1713762 (Refugee)

[2022] AATA 5049

1713762 (Refugee) [2022] AATA 5049 (16 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)

CASE NUMBER:  1713762

COUNTRY OF REFERENCE:                   China

MEMBER:Penelope Hunter

DATE:16 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2022 at 4:32pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christianity – member of Local Church – attended meetings with grandparents and formed group at high school – on return visit, took bibles for friends and their parents – friends later arrested and tortured, implicating applicant – credibility – no adverse profile before departure or now – departed on student visa – return visit during period of disengagement from faith – delay in applying for protection – period as unlawful non-citizen, marriage and childbirth – reconnection with faith and support from church community during period of personal difficulties – attendance, participation, supporting statements and photographs – conduct otherwise than to strengthen claim – country information – non-recognised religion – proselytising and religious education of children not permitted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (6), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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 dependants.

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 13 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas on 23 December 2015. The delegate refused to grant the visas on the basis that they were not satisfied that they were persons to whom Australia owed protection obligations under the Act.

3. For the following reasons, the Tribunal has determined that the decisions under review should be remitted for reconsideration.

   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 (Cth). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Claims and evidence

10. The first-named applicant (the applicant) is a [Age 1]-year-old female citizen of China who arrived in Australia for the first time [in] January 2008 on a Subclass 571 student visa. She was then granted a further Subclass 571 student visa on 5 February 2008 and a Subclass 572 student visa on 26 February 2009. The applicant returned to China, from [September] to [October] 2009, and she has remained onshore since. On 28 February 2010, the applicant’s Subclass 572 student visa ceased due to non-compliance. The applicant then became an unlawful non-citizen until she applied for the protection visa under review on 23 December 2015.

11. The second named applicant (the applicant child) is the daughter of the applicant. She is a [Age 2]-year-old female citizen of China who was born in Australia on [Date 2, Year 4]. In their protection visa application, the second-named applicant indicated she held no claims of her own and was reliant upon her mother’s claims for protection.

12. In support of the visa application, the applicant provided to the Department the following documents:

    i.A copy of a marriage certificate between the applicant and [Mr A] in [Suburb 1] NSW on [Date 1, Year 4].

    ii.A copy of the birth certificate of the applicant child.

    iii.A copy of the applicant’s Chinese passport.

    iv.A statutory declaration made by the applicant on 23 December 2015.

13. In her statutory declaration of 23 December 2015, the applicant set out the following information in relation to her claims for protection (in summary):

    i.She was born in [Village], [Town], Fuqing City, Fujian Province, China. She did not have a happy childhood because her parents were incompatible with each other. In [Year 1], when she was three, her father went abroad, and she has not seen him again. Her mother favoured her [brother], and sent her to live with her grandparents who brought her up. Her grandparents were Christians, and she would follow them to attend secret meetings of the Local Church.

    ii.When she began to live on campus at high school she could not attend meetings of the Local Church because the PRC authorities have never allowed any religious groups or practices on campus. While at high school she had good friends, [Mr B] and [C], who were also members of the Local Church. They also protected her from a high school bully, [D]. [Mr B] led a secret meeting group at [High School], and the applicant became one of the members of the secret meeting group. She attended the group regularly until she graduated in July [Year 1].

    iii.After graduation, arrangements were then made by her father’s friends for the applicant to study English in Australia. Before she departed, she attended Local Church meetings organsied by [Mr B]’s parents. While in Australia, she kept in contact with [C] and [Mr B] by internet or phone.

    iv.Between September 2009 and October 2009, she returned to China because her grandfather was seriously ill. She took this opportunity to bring three copies of the Recovery Version of the Bibles to [Mr B], his parents and [C] as gifts. During the visit [Mr B]’s parents organised a seven-day Bible study class for new believers during the public holiday of National Day. The applicant was invited to give a presentation about church activities in Australia at the class.

    v.When she returned to Australia, she remained in contact with [Mr B] and [C]. During the following years she experienced many difficulties. Firstly, she lost her father’s financial support, which made it hard for her to continue her studies. Her parents formally divorced in [Year 2] and she lost all contact with them. In [Year 3] her grandfather passed away due to poor health. Later she fell in love with a Chinese overseas student, also from Fuqing. The applicant child was born, and they married on [Date 2, Year 4]. Unfortunately, they were too young for marriage and separated around [Month, Year 4], and she became a single mother.

    vi.Fortunately, the Lord Jesus was always with her and with his love, and that of her church brothers and sisters, she was able to overcome one difficulty after another. Her husband also came back to her.

