1714393 (Refugee)

1714393 (Refugee) [2023] AATA 1316 (18 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Harry Huang (MARN: 9579277)
CASE NUMBER: 1714393

COUNTRY OF REFERENCE: China
MEMBER:Christine Cody
DATE:18 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2023 at 7:10pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Local church – Shouters – distributing Recovery Bibles – evangelising – detention – church involvement in Australia – exit procedures – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Peoples’ Republic of China (China), applied for the visa on 27 May 2016.
Migration history
The applicant’s migration history[1] is as follows:
·     16 March 2016: granted Visitor visa
·     [March] 2016: left China legally using her passport
·     [Later in] March 2016: arrival in Australia with Visitor visa
·     27 May 2016: Protection visa application lodged
Department file[2]
[1] This is sourced from the application forms and the delegate’s decision record provided to the Tribunal by the applicant.
[2] There is no certificate of non-disclosure on the Departmental file.
The applicant provided protection visa application forms, 2 Statutory Declarations (translated) dated 27 May 2016 and a copy of her passport. The second statutory declaration confirmed her understanding of the contents of her first statutory declaration which represented her claims accurately and completely.
The applicant’s history and background were provided in her protection visa application forms as follows:
·     The applicant was born in [year] in Fuqing, Fujian, China. She is a Chinese citizen, as are her parents and her brother:
o   [Name] (applicant’s father) born in [year]
o   [Name] (applicant’s mother) born in [year]
o   [Name] (applicant’s brother) born in [year]
·     Her religion is Christian (the Local Church), her ethnicity is Han, and she speaks, reads and writes in Chinese (Mandarin dialect).
·     She resided at the following addresses in China:
o [Birth] to June 1999: [Village 1], [Town 1], Fuqing City, Fujian Province, China
o June 1999 to February 2016: [Village 2], [Town 1], Fuqing City, Fujian Province, China (she moved here, in accordance with custom, because she got married: statutory declaration).
·     She was educated [between specified years] (Primary School) and [between specified years] (Middle School).
·     She lists the following employment history:
o From January 2012 to February 2016 she engaged in odd [jobs] in China.
o From March 2016 to present she was unemployed in Australia
·    In June 1999 the applicant reached the age of marriage. Her parents arranged her marriage to [Husband A] who lived in [Village 2], [Town 1]. They have 2 children who are Chinese citizens:
o [Name] – born [DOB]
o [Name] – born [DOB]
Her claims are set out in her statutory declaration and can be summarised as follows:
·     She was educated until [specified year], when she completed her Middle School. As she was a female, the family did not support her continuing education; her parents were farmers.
·     Shortly after she became pregnant with their second child, her husband left China, in late 2001, and went to work overseas. He never returned, and later his parents told her that [Husband A] had started a new family with another woman overseas and would not return to China.
·     Although she was separated from her husband, she had to remain at his home village because if she returned to her home village, she would be subject to huge social pressure and her parents would lose face.
·     The applicant was unable to obtain any financial support from her ex-husband or his family so in order to survive she had to work odd jobs, [details deleted].
·     In 2007 the applicant met her son’s primary school teacher, [Teacher A] who was a Christian and secret member of the local church[3]. This woman evangelised the applicant, and in May 2008 the applicant was baptised at [Teacher A’s] home, and since then she has been a devout Christian.
[3] The local church (not capitalised) is a denomination of Christianity; it is referred to as an “evil illegal cult” with its members referred to as “shouters”, by the authorities.
·     As the local church is regarded as an evil cult by the Chinese authorities, members of this religion have to hold meetings and attending church activities in secret. [Brother A] was in charge of organising the Lord’s Day meeting on Sundays and praying meetings on Saturdays; [Teacher A] organised women’s meetings which occurred on Wednesdays.
·     In May 2012 [Teacher A] was accused of spreading teachings of ‘evil cult’ and organising illegal meetings. She was dismissed by the school and became a target of the Public Security Bureau (‘PSB’).
·     The applicant’s parents were working at that time at a [business 1] in Shanxi, so the applicant arranged for [Teacher A] to hide initially in her parent’s house at [Village 1]. The applicant then assisted [Teacher A] to escape to Shanxi.
·     [In] May 2012 the applicant was arrested by the PSB for potentially being involved with [Teacher A’s] ‘illegal’ activities and knowing where she was. The applicant insisted that [Teacher A] was her son’s teacher and that she did not have any involvement in evil cult activities. [Brother A] tried to rescue the applicant by paying bribes to the police.
·     [Later in] May 2012 the applicant was released by police.
·     Between July-August in the years 2013, 2014 and 2015, the applicant would deliver the Recovery Bible (supplied to her by [Brother A]) to Shanxi.
·     [In] February 2016 [Teacher A] was arrested by police in Shanxi. [Brother A] had been visiting and he was also arrested. Later the applicant’s parents’ friends informed her family that the police were searching for her for transporting illegal Bibles. The applicant went into hiding from this point onward.
·     The applicant’s father assisted her in escaping from China with the assistance of a friend who worked at [a specified] company in Fuzhou. The applicant was able to leave China from Fuzhou [in] March 2016.
·     After the applicant left China, her parents were subjected to investigations by the PSB even though they were not personally involved in the Local Church. The police suspected that they assisted [Teacher A] to develop the Local Church in Shanxi and that they assisted the applicant to leave China.
·     The applicant is now regarded as a key member of an illegal group of an evil cult by the Chinese authorities.
·     If she returns to China, she will be arrested by the police and suffer inhumane treatment and cruel torture.
·     She continues to attend the local church in Australia
The interview with the delegate
The delegate included a significant amount of the evidence at interview in the decision record[4], relevant extracts of which are set out below (other evidence from the interview is referred to in the decision when relevant):
[4] Provided by the applicant to the Tribunal
·     The applicant was asked when she got married; she replied that it was in June 2009. When asked if this information was correct, she replied in the affirmative. The applicant was asked about her residential address in China. She indicated that she left her hometown in [Village 1], [Town 1], Fuqing City, Fujian and moved to [Village 2], [Town 1], Fuqing City after she got married. When asked again when she got married, the applicant continued to say that it was in June 2009. The delegate put to the applicant the discrepancy between her written statement and her verbal response, i.e. that she claimed to have been married in June 2009 however in her written statement she claimed to have moved to her husband's house in June 1999 and lived there until February 2016. In response, the applicant said that she had made a mistake with the year and that she did get married in June 1999. She said that she used to live in her husband's house, however she moved out in 2002 [the delegate said that this was contradictory to the information she had provided in her protection visa application]. The applicant was asked for the address of the place she lived in China from 2002 to 2016, she indicated that she did not know the address and that she lived in the same village, [Village 2].
·     When asked about her family in China the applicant indicated that her parents were farmers and they worked outside their hometown and her brother worked in a [certain industry]. When asked if they were involved in any religion the applicant replied in the negative. She said that they were atheist. She then changed this statement to say that they were Christians. When questioned further on this matter, the applicant indicated that after she was baptized in May 2008, she preached to her parents and in 2009 they became Christians.
·     At the interview the applicant was asked questions in relation to her religious belief. She said that she is a Christian, a member of the local church. She said that she was baptized in May 2008. When asked about her religious beliefs, she responded that her 'religious belief was to pray to the Lord and attend all the gatherings'. When asked what her religion meant to her, she said that she will always believe in the Lord and that she is free from all the earthly sufferings and all the sorrow and the pressure.
·     The applicant was asked about her religion in general to which she said that she will attend all gatherings regularly. When prompted she said that because she believes in Jesus Christ she believes she can gain eternity.
·     When asked if she has attended the Three Self Patriotic Church or any other churches in China, she stated that she has not attended any other churches and that she is a loyal member of the local church. The applicant was then asked the difference between the local church and the other churches, to which she replied, "because the Lord she believes is the true Lord and Lord of everything".
