3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country.
The Tribunal explained that this information, consistent with other information, might lead it to infer that he could practise Christianity as he had described it to the Tribunal with only a remote chance of coming to the attention of or being harmed by the authorities as he is from Fujian.
The Tribunal summarised and discussed further information with the applicant:
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).
3.83 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.

The Tribunal explained that this information might lead it to infer that he could return and worship as a member of an official or unofficial congregation with only a remote chance of coming to the attention of or being harmed by authorities.
The applicant told the Tribunal that it’s not true the Chinese government would leave him alone and that he was scared he would be harmed.
The Tribunal explained that there was good reporting of events in China, that the DFAT report it had quoted was compiled from Australian government officials in China who spoke to a range of people about the situation, and so it was not sure it accepted that things are happening and we could not know or find out about that.
The applicant then went on to claim to the Tribunal that the Chinese government view his religion as a cult, which was ‘the Shouters’.
The Tribunal discussed further information with the applicant:
The Shouters (Local Church)
3.105 The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.
3.106 The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning (also known as the Church of Almighty God, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.
The Tribunal explained that this country information indicated that it was doubtful that there were many if any local church groups still in China, and further that it was not sure that the religious practice he had described was consistent with that described for the Shouters. Further the church he attends appears to be a general mainstream Christian church, not a subbranch of Christianity.
In response the applicant told the Tribunal that Nee was the founder, however, it was taken over by Changshou Li and the holy book is based upon Li.
The applicant told the Tribunal that his church is the same of the other churches, but it is very different. He stated that first of all the holy book they use is different from other churches, that it is directly translated from Greek literature, they don’t have priests, they have elders and they don’t have a physical fixed church. He went onto state that in a normal church they have one person to talk and the audience listen but his church is different as everybody can stand up and chair so everyone is equal. They also refer to each other in the church as brothers and sisters. He also claimed his church believes Jesus is the head of the church and the church represents the body and the brothers and sisters are the arms and legs. However, the other churches in China, the head is the communist party, not god.
The applicant concluded his evidence by adding he received a message form his brothers and sisters from his church who came here from China, that they were recently granted a protection visa.
During the hearing the applicant gave to the Tribunal copies of religious materials which he claimed were from his church. These materials were not in English. The Tribunal accepts on face value they are religious materials; however, it is unable to establish the content of the materials as they are not translated.
Assessment of claims
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.)
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 claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The Tribunal accepts that the applicant attends [Church 1] in [Suburb 1] on a weekly basis. The Tribunal accepts that this Church and the gatherings identify as a Christian group. The Tribunal notes the website of the church describes its beliefs as:[3]
[Information deleted]. We are believers in the Lord Jesus Christ who have personally received Him as our Saviour. He is the most excellent and enjoyable Person. We love Him and endeavour to give Him the first place in all things. We rejoice to be cleansed by the blood of Jesus, God’s Son, born again of the Father’s divine life, and filled with the Holy Spirit.
We highly treasure the Holy Bible as God’s revelation of Himself and of His eternal purpose. We hold the common faith which is revealed in the Bible and is common to all genuine believers.
As is true of all believers in Christ, we are members of His one Body, the church. [Information deleted].
[3] [Source deleted], accessed 12 November 2019 at the hearing and as discussed with the applicant: see paragraph [27].
The Tribunal accepts that the applicant draws some benefit from attending this group. However, the Tribunal does not accept that [Church 1] is that of ‘The Shouters’. How the applicant described the practices of [Church 1] and the activities undertaken when he attends, is consistent with that of a mainstream ‘Christian Church’. This is also supported by [Church 1] website ‘About us’ webpage as detailed at paragraph [35].
The Tribunal accepts that the applicant has knowledge of Christian teachings and the Bible. Further, that he has knowledge about the branch of Christianity ‘The Shouters’ and knowledge of their founding story and their unique teachings and beliefs.
The Tribunal is willing to accept that the applicant, in Australia, has engaged in mainstream Christian practices and has an attachment to Christianity in Australia. However, the Tribunal does not accept that the applicant engages as a member of ‘The Shouters’ in Australia.
As a person who has been attending a Christian gathering reasonably regularly, the Tribunal is willing to accept that the applicant identifies as a Christian who has worshipped at a low level (meaning that although he attends gatherings, prays and spends time with people there, he does not engage in any other activities as a Christian outside weekly meetings, nor is a church elder or leader). The Tribunal accepts that the applicant may wish to continue worshipping in the same low-level manner in the future.
The Tribunal has considered the applicant’s claim regarding his former religious practice in China and that of his other family members still in China, in particular his mother, and whether that practice and religious observation was/is as a follower of ‘The Shouters’.
Although the applicant claims he is a member of ‘The Shouters’, the applicant left China approximately 13 years ago, and has, as the Tribunal earlier found, been attending a mainstream Christian Church in Australia since that time.
Furthermore, the country information indicates that it is doubtful that there were many if any local church groups (The Shouters) still in China.
The Tribunal has formed the view that the religious practice the applicant described as participating in China, and that of other family members and his mother, was not consistent with that described for ‘The Shouters.’ The applicant did in the hearing display knowledge of the beliefs and practices that ‘The Shouter’s’ observe, however, having knowledge of beliefs and practices of a religion, does not alone, in the Tribunal’s view, demonstrate that you observe or are a member of a particular religion or church.
The Tribunal finds that what it has accepted of the applicant’s religious practice and the description of the gatherings he claims to have attended in China fit descriptions of unregistered ‘house’ churches in China.