    vii.In October 2015, [Mr B] and [C] had organised younger people to study the Recovery Version of the Bible at sister [Ms F]’s home. They were raided by [D], the applicant’s high school bully, who had become a police officer, and many police. The Recovery Versions of the Bible that the applicant had given them were confiscated and [Ms F], [Mr B] and [C] were arrested.

    viii.While under arrest, the applicant’s friends were subject to cruel and inhuman treatment by [D] and the police at the detention centre. Under torture they made confessions about the applicant’s friendship and the Bibles that she had provided came to the attention of the police. She is now considered a key member of an evil cult according to the PRC authorities.

    ix.In Australia she insists on attending the Local Church actively and regularly. If she does go back to China, she will be subjected to persecution by the Chinese government.

14. The applicant underwent an interview with a delegate of the Department on 8 June 2017. The delegate found that her claims regarding taking Bibles to China lacked credibility and that the applicant had embellished and added to her claims at interview. It was accepted that the applicant was a Christian and follower of the Local Church, however, the delegate was satisfied that the applicant could return to China and resume practising her faith in an unregistered church without facing a real chance of religious persecution by the authorities. Therefore, the applicant and the applicant child were not found to be refugees or entitled to complementary protection.

    Tribunal application

15. The Tribunal received an application for review from the applicant on 28 June 2017.

16. On 8 July 2022, the applicant’s representative provided the Tribunal with the following documents:

    i.A letter of support from ‘responsible brothers of the Local Church’ in Sydney dated 5 July 2022.

    ii.A letter of support from ‘responsible brothers’ [Mr G], [Mr H] and [Mr I] of the Local Church in [Suburb 2] dated 3 July 2022 and a translated copy.

    iii.A letter of support from [J] dated 29 June 2022 and a translated copy.

    iv.A letter of support from [K] dated 3 July 2022 and a translated copy.

    v.A letter of support from [L] dated 29 June 2022 and a translated copy.

    vi.A letter of support from [M] dated 2 July 2022 and a translated copy.

    vii.Various photos of the applicant purportedly attending Local Church events from 2018 onwards.

17. On 14 July 2022, the applicant’s representative provided the Tribunal with an article from Hank Hanegraaf from the Christian Research Institute and Gretchen Passantino from Answers in Action and Fuller Theological Seminary titled “The Local Church ‘Genuine Believers and Fellow Members of the Body of Christ’ – Testimonies of Three Prominent Christian Organisations”. 

18. The applicant appeared before the Tribunal on 28 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant and applicant child were represented in relation to the review and their representative also attended the Tribunal hearing.

    CONSIDERATION OF Claims and evidence

    Nationality

19. It is accepted that the applicant is a national of China on the basis of her Chinese passport submitted to the Department and her oral evidence. It is also accepted that the applicant child is the child of Chinese nationals on the basis of her birth certificate. The Tribunal will assess their claims on this basis. The Tribunal further accepts that the applicant and the applicant child do not have the right to reside in any country other than China. The Tribunal finds that the applicant and the applicant child are not excluded from Australia’s protection by s 36(3) of the Act, and China is the receiving country for the applicant for the purposes of s 36(2)(aa).

    Does the applicant have a well-founded fear of persecution and is the applicant a refugee?

20. The mere fact that a person claims to fear 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, an applicant’s claim 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.

21. 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 the 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 of the Act. 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; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.

22. The Tribunal has considerable concerns about the reliability of the information presented by the applicant to support her claims for protection and is not satisfied that all of them are truthful. It does, however, accept, as did the delegate in the first instance, that she is a Christian and a follower of the Local Church. DFAT provides the following information about the Local Church in its 2019 report:

    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.[1]

    [1] DFAT Country Information Report, People’s Republic of China, 3 October 2019, at para 3.105

23. The applicant was able to discuss without hesitation the beliefs of the followers of the Local Church, the role of Witness Ni, and the importance of the Recovery Version of the Bible. The applicant has been consistent in her claims that she came to follow the Local Church through the adoption of the beliefs of her grandparents. She narrated to the Tribunal that her childhood as a follower was without incident and consisted of accompanying her grandparents to various local houses for small group worship. It is accepted that she was attracted to friends with similar beliefs at school and that while at school she continued her worship through small group study, consisting of reviewing Bible passages and prayer. The applicant was able to continue to practise her religion without incident. The Tribunal accepts her evidence that although she worshipped secretly, she did not have any difficulties with the authorities in China prior to her departure in 2008. Consequently, the Tribunal finds that she did not have an adverse profile due to her religious activity growing up in China.