·     The delegate put to the applicant that according to her application she was found guilty of a crime in China. She agreed. The applicant was asked about that crime, and she said that she was told that her religion is a cult and that she went against the government. She said that the Chinese authorities knew that she was a member of the local church in 2012. When asked how the Chinese authorities found out about her involvement in the local church, she indicated that it could be because some of her actions had suggested that she was a member of a local church. When asked to elaborate on the matter, the applicant said that it was because she attended the church gatherings and spread the gospel [the delegate was concerned that her response was vague and generalized and she was asked if she has any evidence to substantiate this, to which she replied in the negative]. She also said that 'maybe the police found out when she was trying to spread the gospel or maybe someone had reported her'.
·     When asked about the situation of her arrest by the Chinese authorities she said that she was arrested when she was spreading the gospel to other people in [Village 2]. She said the police suspected her and followed her. She said that she was detained for two weeks, and she was released after [Brother A] bailed her out.
·     The delegate put to the applicant that according to her application form, she had responded in the positive when asked if she was subjected of a criminal investigation or had criminal charges pending against her. She was asked if an arrest warrant was issued against her in this matter, to which she replied in the positive. When asked if she has the arrest warrant, she replied that the Chinese authorities showed her the arrest warrant but then they took it away. She was asked if there was any pending arrest warrant against her currently, the applicant replied in the negative [this indicated that the only arrest warrant existed when she was arrested in 2012]. The applicant was asked why the Chinese authorities would need to show her an arrest warrant [in 2012] if she was caught while spreading the gospel to the public. She responded becuase she was spreading a cult and it was forbidden.
·     The delegate put to the applicant that there was discrepancy between her written statement and her verbal testimony: according to her written statement she was arrested by the PSB because of her close relationship with [Teacher A] and the police suspected that she may be involved in [Teacher A’s] illegal activities, not because she was caught spreading the gospel to the public. The applicant responded that they suspected that she was involved but they did not have hard evidence and that is why they followed her for this long.
·     At the interview the applicant was asked about her children, she said they were attending school in China. When asked about their religious belief, she indicated that they were not Christians. The applicant was asked why she did not convert or teach her children about Christianity. The applicant replied that their courses at school were very intense, so they do not have time to study about religion. Further, they study after school. The delegate expressed concern that although the applicant claimed to be a devout Christian, she did not teach Christianity to her children even though she claimed that 'Lord is everything to me'.
·     The applicant was asked why she was seeking protection in Australia. She said that Australia is tolerant towards religious belief. The applicant was asked what would happen to her if she was to return to her country, to which she replied that she will be imprisoned. She was asked why she would be imprisoned by the Chinese authorities if she was to return to her country, she stated that she was arrested and put in the detention centre for two weeks in 2012.
·     The applicant said at the interview that she was of adverse interest to the Chinese authorities because they accused her of spreading the gospel which is a bad influence on society. It was put to the applicant that she claimed that she was regarded as a key member of an 'illegal group' by the Chinese authorities therefore if she was of adverse interest to the Chinese authorities it would not be possible for her to depart her country. The applicant replied her friend (who knew someone in customs) had helped her to leave the country. The delegate put to the applicant that country information suggests that if the applicant was of adverse interest to the Chinese authorities her name would be listed in the computer network; therefore, she would have been detected by the Chinese authorities at the airport, however, this was not the case.
·     The applicant stated that she attended the church gatherings in [Suburb 1]. When asked the address of the church, she said that it was near [a landmark]. She said that she attended church every Wednesday, Saturday night and Sunday as well. The applicant was asked who the elder of the church is. She replied that she did not get to know the elder and that she only needs to know God.
·     Additionally, the delegate noted that the applicant did not provide a letter of support from the elder or any congregation member of the church. When questioned on this matter, she said that she did not want to get a letter from the elder because she does not want them to think that she was coming to church for a purpose. She proceeded to say that she attended the church for Jesus Christ.
·     The delegate noted that though she claimed to have been arrested in May 2012, she experienced no problems with the Chinese authorities until February 2016, some four years later. When this concern was put to the applicant, she responded that after her release she became very careful in her actions.
The delegate’s decision
The delegate did not accept that the applicant’s claims of persecution in her country were credible and was not satisfied with the applicant’s responses at interview.
The delegate considered the applicant was unable to provide in-depth information or knowledge about the religion she professed to have embraced for more than nine years, i.e. since 2008. In assessing her testimony, it was noted that the applicant had claimed that she was baptized in 2008, attended church gatherings regularly in China, have been a loyal member of the local church, spread the gospels to the people in China and have attended frequent gatherings at a local church in Australia. Her inability to provide some significant knowledge of her faith raised questions about the authenticity and credibility of her religious claim of persecution in her country. The delegate considered that the applicant's inability to provide information in meaningful details raises question about her adherence and commitment as a Christian of the Local Church.
The delegate did not accept her evidence about not teaching her children her religion. The delegate opined that if it was true that she was committed to her religious belief, she would have exposed them to this religion, particularly since she has indicated she took her children to visit her parents during the summer school holidays between July and August 2013, 2014 and 2015, which would have given her ample time to teach them about Christianity.
The delegate did not accept that the applicant was telling the truth about her alleged detention in China (noting inconsistencies in her claims: she was arrested either because of [Teacher A], or because she was followed by the police and caught spreading the gospel). The delegate also considered it highly unlikely that the police would have provided her with an arrest warrant given her claim that she was caught in the act of spreading the gospel of an illegal cult.
The delegate did not accept that the applicant had been found guilty of a crime when she was in China or that she is being currently investigated by the authorities in her country.
The delegate noted that the applicant experienced no problems with the Chinese authorities after her alleged detention in May 2012. It is only logical to expect that she would have been monitored by the Chinese authorities since she was regarded as a person of adverse interest who has close relationship with [Teacher A], a person wanted by the Chinese authorities. Despite this, she made several visits between July and August in 2013, 2014 and 2015 respectively to Shanxi and had claimed to have secretly transported the 'Recovery Version of Bibles' to [Teacher A] to support her church activities there.
The delegate considered that the circumstances of the applicant's departure from China to Australia support a finding that the applicant is not a person of adverse interest to the Chinese authorities. The applicant departed China through a major port with valid documents showing her true identity and had encountered no detrimental repercussion from the Chinese authorities. The delegate found that the applicant is not of any concern to the authorities in China.

The delegate considered it implausible that the applicant who claimed to attend church every Wednesday, Saturday night and Sunday in Australia did not know the elder or the name of the elder of the church nor was she able to give the address of the church she claimed she visited regularly in Australia. The delegate noted that she provided no support letter from an elder of the local church in [Suburb 1] nor from any members of the congregation. The delegate considered that if she genuinely fears for her safety in her country and is a committed adherent of the local church, she would have provided the relevant evidence in support of her church attendance or activities in Australia. At the time of this decision, the applicant had also not provided proof of her baptism.
The Tribunal
The applicant lodged an application for review with the Tribunal on 5 July 2017. A copy of the delegate’s decision record was provided to the Tribunal. The applicant was represented by her agent in relation to the review.
On 19 December 2022 the Tribunal informed the applicant that it did not have sufficient information to make a positive decision, and it invited her to attend a hearing on 20 January 2023. It requested that all documents upon which she relies should be provided by 13 January 2023, and a written submission setting out all claims made and maintained by the applicant should also be provided by that date, accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims.
In the hearing response it was stated that the applicant relied upon the documents submitted to the Department and the Tribunal. The requested submission and statutory declaration were not provided.
On 12 January 2023 the applicant provided the following:
· Translation and original of Notice on Attending the Political Study Class issued by Fuqing Municipality [Town 1] Police Substation addressed to the applicant’s parents, stating that the parents are required to attend a 10-day class because their daughter (the applicant) “is one of the important Members of the Evil Cult the "Shouters", who fled to abroad”. It is submitted that this is evidence that the applicant is regarded as an important member of ‘Evil Cult’;
· Support letters from 4 church members, submitted as evidence that the applicant has been attending the Local Church in Australia
The hearing
The applicant appeared before the Tribunal on 20 January 2023 to give evidence and present arguments. The agent was present. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal explained that it would make up its own mind and was not bound to accept or reject what the Department accepted or rejected.