Although the Tribunal is willing to accept the applicant and his family in China are Christians and they practice their faith at a low-level and attend unregistered ‘house’ churches in China, it does not accept the claim his mother was detained.
The delegate detailed in their decision record, there were serious concerns about the bona fides of the document the applicant provided to support the claimed detention, therefore could give it no weight. When the Tribunal addressed the concerns regarding the document with the applicant at hearing, he simply stated the document was genuine and his mother was detained. The Tribunal is not able to attribute any weight to the document, given the bona fides concerns, furthermore it has not been professionally translated. The Tribunal also notes the absence of any statement from the applicant’s mother attesting to her claimed detention or other independent supporting evidence to substantiate the claimed detention.
The Tribunal is of the view that the timing of when the applicant lodged his protection application and his mother’s claimed detention to be questionable – within 10 days. The applicant has, as outlined at the beginning of this decision, had a long visa history in Australia prior to applying for protection, which in the Tribunal’s view undermines his claims and raises serious concerns regarding his motivations for applying for a protection visa. The applicant made claims the reason he applied for protection at the time he did, and not in the preceding time period of October 2007 to May 2015, was because it was not until his mother’s claimed detention that he believed there was an issue.
However, in the applicant’s own evidence he told the Tribunal that because he has been living in Australia since he was [age], for more than 12 years, he is used to the freedom and equality in Australia. That he won’t be able to adjust to the communist life in China because he has never really lived in Chinese society as an adult as he had only ever gone to school before he left.
The applicant first arrived in Australia as a student, following this, he applied for a graduate visa. The graduate visa was refused by the Department. A review application was lodged with the Tribunal for the graduate visa however, a decision was made to affirm the matter. The applicant was then unlawful for over 2 years, claiming he was unlawful because of a change of address so did not receive correspondence from the Tribunal notifying him of the hearing. The Tribunal finds it is not plausible that you would not enquire about the status of your pending review for 2 years and that you would be ‘unaware’ of your unlawful visa status. Unlawful status has many issues that would impact on daily life that would be noticed, for example: when accessing healthcare along with tax and employment issues.
When the Tribunal discussed the country information with the applicant, specifically that DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. He said that his family would be at harm because of their beliefs.
Approximately 5 years has passed since the applicant’s mother’s claimed detention. She in that time, as per the applicant’s evidence has not been detained, nor come to the attention of authorities and she continues to practice her faith unobstructed.
The Tribunal is not persuaded by the applicant’s claims regarding his mother’s detention, given the bona fides of the detention document; the timing of the claimed detention in relation to that of lodging his protection visa; his visa history and statement he won’t be able to adjust to the communist life in China because he has never really lived in Chinese society as an adult; coupled with the country information which does not support individuals practicing religion in Fujian, in particular Christinantiy at a low-level, would likely come to the attention of authorities and be detained.
The Tribunal notes that the applicant claimed that members of his church in China were recently granted protection visas. However, other non-related parties and their claims for protection are not relevant to the Tribunal’s decision in relation to the applicant.
Does the applicant have a well-founded fear of persecution if he returns to China?
As above, the Tribunal has accepted that the applicant has worshipped in a low-level manner in Australia and that the description of his religious practice prior to coming to Australia corresponds to descriptions of unregistered ‘house’ churches in China.
On the country information above, it suggests that a trend of increased pressure on Christian groups normalised across provinces in 2018, and some of the specific incidents listed appear to have involved ‘ordinary’ church members, however, DFAT assesses members of unregistered churches that come to adverse attention is likely to relate more to their activism than to their religious affiliation or practice. There is no information before the Tribunal that the applicant is or has been involved in activism, further, he confirmed in his oral evidence he was not, nor were his family members still in China.
The Tribunal finds that if the applicant returned to China, he may wish to practise as it has found he does in Australia – that is, attending a gathering once a week, at which he prays and discusses the Bible. On the country information above, the Tribunal finds that he could do this at an unregistered house church in China.
On the basis of these findings, the Tribunal finds that the applicant can return to China, and that his worship and religious observance at a low level would mean there is only a remote chance of him being harmed by the authorities or anyone else.
The primary applicant claimed that he faced a risk of harm and persecution in that he would be detained by the authorities if he returned. The primary applicant claimed that his mother was detained previously and because of her record and profile, that would impact him. The Tribunal does not accept these aspects of the applicant’s claim and has already found his claim regarding his mother’s detention as not plausible.
Therefore, the Tribunal finds that there is no real chance that the applicant will be harassed, detained or otherwise harmed by the authorities or anyone else for reasons of Christian religion, now or in the reasonably foreseeable future. The applicant did not claim, and there is no evidence to support, him fearing harm on any other basis on return.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?
In MIAC v SZQRB[4] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
As detailed above, the Tribunal has accepted that the applicant is a Christian worshipper who practise his faith in a low-level manner in Australia and would continue to do so on return to China. Based on the country information and reasoning above, the Tribunal finds that there is no real risk that the applicant will be harassed, detained or significantly harmed in any way by the authorities or anyone else, now or in the reasonably foreseeable future.
On the information before the Tribunal, it finds that there is not any other basis for a risk of harm to the applicant on return to China.
Therefore, the Tribunal finds that there is no real risk that the applicant will be subject to significant harm by the authorities or anyone else, if he returned from Australia to China, now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.

[2020] AATA 2060

10 June 2020

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