24. The Tribunal also accepts the evidence of the applicant that she became distant from her faith upon arrival in Australia, particularly because of her adjustment to a new country and further estrangement from members of her family. What is not accepted is that at this point in her life in 2009, on her return to China, the applicant transported with her three copies of the Recovery Version of the Bible for her two friends and their parents. Firstly, at this time the applicant claimed to be estranged from her faith. In these circumstances, the Tribunal does not accept that a priority for the applicant would be the transportation of Bibles. Secondly, the stated purpose of this trip was to visit her grandfather who was ill, yet she did not consider gifting him a copy of the Bible. The applicant claims that her grandparents were also dedicated followers of the Local Church and acknowledged in her evidence to the Tribunal at hearing that they did not have a Bible. If the Bible was an important gift for followers, as the applicant claimed, the Tribunal did not accept that she would neglect to bring a copy for her family. Thirdly, as she was estranged from her faith at this time, the Tribunal does not accept that the applicant would be engaged in a seven-day Bible study class in Fuqing city, when again, the purpose of her trip was to visit her ill grandfather who lived outside the city. The Tribunal considers that it is even less likely that the applicant would be giving presentations about the Local Church experience in Australia to a Bible study class in China when she was not actively engaging in this experience. Her evidence of attendance at Bible study and the regularity of photo taking appeared contrived for the purposes of assisting a protection claim. Fourthly, having acknowledged that she was aware of the risk associated with being found in possession of a Recovery Version of the Bible in China, the Tribunal does not accept that the applicant, who was estranged from her faith at the time of her travel, would have taken this risk. The Tribunal does, however, accept that the applicant’s return to China in 2010 was otherwise without incident.

25. Consequently, the Tribunal also does not accept the evidence of the applicant that in 2015, Recovery Bibles that could be linked to her were found by the police during a raid on the Bible study class of [Mr B] and [C]. As the Bibles were allegedly given to different households, the Tribunal is not satisfied that all three versions would be conveniently present when the police raided the youth Bible study class. The Tribunal found the evidence of the applicant as to how she came to find out about the raid unconvincing. It does not accept that her friends would so quickly and accurately identify her as the supplier of the Bibles. It does not accept that six years later, evidence of the applicant participating in Bible study in 2009 would be able to be located on their phones. The Tribunal also found the applicant’s evidence as to how she became aware of events following the claimed arrest of her friends and subsequent investigations to lack consistency and clarity. The Tribunal takes note of the changes in the applicant’s evidence that she is now being sought by the police not only as the leader of an evil cult but also as a westerner spreading religion in China, and considers that the applicant has contrived these circumstances for the purposes of founding a claim for protection. Further, the circumstances have been manipulated to establish a scenario to justify why she delayed making a claim, having been present in Australia for over eight years before lodging a protection visa application.

1. The Tribunal does not accept that the applicant is now or was ever regarded by the authorities in China as a “key member of an evil cult” or that they would consider that the “Australian Local Church is using her to influence an evil cult” as she has claimed. It is not accepted that the authorities regularly question her grandmother as to her whereabouts. The authorities would be aware that she has not been present in the country since 2009. There would be no necessity to make repeated and ongoing visits to her grandmother. Once more, the Tribunal considers that she has contrived this incident for the purpose of facilitating a claim for protection. The Tribunal does not accept that the applicant has a profile known by the authorities in China as a follower of the Local Church, or that they would have any interest in her due to her past religious activities in China for this reason.

2. The fact that the Tribunal does not accept the claims by the applicant that she transported three Recovery Bibles to China in 2010, and the consequences that she claimed flowed from it, does not alter the findings of the Tribunal that the applicant grew up as a follower and within the Local Church community in China.

3. As to the applicant’s ongoing religious profile, she has claimed that she restored her commitment to her faith around [Year 4], and denied when questioned by the Tribunal that such action was taken to found a claim for protection. The applicant attributed the reconnection to the loss of her grandfather, difficulties she was experiencing as a young mother and problems in her marriage. The applicant was able to speak in a meaningful way about how her return to her faith was able to assist her at this time and how she found a community through it. It is accepted that she found social support in Australia through connecting with the Local Church here. The applicant has produced a number of statements from supportive witnesses and church leaders regarding her regular and ongoing attendance at the Local Church in Australia. It is noted that some of this corroborative evidence dates her attendance at the Local Church several years prior to lodgement of the application under review. There is a considerable volume of material that has been presented documenting the applicant attending regular worship, training events and blending conferences at different venues around Australia over a number of years. The applicant was able to discuss with the Tribunal the events that she participated in during blending conferences, and the photographs she presented were able to give context to her evidence about worshipping events. Despite the concerns of the Tribunal regarding the credibility of the applicant, and her claims arising from her travel to China in 2009, it cannot ignore the volume of material that supports her activities in Australia. Therefore, the Tribunal is satisfied that her conduct in Australia is not required to be disregarded under s 5J(6) of the Act. It is acknowledged that she was able to speak freely about her activities in Australia at the hearing and the meaning of her faith to her. The Tribunal accepts that the applicant identifies as a Christian, that she has for a number of years regularly attend the Local Church in Australia, and that she is a committed practitioner.