The applicant burped a number of times throughout the hearing, saying that she had gut issues. The Tribunal offered her a break and confirmed that she should ask for a break whenever she wished. Despite the Tribunal asking her not to do so, to ensure that all evidence could be accurately conveyed, the applicant interrupted the interpreter on a number of occasions.
Some of the evidence given at hearing is set out below:
·     The applicant told the Tribunal that her application forms and statements are all true and correct.
·     She remains married. Her 2 children live with her parents at [an address in Village 1] (this was her address all of her life until she married and moved to [an address in Village 2]). They attend school. She stated that there are no street names in any of the villages, just numbers. She stayed at her in-law’s place until 2002 when she rented a place nearby, in the same village, however she doesn’t know the address.
·     Her brother also resides in [Village 1], doing [certain] work; he has always lived there.
·     In Australia the applicant works roughly 4-5 days / week (not fixed times) as [an occupation 1]. She sends a little money back home as the children need tuition fees and money for their living costs.
·     When asked what would happen if she returned to China, she said, based on my feeling, I will still be person of interest, chased after by Chinese government. When the Tribunal asked why, she said because in the past, just in the last 1-2 years, the local police are visiting her parents’ place. In October 2022 the police went to the home to look for her, however, she was not there, but they took her parents for re-education. She said that since she left in 2016, they come to her parents’ home to look for her. The Tribunal put to her that the authorities have access to very sophisticated technology[5]; they would know that she was out of the country so it did not understand why that they would send someone to look for her (as opposed to sending someone to ask questions about her). In response she said she does not know.
[5] As noted in the DFAT Report
At the end of the hearing when the Tribunal indicated it had concerns with her credibility and claims, the applicant said that she was concerned she will have to go back to China. If she is arrested in China this will have significant psychological impact on her children. The Tribunal noted that it had not made up its mind and it would be sending a s.424A letter. It did send such a letter and has considered the applicant’s response.
Further relevant evidence and information is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
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, the fact that the 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.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicant, including pursuant to s 424A of the Act when required[6], concerns and inconsistencies which undermined her credibility and claims about her circumstances in China and in Australia
[6] The Tribunal sent a s.424A letter and received a response; it has not stated in this decision every occasion that information was put pursuant to s.424A of the Act.
Firstly, the Tribunal was concerned that details of the applicant’s claims about her background were changing and inconsistent, as set out below. This was relevant because, as the applicant makes clear in her s.424A response[7], her background was a relevant factor in her adoption of a religion which was considered by the Chinese authorities to be an illegal cult (she was subjected to huge social pressure and lived in straitened circumstances when [Teacher A] evangelized her).
[7] This had been implied in her statement, and was made clear in her s.424A response.
Concerning her date of marriage: In her statement, the applicant claimed that she was forced to be married when she had reached [a specified age] (June 1999), and at that time she moved to her husband’s family home in his village. The Tribunal recalls that her second statement, signed the same day, confirmed her understanding of the contents of her first statement which represented her claims accurately and completely.
The date of marriage was repeated in her protection visa application form, as was her claim that she changed addresses and moved to his village in 1999.
At the interview with the delegate, despite being given a number of opportunities to check and be sure of the date when she got married, she continually stated it was in June 2009. By that time, however, she was [specified age][8]. Having confirmed that she married in June 2009, she also confirmed that in June 2009 she moved from her hometown in [Village 1] to [Village 2], [Town 1]^[9].
[8] According to her statement
[9] Delegate’s decision record provided to the Tribunal by the applicant
She said that 2009 was a mistake. The Tribunal finds this explanation difficult to accept, because not only was the date/year relevant to when she was forced to be married, it was also the time that she moved out of home to a completely new village. The Tribunal considers that her changing evidence as to when she was married and moved out of home to live with [Husband A] undermined her credibility and her claimed background.
Concerning her employment: The applicant gave changing and inconsistent evidence as to her employment in China, the reasons why she started working, and whether or not her husband gave her any support after he left her:
·     She claimed in her protection visa application form that her only employment in China was from January 2012 to February 2016, during which time she engaged in [occupation 1] jobs.
·     In her statement she indicated that after her husband left (December 2001) she had very difficult circumstances; she could not get any support from her husband or his family. She stated that in order to make a living and look after her 2 children, she had to do odd [jobs]. Given she claimed that she had no support at all, her statement suggests that she commenced these odd jobs in about 2002 [as opposed to 2012].
·     At hearing, however, she told the Tribunal that she started casual work when the children started school, in approximately 2007, she did casual [jobs]. Prior to that she said she didn’t work and was supported by money that her husband sent back. The applicant then confirmed that she started work in about 2007, because this is when she had free time. When the Tribunal asked her the period of time her husband sent money from overseas to her, she initially said it was until 2015. Shen then changed her evidence, and said it was until 2005. The Tribunal put to her that she was now saying that he sent money to her from 2001 to 2005, and she agreed.
The Tribunal put to her that her evidence that her husband sent money to her for 4 years from overseas was inconsistent with her statement where she claimed that she received no support from either her husband or his family after he left. In response she said he did send a little bit and then he had a new family and he stopped. The Tribunal repeated the inconsistency in her claims (as to whether or not she was supported for 4 years by her husband) and gave her a further opportunity to explain. She did not offer an explanation, only saying that she called him overseas and asked for money because she had limited money. The Tribunal was concerned that there was a significantly change about her background which she did not explain.
Further concerns with her claimed background included that, if her husband supported her until 2005 but she did not start work until 2007, as claimed at hearing, that meant that she had no money at all to survive and support her 2 children from 2005-2007. Further, the Tribunal noted that there were further inconsistencies and changes in her evidence, including that in her protection visa application form she said that she started casual work in January 2012 (until 2016), with no other work recorded at all, which was very different to her claim at hearing that she started work in 2007 when she had more free time.
The applicant did not give a satisfactory response for her changing claims. In response she said support is very little, it is not sufficient for living cost for the 3 of them. The Tribunal considers that her changing evidence as to whether or not she and her children were financially abandoned by her husband, and when she started work in China, was not credible, and her inability to explain the changing evidence undermined her credibility and her claimed background.
The year her husband left her and her 2 children: The applicant gave inconsistent evidence throughout the process as to when her husband left her. In her statement she said he left her in late 2001 ([details deleted]). At the interview with the delegate, although she initially said that he left China (and her) in 2011. She then changed this date to say it was 2002.
The Tribunal was concerned that she had given changing and inconsistent evidence about a significant background event in her life. The Tribunal considered that it was difficult to understand why she would mix up the year of separation between 2001, 2002 and 2011.
In her s.424A response she said that her husband left China in the end of 2001 shortly after [a specified event]. She agreed that she mixed up the years, but this was because of her difficult circumstances. She had never been questioned by an officer outside of her country, she could only communicate with an interpreter, so she was under huge pressure, mentally and psychologically.
The Tribunal has considered her explanation. While it accepts that the applicant could have been nervous and stressed at the interview with the delegate, this is not the first time that she has given significantly different dates for claimed events in her background. The Tribunal was concerned because at other times she was able to give very precise information about dates (albeit sometimes these precise dates also changed), telling the delegate[10] and Tribunal that she started to believe in the local church in 2008, she was baptised in May 2008, she evangelised to her parents in 2009, she was detained on [a date in] May 2012 and held for 2 weeks, and she came to Australia in March 2016.
[10] As set out in the decision record
The Tribunal does not accept that her stress or nerves can explain the inconsistencies in the dates about her background. It considers that these changes and inconsistencies undermine the credibility of her background circumstances which led to her adoption of an illegal religion.
Secondly, the Tribunal was concerned about further inconsistencies in details relating to the applicant’s claims that she became an evangelising Christian in China:
·     In her statement she claimed “After I left China my parents were subjected to investigation by the PSB. Although my parents were not personally involved in the Local Church, the police suspected them (of helping [Teacher A] and the applicant to leave China)”. Further, at no stage in her statement did she claim that she had been the one to evangelise to her atheist parents and convert them to a banned religion considered to be an “evil cult” by the authorities. It is noted that the applicant signed 2 statements confirming the contents of her first statement were correct and accurately and completely represent her claims. Thus, her statements both indicated that her parents were not involved in the local church nor Christians.
·     At the interview with the delegate, when asked if her parents were religious, she said no.
·     She then changed her evidence and said that they were Christians, because she had preached to her parents, and they had become Christians in 2009[11].
·     At the Tribunal hearing, however, the applicant stated that her parents are members of the local church, and they believe the Jesus Christ. She evangelised to her parents in 2008/2009 and since that time they attend gatherings of the local church; they have never stopped.
[11] Delegate’s decision record provided to the Tribunal by the applicant
At the hearing, the Tribunal put to the applicant that she did not claim in her statement to have evangelised to her parents and converted them, and it noted that when the delegate asked if her parents were religious, she also said no, she said they were atheist; she then changed her evidence and said they were Christians, and when questioned further by the delegate she said that after she was baptised in 2008, she preached to her parents and in 2009 they became Christians[12].
[12] Delegate’s decision record
In response, the applicant said to the Tribunal that she didn’t say no to the delegate, she said they were atheists before she converted them, the delegate misunderstood. The Tribunal put to her that it had listened to the interview recording, and it is the same as what is set out in the delegate’s decision record. She said no, her consistent evidence throughout the process has been that from 2008 since she spread the gospel to her parents, they believe in this religion. The Tribunal put to her that this was not what is in her statement; it would think that she would have included in her statement such a significant event, namely that she had converted her parents to the local church if this had occurred. The Tribunal noted that in her statement she had said that her statement represents a complete and accurate of her claims but there is no mention that she had converted her parents to local church. She did not respond to this except to say that in the interview it could be that the delegate was misled or misunderstand or maybe he misheard. The Tribunal noted that the agent (and applicant) would have an opportunity to listen to the tape and make any relevant submissions in this regard.
After the hearing the Tribunal set out in its s.424A letter the conversation between the delegate and the applicant at interview in more detail. In her response it was not maintained that the evidence at interview was inaccurately translated. She also admitted that, despite claiming that she had been always consistent, that she “did not make it clear” about her parents’ involvement in the local church.
In her response she made a distinction that her parents were never involved in the Local Church in Fujian, because they had lived for a period of time in Shanxi. She told the Tribunal that they spent from 2011 to 2015 in Shanxi Province. Her s.424A response thus seems to suggest that even though she evangelised her parents while they were all living in Fujian Province, and although her parents converted in 2009, they did not attend the local church for the 2 years after they converted to the local church in Fujian nor at any stage after they returned to Fujian (and before or even after she claims they received a notification to attend upon the PSB). This was not a claim that she made in her statement, and it undermines her evidence at hearing that since she evangelised her parents they attended gatherings of the local church and they had never stopped doing so.
The Tribunal does not accept her responses. In her statement and at interview (initially) she claimed that her parents were not involved in the local church. At hearing and also at interview, she claimed that they were. In her s.424A response she claims that they were only involved when they were in Shanxi Province. At hearing she claimed she has always been consistent about her parents’ involvement, and they had always attended gatherings ever since she evangelised to them in 2009. The above indicates, however, that she has given changing evidence about her parents’ involvement in the local church and that she is prepared to change her claims, which undermines her claims to have evangelised them because she had converted to the religion of the local church in China, and it undermines her credibility.

Thirdly, the Tribunal considered that the applicant’s regular assertion in her evidence, that evangelising and spreading the gospel is her life, was inconsistent with her claim that she has 2 children to whom she did not spread the gospel or evangelise. The applicant claimed that the children were too busy with study to be taught her religion[13]. The Tribunal put to her that it would expect that, given her devotion to her religion, it would have been most important to teach her children her spiritual way of living. In response she said that perhaps everyone has a different education style; for her she thinks children are busy with school and they have hardly any spare time to do anything else. She said that she will tell them when they are older, it will be faster for them to learn and understand. The Tribunal put to her that it did not appear to make sense to not teach her children her religion, noting her claim that adopting her religion helped her to alleviate pressure and stress[14]; so surely her religion would help her children with the pressure of study. The Tribunal put to her that it would think she would want her children to be able to have that relief. In response she said that the children’s pressure only comes from learning, and she will evangelise to the children when they are older. The Tribunal does not find the applicant’s responses satisfactory. She did not claim that it was dangerous to teach her children the values of her religion (which would have been an understandable concern); she just claimed that they were busy. The Tribunal considers that her evidence and responses undermine her claim that her religion is so important to her; that her lifelong job is to evangelise, and that her religion helped her with stress and pressure.
[13] At interview as set out in the delegate’s decision record
[14] This was stated at the interview as set out in the delegate’s decision record and referred to above
The Tribunal asked the applicant if children were excluded from the church, and she said no. The Tribunal then put to the applicant that the teaching of the local church religion is specifically tailored when it comes to children. It referred to country information according to Watchman Nee:
During a general discussion on meetings, Watchman Nee brings up the particular need of the children’s meeting in the local churches along with some practical advice on the way to work out this need:
The children’s meeting is also needed. This is also a meeting of the local church in the aspect of the work.
We have children’s meetings in various localities. This requires that a few brothers and sisters specifically come forth to do this work. Sisters are perhaps more appropriate. I do not know what materials they are now using in various localities.
In some places they use the Bible to teach the children to read and to memorize. The songs that they sing are composed from Bible verses[15].
[15] ‘6. Children’s Meetings’ (undated), The Meeting and Spiritual Exercise of the Local Church website >
The applicant in response said that this is because in Australia there is less pressure on the children at school than in China. The Tribunal put to her that this was from Watchman Nee’s local church teachings generally; he was not addressing members only in Australia. It would be applicable to children in China (including her children).
The Tribunal was not satisfied with the applicant’s explanation as to why she did not evangelise to her children, and it considers that this undermines her claims to have been an evangelising member of the local church.
Fourthly, in her evidence to the Tribunal the applicant omitted to refer to the events in 2016 when she was asked what had happened in China to make her fear harm. In this regard, when the Tribunal asked the applicant what happened in China to make her fear harm, she said what happened? Just that I believe in Lord Jesus that is regarded as evil cult by the police, that is all. The Tribunal asked whether anything else happened to make her fear harm and she told the Tribunal to look at her statements. The Tribunal said that it was asking her. She said that she was detained in 2016. She then corrected herself and said no, it was 2012. The Tribunal asked her whether anything else happened to make her fear harm apart from being detained in 2012 and she shook her head no. The Tribunal was concerned with this evidence as she did not recall when she was detained nor that events had occurred in 2016 according to her statement.
She then said, things happen later that made me fear danger that made me leave China. The Tribunal put to her that her initial response as to what made her fear harm in China was just in 2012 being detained for 2 weeks and the police regard members of the local church as an illegal cult as the police are against them. She had not stated that anything else had made her fear harm. The Tribunal said that if there had been anything else that had made her fear harm or danger, could she please tell the Tribunal what this was. She responded that they were in a mountain village, and they did not commit any crimes or illegal activities, there was nothing else that happened to make her fear harm.
The applicant thus omitted to make any mention of the events that occurred in 2016.
The Tribunal put to her that her evidence was inconsistent with her statement in which she claimed that in February 2016, [Teacher A] was arrested, and that the police were looking for the applicant because she had been secretly delivering the Bible. She responded that was correct. The Tribunal put to her that it did not understand why this did not cause her a fear of harm. She did not engage with this concern, she just repeated that they were doing the Lord’s work. The Tribunal considers that the applicant’s failure to recall the events of 2016 when giving her evidence (noting that these were the events that made her flee China) undermines that she was an evangelising local church member who had delivered the bible to [Teacher A], who had been arrested, and that the applicant was sought after by the police as a key member of an illegal cult, and she had no choice but to escape China.