4. The Tribunal further accepts that the applicant currently participates in Local Church activities in Australia several times a week. This involves weekly church services at the [Suburb 3] Community Centre; in addition she serves as a leader in children’s meetings and weekly Bible study online or in person. On top of these activities, she openly proselytises, and engages in retreats and training conferences. Her religious activities involve her family; the applicant is now the mother of two children, having had a second [child] in [Year 5], after she had lodged the application under review. The applicant child is being educated at a religious school. The applicant claimed that as an adherent of the Local Church she intends in the future to continue to practise her beliefs, and continue with her practice of instructing and openly sharing her beliefs with her children. She told the Tribunal that her mission was to continue to evangelise and spread the word of God. She claimed that she could not practise her religion without harm in China given the extent to which she openly practises in Australia, proselytises amongst her local community and provides religious instruction to her children.

5. Accepting that the applicant is a Christian and committed practitioner of the Local Church, the Tribunal has considered the risk of harm to the applicant on the basis of her religion if she was to return to China in the reasonably foreseeable future. The Tribunal was unable to place much weight on the evidence of the applicant as to the current treatment of many of her fellow former Local Church practitioners in China as such evidence was tainted with the claim that they were all arrested, tortured and/or subject to monitoring due to the discovery of the Recovery Bibles she delivered.

6. According to DFAT, China officially recognises five religions, including Christianity.[2] However, it is assessed that, overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s expression of the religion itself is perceived by the CCP to be closely tied to other ethnic, political or security issues.[3] The Tribunal notes the conclusions of the delegate that the applicant would be able to return to practise her religion at an unregistered church without intervention from the authorities. However, the Tribunal is not satisfied that this position remains reflective of the country information in China. In recent years, it has been reported that the Chinese government demonstrated increased state control, and even within Fujian has shown less tolerance towards freedom of religious worship. It is noted that regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years of age is not permitted.[4] According to the 2021 US Department of State International Religious Freedom report, the enforcement of this varies from state to state,[5] yet the same report cites several incidents of recent enforcement in various states in relation to Christian children, including the following:

   ·‘RFA reported that on April 21, police in Chengdu City, Sichuan Province, raided the Early Rain Covenant Church (ERCC) during a study session and detained 19 Church members, including 12 children. At the local police station, officers questioned the children without their parents present, in contravention of the law regarding detention of minors. According to a Church member, police released 16 of the 19 persons after detaining them for 11 hours and continued to hold three individuals without giving a reason to their families.’[6]

   ·‘International Christian Concern reported that on August 22, police in Chengdu City entered the home of an ERCC member during a Sunday worship service and arrested 28 individuals, including 10 children. During the arrests, police injured Pastor Dai Zhichao on his arm and confiscated his mobile phone. An ERCC member said police beat many individuals in detention and when the children became unruly, officers threatened to hit them on their heads.’[7]

   ·‘Bitter Winter reported that on October 23, approximately 100 children from preschools of the district of Jiaocheng in Ningde City, Fujian Province, underwent a program of “preventive education.” The children, ages three to six, received picture booklets, viewed a panel exhibition, and watched cartoons warning against “xie jiao and illegal religion.”’[8]

   ·‘In March, Open Doors USA reported authorities using CCTV observed a woman in Shandong Province taking her child to a state-affiliated church. Officials reprimanded her for violating the ban on children participating in religious activities, such as attending church.’[9]

   [2] DFAT Country Information Report, People’s Republic of China, 22 December 2021, at para 3.22

   [3] As above at 3.27

   [4] As above at 3.26

   [5] US Department of State Report on International Religious Freedom: China (includes Hong Kong. Macau and Tibet), 12 April 2022 at page 55

   [6] As above at page 19

   [7] As above at page 19

   [8] As above at page 31

   [9] US Department of State Report on International Religious Freedom: China (includes Hong Kong. Macau and Tibet), 12 April 2022 at page 39