Fifthly, the Tribunal was concerned that the applicant gave inconsistent evidence about why she was arrested:
·     In her statement she claimed that [Teacher A] was in danger as she was accused of spreading evil cult and organising illegal meetings, was dismissed by the school, became a target of PSB, and then the applicant had organised for her to go and stay in the village of her parents, and the applicant was then arrested due to her close relationship with [Teacher A] and the police suspected the applicant was involved in the illegal activities and knew where [Teacher A] was.
·     At interview she claimed the reason why she was arrested was because the police caught her spreading evil cult gospel.[16]
·     At hearing she said she was arrested [in] May 2012. When asked why she was arrested, what had happened, she responded that she found it very strange, the police had stated she was spreading illegal cult information, she doesn’t know why. The Tribunal asked what had happened before that and she said that she was living life normally and she was attending gatherings and living life normally. The police said she has been spreading evil cult gospels everywhere.
·     The Tribunal asked whether there was anything else that led to her being detained. She said it might be [Teacher A] the main teacher in her son’s class; maybe because she had a lot of contact with [Teacher A], she was investigated too. She said that [Teacher A] has also been subject to investigation, but she has not been arrested.
[16] Delegate’s decision record provided to the Tribunal
The Tribunal noted that her initial evidence at hearing was similar to her response to the delegate at interview, namely the reason why she was arrested was because the police caught her spreading evil cult gospel, but (just like the delegate stated at interview)[17], this was inconsistent with her written statement. The Tribunal said it was concerned that her claim in her statement was very different to her evidence. In response the applicant said that perhaps sometimes what she says verbally could be different to what she has written; that is normal.
[17] Delegate’s decision record provided to the Tribunal
The Tribunal has considered her response but it is not satisfied this can explain why her reason for being arrested was so different: Firstly it was because she was close to [Teacher A] and was suspected of being involved in [Teacher A’s] illegal activities and having helped her escape; secondly it was because the police actually caught her spreading the gospel; and thirdly it was because she was living life normally and nothing out of the ordinary had occurred and she was surprised that the police accused her of spreading illegal gospel. The Tribunal considers that her changing and inconsistent evidence undermines her credibility and her claim that she was arrested and detained.
Sixthly, the Tribunal was concerned that the applicant gave changing evidence as to when the police were after her in China. In this regard:
·     In her statement the applicant said that she was informed that the police were looking for her, she had to go into hiding, and in order to help her escape from persecution, her father asked his friend to organise her trip overseas.
·     In her evidence to the delegate, she said that at the time she was leaving China the police were after her, she heard at that time the police were investigating her. However, when the delegate put to her that if she was of adverse interest of Chinese authorities, she would not be able to depart her country legally to come to Australia, according to country information, she then changed her evidence. She claimed that there was a window of time, a period of time that time [Teacher A] was investigated, and so during that window of time, the applicant was able to escape.
·     In her evidence to the Tribunal, she said that the police were after her at the time she left China; they were investigating her, and she managed to leave even though the police were after her, because she received help from a person in customs.
When the Tribunal raised these concerns with her changing evidence at hearing, she said whether the police are after us or not how are we able to know we just feel we are in a very dangerous position. The Tribunal put to her that her response was inconsistent with her statement, which indicated that she was able to, and she did know if the police were after her, because she said in her statement: …friends in Shanxi later informed us that the police were looking or me, as they found out that I had secretly transported illegal publications from Fujian to Shanxi in order to develop “illegal” groups if “Evil Cult” in Shanxi. I had to go into hiding from then on.
In response, the applicant said that she had a feeling that she was being sought after. At the time [Teacher A] was under investigation and they were communicating in secret and so if [Teacher A] is being investigated, it is reasonable to expect that the applicant is being investigated. The Tribunal did not find this response to be satisfactory and put the relevant information pursuant to s.424A of the Act, referring to her evidence at interview when she changed her response from saying the police were searching for her before she left China, to saying they were not searching for her until after she left China (namely there was a window of time they were not after her) after the delegate had put country information to her indicating that she would not have been able to leave the country if the police were after her, as there is a highly competent network which shows that if a person is of adverse interest, they would be able to detect her whether she is going through bus station, train or airport. The Tribunal put to her that it would expect that she would give consistent evidence about this (either they were after her before she left China, or there was a window of time that allowed her to escape China when they were not after her), however her evidence indicates that she was prepared to change her evidence to respond to concerns.
In her s.424A response she said that her parents were at home in Fujian at that time, their friends informed them that the police were looking for her, as they found that she had secretly transported "illegal" publications from Fujian to Shanxi in order to develop "illegal" groups of "Evil Cult" in Shanxi. From this point of view, the police were after her before she left China. Therefore, she had to go for hiding from then on. However, the police went to her hometown in Fujian after she left China. As a result, her parents were subjected to investigation by the PSB. She, therefore, believed that [Teacher A] was investigated first, and then investigated her. So, during that window of time, she was able to leave China under the arrangement of her father's friend. From this point of view, she was really targeted by the authorities after she left China.
The Tribunal accepts that it may generally be difficult to know when the authorities have decided to search for a person. However, the applicant in this case made it clear and specific in her first statement that she was informed the police were after her because they had found out that she had secretly transported illegal publications from Fujian to Shanxi in order to develop “illegal” groups of “evil cult” in Shanxi and she had to go into hiding from then on. The Tribunal does not consider that the applicant has explained the inconsistencies and her changing evidence. It considers that she changed her evidence to the delegate to respond to country information put to her about the difficulty in leaving China as a person of adverse interest. This undermines her credibility and her claims that the police were searching for her.
Credibility summary on the basis of the above evidence
The Tribunal considers that the above evidence indicates that the applicant is not a credible witness when making protection visa claims including her claim to be an evangelising Christian who was sought after and remains sought after by the Chinese authorities.
The Tribunal considers that the following matters raise additional concerns with her credibility. The Tribunal is cautious in relying upon these concerns, given that different people have different levels of knowledge and articulation, and it can be difficult to assess a person’s knowledge while ensuring fairness. However, when considering these matters as well as the above concerns, the Tribunal considers that the matters below further undermine her credibility and claim to be an evangelising local church Christian.
The applicant’s knowledge of and involvement in the local church
Firstly, the Tribunal asked the applicant what activities she did in China once she had started to believe in the local church. She said attend gatherings, evangelise; and “build the body of Jesus”. She confirmed that this was all she did in relation to her religion in China. The Tribunal had some concerns with her evidence in this regard:
Attending gatherings: In relation to attending gatherings, the applicant was unable to describe, without a significant amount of prompting, where the gatherings were held in China. The applicant said that she started to believe local church in 2008. She attended gatherings 2-3 times/ week: Wednesday, Saturday and Sunday.
However, when the Tribunal asked where the gatherings were held, she said at the local church in their village. The Tribunal asked whether this was a church building and she said there are no signs. The Tribunal said it was trying to ascertain where the gatherings were held and she said “[Village 2] church, [at a location in Village 2]”. There is a gathering place in different villages. The Tribunal said it was asking her where she attended gatherings. She responded in a place where a lot of us gathered. The Tribunal noted that she was not answering the question and she said, “this church place”. The Tribunal asked her to describe it and she said the place can have about 10 and under 100 people. Not far from main road. The Tribunal put to her that it was concerned with her evidence; it would expect that if she had been attending gatherings, she would have been able to tell the Tribunal immediately where the gatherings were held for example in a house or a school or a building. She did not engage except to say the gathering place is bigger than the average house.
Build the body of our Jesus: In relation to her claim that she was engaged in “building the body of our Jesus”, the Tribunal asked her to explain what this means. She said that the chosen people of the Lord Jesus will understand what this means, not outsiders. The Tribunal put to the applicant that she has claimed she is an evangeliser who spreads the gospel to people and talks about her religion to the uninitiated. In these circumstances it is difficult to understand why, when asked to explain a concept of her religion, she was unable to do so. She responded that she cannot explain because it is very hard if you don’t believe in Lord Jesus. She said the Tribunal would not understand it. The Tribunal asked her to try explaining it, and although she was given a number of opportunities, she was not able to explain what she meant by her activities in China of “building the body of our Jesus”. The Tribunal considered that her evidence undermined her claims to have been a local church member and to have been, and to be, an evangelist.
Omission to mention transporting Bibles secretly: The Tribunal put to the applicant that when asked what she had been doing in relation to her religion in China, she omitted to say that she had been delivering the Bible secretly from Fujian to Shanxi. In response she said that it is not necessary to explain all these details to outsiders. The Tribunal put to her that she is asking the Tribunal to accept her claims. It asked if there was any further explanation she wanted to give as to why she didn’t mention her secret transportation of the Bible when asked what she had done in China in relation to her religion. She said these are detailed things and she was not asked about detailed things. The Tribunal does not accept this explanation The Tribunal had provided her with the opportunity to give evidence about what she had done in relation to her religion in China, and it would expect that if she had been involved in delivering illegal Bibles on a number of occasions, she would have recalled this and told the Tribunal.
Secondly, although the applicant has claimed to be very devout in her religion, when she was asked about her religion by the delegate, she showed minimum knowledge. In this regard, the applicant claimed that she adopted the local church religion in China in 2008, she became baptised, in 2008, she attended church gatherings 3 times per week for about 8 years (2008 - March 2016) and she spread gospel and was involved in smuggling the Recovery Bible in China, she was targeted by the authorities because of her involvement in the local church; and from about April 2016 and continuing to the date of the interview in June 2017 she attended gatherings 3 times per week in Sydney, and she evangelised.
However, as put to the applicant at hearing, her evidence at interview suggested a very limited knowledge of the religion, and an inability to provide any real detail of her religion or the local church. In its s424A letter the Tribunal extracted the evidence that the applicant gave about her religion:
- D: So, what attracted you to this religion?
- A: The Lord will believe and after the person who spread the gospel to me, I feel less
- pressure and burden.
- D: What are your religious beliefs?
- A: My religious belief is to pray every day to the Lord and attend all the gatherings.
- D: What does your religion mean to you?
- A: I will always believe in the Lord. I am free from all the earthly sufferings and all the
sorrow and the pressure.
would come for the second time and the world that we know it is about to end. And Jesus Christ will welcome everyone
- D: What can you tell me about your religion?
- A: Like for example… I will attend all gatherings…. I will attend gatherings regularly.
- D: I am asking you the question again, what can you tell me about your religion?
- A: I believe in Jesus Christ which means I could gain eternity. And this belief…..(she was prompted to continue) Because I believe in Lord Jesus, I believe I could gain eternity.
- D: What convinced you to join or become a Local Church Member?
- A: After I was baptised, I became a member of the Local Church.
- Why did you join the Local Church if you knew the authorities thought it was bad or an evil cult?
- A: Because when [Teacher A] she talked all about Jesus Christ and all he is doing. I was aware of his presence and that is why I joined.
- D: If you wanted to evangelise someone what would you say to them?
- A: Do u mean spread the gospel? I spread the gospel. I would tell them Jesus Christ
- D: What is the difference between any other church and the Local Church?
- A: Lord is the true Lord and the Lord of everything

The Tribunal was concerned that her evidence to the delegate did indicate a limited knowledge of her religion and undermined her claimed profile as an evangelist who would spread the gospel. In her s.424A response she said that she does not believe that anyone can assess a person’s knowledge based on 8 questions. Everything is simple with the Lord, and the Department and the Tribunal try to make it complicated. She confirmed her claimed actions and said that she was actively involved in the local church.
The Tribunal considered that her limited knowledge of the religion to which she had converted 9 years earlier at the delegate’s interview undermined her claim to have been a member of the local church in China and to have been an evangelist, and to cause questions about her involvement with the local church in Australia.
Thirdly, the Tribunal was concerned that the applicant, who claimed that she read the Recovery Bible “when she has free time” (and made the effort to transport it illegally for years to Shanxi),and had been a member of the local church for almost 14 years by the time of the hearing, did not actually know the layout or structure of the Bible. The applicant was aware that the local church’s bible was called the Recovery version of the Bible. When asked what it was, she said it is a record of how Lord Jesus created the whole process. The Tribunal asked the applicant what she can tell the Tribunal about the inside of the Recovery Bible. She said her favourite line is to call out Lord Jesus’ name and when she evangelises, she tells everyone that they call out the Lords Name.
The Tribunal again asked her what about the structure, the layout inside the Bible. She just repeated that it is a record of what happened before and after the recovery, the process. The Tribunal again asked her about the structure of the Recovery Bible, how it is set out, and she repeated How is it set out…. She then said that she is too nervous, so she can’t express herself.
The Tribunal put to her that it is difficult to accept that she is unable to describe the interior of the Bible. She responded certain things you cannot articulate with words you have to feel with heart.
The Tribunal put to the applicant some information about the structure of the Recovery Bible:
·    Accompanying the text are extensive footnotes written by Witness Lee. Unlike typical study notes that focus on the historical, geographical, and biographical background of the Bible, the footnotes in the Recovery Version New Testament stress the spiritual content of God’s Word, opening up the revelation of the divine truth and pointing to the supply of life in the Scriptures.
·    At the beginning of each book there is an outline that provides an in-depth abstract of the book. These outlines emphasize the spiritual meaning of the New Testament books and provide a new, fresh, and living view of every book.
·    Throughout the text of the Recovery Version are cross references to other portions of the Bible that are similar not only in expression but also in the divine truth. These provide the reader a thorough examination of every major aspect of the truth and of every important experience of the proper Christian and church life[18].
[18] “What is the Recovery Version?”
The Tribunal put the applicant that she had been unable to say that the local church’s recovery Bible has extensive footnotes; each “book” has an outline that provides an in-depth abstract, and throughout the Bible there are cross-references.
In response she said everyone has their way of communicating or praying to Lord and the way she does it is to select the part she enjoys the most and then she will go and check the Bible. The applicant did not engage with the Tribunal’s concern that she did not know the layout of the Bible. The Tribunal does not find her responses satisfactory. She was not even able to tell the Tribunal that there are separate books/chapters in the Bible. The Tribunal considers that her inability to explain why she did not know the structure/layout of the Recovery Bible undermines her claims to have read it and to have referenced it when evangelising.
Further, the applicant was not able to explain that Watchman Nee undertook a lot of guidance and writing for the Local Church, to enable people to understand the religion. In this regard, the Tribunal asked the applicant who is Watchman Nee. She responded that he is the explorer and watchman and initiator for the church. When asked for further information about him, she said he was born in Shandong. When asked if she could say anything else about him her evidence was vague. She repeated what she had said: she said that she only knows he is an explorer of the church. The Tribunal asked what that means, what did he do. She responded that he devoted his life to religion. The Tribunal asked what practical things he did about the religion. She said he has strengthened Lord Jesus and he enabled more people to join the church. The Tribunal asked practically, how he did these things. She responded practical…..as an outsider you cannot understand.
The Tribunal put to her that Watchman Nee did significant guidance and prolific writing for the local church[19], and it does not consider that this is something that an outsider cannot understand. She responded that some things we cannot express with words. The Tribunal did not consider this to be persuasive. The Tribunal considers that the applicant was unaware that Watchman Nee issued significant guidance and writing, which undermined that she was a long-time member of the local church.
[19] Watchman Nee’s writings are contained in a set of sixty-two volumes, entitled The Collected Works of Watchman Nee, which span from his first publication in 1922 to his final recorded speaking in 1950
Fourthly, the Tribunal was concerned with the applicant’s evidence about her practice of her religion in Australia.
The Tribunal asked the applicant what she has done in Australia in relation to her religion and she said she was doing the same as she did in China. She attends church regularly and when she has the opportunity to do so she will try to evangelise. She has done nothing else in Australia: evangelising is my lifelong job.
However, she gave inconsistent evidence as to the gatherings she attended in Australia.