7. The Local Church, or Shouters, is not a state sanctioned church. Some religious movements known as xie jiao are illegal in China and the Criminal Law provides for prisons sentences of up to seven years for individuals who use superstitious sects, secret societies or religious organisations to undermine the state’s laws or administrative regulations.[10] DFAT comments in its most recent report that it is understood that the Shouters are not as actively pursued in China as they once were, and it is possible that they may have been delisted as xie jiao but also acknowledges that different sources offer conflicting information.[11] According to the most recent US Department of State report, Shouters are still labelled as xie jiao organisations.[12] It is further reported that a person who attempts to proselytise for a church or is seen as active within a church that is identified by the authorities as a Shouters church faces a high risk of official discrimination, and identification as a Shouter, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment, under the same provisions of law as other xie jiao.[13]

   [10] DFAT Country Information Report, People’s Republic of China, 22 December 2021, at para 3.53

   [11] As above at 3.73

   [12] US Department of State Report on International Religious Freedom: China (includes Hong Kong. Macau and Tibet), 12 April 2022 at pages 8 and 31

   [13] DFAT Country Information Report, People’s Republic of China, 22 December 2021, at para 3.74

8. Current reporting on the situation for Christians in China suggests that there are increased restrictions on Christian practice, which has involved the strengthening of controls on places of worship, travel for religious purposes and children’s education. Generally, there is no freedom of religious expression or Christian proselytising tolerated without government attention or interference.

9. As the Tribunal has found the applicant to be a genuine adherent of the Local Church, the potential for the applicant to come to the adverse attention of the authorities in China cannot be considered remote, on the basis of the country information review above and given that her religion is potentially identified as a cult, and involves a practice of proselytising and a commitment to the religious instruction of her children. The Tribunal finds that engaging in such activities could cause harm to the applicant. Once the applicant comes to the attention of the authorities, she risks detention, arrest and prosecution due to her religious beliefs. It follows that the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm in China for the reason of her religion. Accordingly, the Tribunal finds that there is a well-founded fear of persecution in China on account of her religion.

10. As the harm that the applicant fears is from the state itself, the Tribunal accepts that relocation measures will not be available to the applicant in China. Further, the Tribunal is satisfied that the chance of persecution relates to all areas of China.

11. Further, given the manner in which the practice of her faith has developed, the Tribunal finds that it would be unreasonable to expect her to be discreet and secretive about her religion so as to reduce the risk of being arrested and detained.

12. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act.

    Applicant child

13. The visa application set out that the applicant child was raising no personal claim but relying on the claims of the applicant. Before the Tribunal further evidence was provided about the ongoing religious activity of the applicant child. She has for a number of years followed the applicant to Local Church meetings, she regularly attends children’s meetings, at which the applicant is a leader. She has also been a participant with her family at several Local Church conferences. In addition, the applicant has been receiving instruction at a religious school in Australia since the age of [Age]. Although she may be too young to have yet affirmed her personal commitment to the Local Church, the participation in Christian activities is a daily part of her school and family life.

14. The applicant submitted that the applicant child was used to participating in Local Church services and proselytising, which were signature activities of her religious life in Australia. She had not been taught to be discreet in her religious practice and could easily come to the attention of others who would wish her harm because of her religious beliefs, and also draw further attention to the applicant. With only an aging great grandmother in China, the Tribunal considers that the applicant child would be particularly vulnerable should anything happen to the applicant.

15. As set out above, religious education to those under 18 in China is not permitted. It is also accepted that the applicant child could not engage in religious practice in China in the manner in which she currently does. She could also be subject to questioning from the authorities and possible detention. It is considered that such activities could cause harm to the applicant child. It follows that the Tribunal is satisfied that there is a real chance the applicant child will suffer serious harm in China for the reason of her religion. Accordingly, the Tribunal finds that there is a well-founded fear of persecution in China on account of her religion.

16. As the harm that the applicant child fears is from the state itself, the Tribunal accepts that relocation measures will not be available to the applicant child in China. Further, the Tribunal is satisfied that the chance of persecution relates to all areas of China.

17. In addition, given her age and the manner in which the practice of her faith has developed in Australia, the Tribunal finds that it would be unreasonable to expect her to be discreet and secretive about her religion so as to reduce the risk of being arrested and detained.

18. For the reasons given above, the Tribunal is satisfied that the applicant child is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act.

    decision

19. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

    Penelope Hunter
    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.

    …