·At interview, which occurred 14/15 months after her arrival in Australia, in June 2017, she was asked which church she went to and replied that she attends [Suburb 1] local church.
·However, at hearing, she said that she started attending gatherings in April 2016 in [Suburb 1] and then 1 month later she moved to [Suburb 2].
The Tribunal put to her that this evidence was inconsistent. The Tribunal asked the applicant to explain why she now said she had attended [Suburb 1] for 1 month, when she told the delegate that this was her local church and thus, she had attended there for 14/15 months since her arrival in Australia. In response she said that the delegate only asked her where she attended initially; she was not asked where she attended thereafter. The Tribunal put to her that it had listened to the recording, and this was not what was said; it noted that she could provide submissions/evidence to the Tribunal if the English translation of what was said at the delegate’s interview was incorrect. The Tribunal put detailed information from the evidence at interview to the applicant after the hearing pursuant to s.424A of the Act. She did not maintain her suggestion that there was an error in the translation. In response the applicant said that:
The Local Church in Sydney include many districts in the Great Sydney Area,
such as [District 1] district (a.k.a. [Suburb 1] district), [Suburb 2] district, City district,
and so on. This is not unusual that our church brothers or church sisters attended
gatherings at different districts during the same period. For me, this would mainly
depend upon where I worked. If my work place was closed to [Suburb 2], then I
would go to [Suburb 2]. If my work place was near to [District 1], then I would attend gatherings in [District 1].
The Tribunal acknowledges that the applicant said that she worked as [an occupation 1] in Sydney, and it accepts that her explanation sounds reasonable. However, she did not say this at hearing; she told the Tribunal that she had attended [Suburb 1] for 1 month and then [Suburb 2] thereafter. She did not claim at the hearing that she would attend any local church depending upon where she was working.
The Tribunal does not accept her subsequent explanation. In the circumstances the Tribunal considers that her inconsistent evidence as to how long she attended [Suburb 1] local church (1 month v 14/15 months if, as claimed to the Tribunal, she started attending shortly after she arrived in Australia), undermines her credibility and her claimed attendance at the local church.
Further, the applicant gave inconsistent evidence as to how often she attended local church gatherings in Australia:
· She told the delegate that she attended the local church every Wednesday, Saturday and Sunday.
· When the Tribunal asked the applicant how often she attended gatherings at local church in [Suburb 2], she said that she attended every Sunday, and on a small scale with just a few people on Saturday evenings, however sometimes she just attends by phone. The Tribunal asked whether she had attended any other gatherings or done anything else with the local church at any time at all since she had been in Australia, and she said no.
The Tribunal noted what she had told the delegate and put to her that her evidence was inconsistent with this. In response the applicant said there was a gathering on Wednesday that had been cancelled.
The applicant did not explain why she gave evidence that she had never attended any other gathering in Australia other than on Saturdays / Sundays. The Tribunal considers that if she was attending as a genuine local church member, she would have recalled that she had attended 3 times per week. The Tribunal considers that this undermines her claimed attendance at the local church.
Finally, at hearing the Tribunal asked the applicant how she managed to convert her parents who were atheist; what did she say to them. Her evidence, while indicating greater knowledge than when she gave evidence to the delegate[20], appeared to still be limited, and inconsistent with her claim to have been an evangelist for the last 13 or more years:
[20] As noted in the delegate’s decision record.
She stated:
·     I told them about the life after Jesus and Jesus Christ it creates the whole universe and He changed in human form to bring us salvation and He died on our behalf and He used his holy blood to save us because everyone was born with sin, we are sinful all born in sin and only believers can go to heaven after death and all the wealth and glories of material world are just superficial, only true believers of Lord Jesus will last forever.
·     The Tribunal put to her that if her parents were atheists, it does not understand why they would believe any of this. The Tribunal asked how she convinced her parents; she said it was gradual and she told them the stories of miracles of Jesus Christ. The Tribunal asked for an example, and she said all humans created by God. She then repeated everyone is born with sin and we have to be saved by Lord Jesus. That is the only way to enter the kingdom of Lord Jesus.
·     The Tribunal asked if there was anything else she told her parents, and she said Lord Jesus will come soon to recuperate this world, because there are wars or disasters in the world this is all a precursor and if we believe too late, we will not be able to enter the kingdom.
·     The Tribunal asked if there was anything else she told them, and she said Believe in our lord to change a belief.
·     The Tribunal put to her that what she has said so far makes it difficult to accept that she converted atheists[21]. The Tribunal asked if there was anything else she told them, and she said that she listed many examples to her parents like the plans of the God and how human bring created by God but before God could enter them, they were superficial and corrupt people. The Tribunal put to her that it may be difficult to believe that God would enter a body if you were an atheist; The Tribunal asked if there was anything else she told them apart from this, and she said it is a slow process.
·     The Tribunal asked if there was anything else she told them apart from this, and she said she was evangelising to them. She showed a cup and said there were 3 parts when God created them, spirit soul and physical body. The cup is like the spiritual body, the soul is like the spiritual mind and the spirit is the deepest part of the heart. Before the water enters the cup was dirty, like sin. So, before Lord Jesus enters us, sin enters us. The evil part came in first and that made us become enemies with Jesus.
·     The Tribunal asked if there was anything else she told them apart from this, and she said the Lord Jesus became human and lived in world 33.5 years and crucified on the cross and he has been to heaven and there was a crown and the blood from crucifixion was there to cleanse our sin. When the Lord Jesus was sitting on the crown then the spirit has entered our body. Before enter body have to pray “thank you Lord Jesus for using holy blood to cleanse us”.
·     The Tribunal asked if there was anything else she told them and she said, “We call Lords name, and the spirit enters us”.
·     She told them they had to attend church, they need eat and drink to support our life and to be one with the lord. And only when the spirit has entered the body, we will not be worried by outside world we will feel fulfilment and if we don’t refuel or go to church, we will have problems or breakdowns.
·     The Tribunal asked if there was anything else and she started to repeat.
[21] The Tribunal had considered whether the applicant may have meant agnostic or even non-believer, instead of atheist (a person who would ordinarily actively deny the existence of a higher power), however the Tribunal notes that this term was referred to both at hearing and in the s.424A letter. The applicant had an agent, and there was no suggestion that the applicant meant agnostic or even non-believer when she said “atheist”.
The Tribunal then asked if there was anything else she could tell the Tribunal about her religion and she said words like “religion belief is God”, “Lord Jesus is here to save us, and he supplies us with life and hope for glory”. They call out to him and believe in him. They follow him.
The Tribunal asked her was there anything else she could tell the Tribunal about her religion, and she was unable to say anything more.
As noted above, it can be difficult to assess fairly a person’s knowledge. While the applicant showed some knowledge of the main tenets of the faith, at other times she would block questions by saying that “outsiders” would not understand, which the Tribunal considered undermined her claim to be an evangelist, a person who was explaining their religion to others, and which undermined her claim that evangelising is my lifelong job, and other claims stemming from her claim to be an evangelist. Further, the Tribunal notes that her evidence above represented all she could tell the Tribunal about her religion, which the Tribunal considered was limited considering her claims to have attended local church gatherings 3 times per week in China from 2008 to 2016 and then to have attended local church gatherings 3 or 2 times per week in Australia from 2016 to 2023, and during all this time, to have engaged with non-believers and evangelised to them, explaining her religion to them. The Tribunal put to the applicant its concerns with her inability to explain her religion and her limited knowledge, noting that she claimed to be an evangelist. The applicant acknowledged that there were concerns and she then referred to her ability to articulate (discussed further, but not accepted by the Tribunal). The Tribunal has considered her claims that the local church is simple and that both the Department and the Tribunal were making it more complicated by the questions asked of her. The Tribunal notes, however, that the applicant referred to a number of concepts about religion which would not necessarily be considered as simple.
Having regard to the other concerns referred to above, the Tribunal considers that the applicant’s inability or unwillingness to explain the religion in greater detail does undermine her claim to be an evangelist of the faith to which she converted, and has been devoted to, for the last 15 years, given that the Tribunal would expect an evangelist to be able to provide details about their faith when asked. This also casts doubt on her general claim to be a Christian.

100. On the basis of the above concerns, as noted above the Tribunal considers that these matters lend further weight to the view that the applicant is not a witness of truth in relation to her claims relating to her religion, past harm and future fears.
Other matters
101. Documents in support: The Tribunal put to the applicant that she had produced a letter from the police addressed to her parents (which was a copy). It noted that fraudulent documents[22] are available from China. She responded this is genuine documentation issued by police station, and as a Christian believer she cannot rely upon anything fraudulent. The Tribunal is not persuaded by her explanation and having regard to the credibility concerns and the country information on false documents, the Tribunal does not place weight on this document.
[22] DFAT Report paragraph 5.45 In general, fraudulent documents in China are very common and the scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated. Criminal syndicates may provide a suite of documents to asylum applicants. As most applications for visas are made online there is further opportunity to doctor copies of genuine documents that are uploaded into the system.
102. The Tribunal has also considered the support letters stated to be from 4 church members, submitted as evidence that the applicant has been attending the Local Church in Australia.
·     [Friend A] (8 January 2023) states that he has been in Australia since 2007. He has known the applicant at [Suburb 2] local church, and she loves their God, and he supports her claim for protection.
·     [Friend B] (9 January 2023) states that she is an Australian citizen and a Christian from the local church. She met her at [Suburb 2] local church in March 2016. She believes she is a pious Christian who attends various church activities including Lords Day Breaking Bread meeting, group meeting, blending meeting, perfecting training and video training “etc” and she is very enthusiastic at evangelising among friends, and she loves their God, and she supports her claim for protection.
·     [Friend C] (8 January 2023) states that he has been with the local church for 10 years and knew her in 2016. He stated that she is “often present” in various church meetings, so they are familiar with each other. She has been a great help to the evangelization, and he supports her claim for protection.
·     [Friend D] (8 January 2023) states that she is a Christian from the local church who knew her in around March 2016 at the church. She believes that she is a good church sister who loves our God and has actively participated in various church activities and training, in particular evangelising among the friends and she supports her claim for protection.
103. The first letter does not state how long he has known her nor how often she has attended church. The second letter states that she attended [Suburb 2] local church in March 2016 which is inconsistent with the applicant’s claim that she started to attend church in April 2016, and it was in [Suburb 1] church, not [Suburb 2]. The Tribunal has not accepted the applicant’s evidence that she started at [Suburb 2] 1 month after she arrived; she did not adequately explain why her evidence to the delegate that 14/15 months after she arrived, she was attending [Suburb 1] local church, was incorrect. Thus, her own evidence undermines this witness’s letter. Further, the witness’s letter was able to provide more details on the applicant’s activities in Australia than the applicant. The applicant only said that she attended gatherings; when given an opportunity to talk about her religion she did not claim to have attended such particular events.

104. The third letter does not state how many times since 2016 the applicant has attended gatherings.
105. The fourth letter also states that the applicant started local church in March 2016 which is contrary to her evidence to the Tribunal; the witness does not state which church she was attending nor how often she has attended.
106. The Tribunal referred to the support letters at hearing. The Tribunal notes that the support letters suggest that the applicant has evangelised (2 of the letters say this was done to “friends”). The Tribunal noted that even if the authors of the support letters believe she attends gatherings/ undertakes activities as a genuine Christian, the Tribunal must weigh up all the evidence, and it noted that it did have its doubts in this regard.
107. The applicant said in response to the Tribunal’s concerns about the weight it could place on the support letters, that it is understandable that there are doubts about her as she only came into contact with the religion in 2008. Further, some people who went to university are more articulate than those who only finish primary school. The Tribunal put to her that according to her application form, she did middle school; she was not only educated up to primary school. In response she said that she was just making an example. The Tribunal did not consider this to be an appropriate example. The Tribunal accepts that it is appropriate to consider a person’s ability to articulate when considering that person’s difficulties in talking about her religion. The applicant claimed that she lacks the ability to articulate compared to others. The Tribunal is not persuaded by her explanations (nor is it satisfied that any nervousness could explain the difficulties in her evidence). The Tribunal considers that the applicant is able to articulate and put forward evidence and arguments; it does not accept that she has an inability to articulate to the extent that this can explain the difficulties with her evidence. The Tribunal notes, for example, that it was not a situation of the Tribunal putting random religious concepts to the applicant and asking her to explain them; instead, on a number of occasions the applicant raised particular religious concepts, but when the Tribunal asked her to explain what these concepts meant, she did not even try to explain; she just refused outright to do so.
108. The Tribunal places minimal weight on the support letters.
109. Other corroborative evidence: The Tribunal acknowledges that the applicant has given some consistent evidence throughout, including when she became a Christian in China, that she had been detained for 2 weeks, that she had been involved with [Teacher A] and [Brother A], and that the authorities regard her as a member of the Local Church, about her parents’ work (as farmers, then moving to a [business 1] in Shanxi), that she was married and has 2 children and resided in 2 different villages.
110. Further, she had some knowledge of her religion when giving evidence before the Tribunal, referred to above and including when saying that in the local church they don’t have any special Christmas activities or singing, they are different to other churches. This does not overcome the Tribunal’s difficulties with her evidence. The Tribunal accepts that the applicant has attended a number of gatherings in Australia which are discussed further below. This does not however deal with the issue of her motivation.
111. While the Tribunal places some weight on these matters, this does not overcome the Tribunal’s concerns with her evidence.
112. Benefit of the doubt: the Tribunal had concerns with the applicant’s evidence that she did not know the address where she claimed to rent and live at 14 years, given her claim that her parents-in-laws’ had an address while living in the same village. The Tribunal also had concerns with her evidence about inconsistencies as to whether or not she had had a criminal conviction/ had been found guilty (however it accepts that legal terminology could have caused her confusion in the forms). The Tribunal was prepared to give her the benefit of the doubt in these matters.
113. Overall credibility finding: These matters do not overcome the Tribunal’s concerns. The Tribunal finds that the applicant is not a witness of truth when making claims seeking protection.
Findings as to the applicant’s claims
114. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant’s claimed background is true including that she was prevented from studying or subject to discrimination or forced to marry or that her husband abandoned her and her children or that she was forced to reside anywhere. It does not accept that she had difficulties in financially supporting herself nor that she was in strained circumstances. It does not accept that she was introduced to the local church in the manner claimed nor that she became a Christian and a member of the local church. It does not accept that her parents became involved with the local church or helped anyone escape (including the applicant, from China). It does not accept that she or her parents were subjected to investigations, that she was arrested or detained or charged or that there was ever an arrest warrant against her, nor does it accept that she knew a [Teacher A] or [Brother A] nor that she brought bibles to Shanxi nor that she herself evangelised in China. It does not accept that the applicant was ever regarded as a key member of an illegal group of an evil cult by the Chinese authorities nor that there was ever a reason while she was in China for her to be so imputed (or even imputed as a member of the local church). The Tribunal does not accept that she has ever had adverse attention from the Chinese authorities, and nor did her parents. It does not accept that the PSB have visited their home nor that the parents were summonsed, nor does it accept that she has been regarded as a key figure in the local church (nor that she has been imputed as involved in the local church at all). The Tribunal does not accept any claims that flow from these claims.
115. Concerning her activities in Australia, the Tribunal put to the applicant that her current knowledge was more than what she showed at the delegate’s interview[23], but that she didn’t have significant knowledge when considering her claimed involvement in the church, and it had concerns that she may have learned information and attended gatherings/undertaken activities to strengthen claims as a refugee. The Tribunal put to the applicant at hearing and in the s.424A letter that it had concerns that her attendances at church gatherings (and related activities) may have been done to strengthen her protection visa claims (s 5J(6)), which would mean that it would have to disregard any such religious activities for the purposes of considering her refugee claims (while explaining that it would not do so when considering her complementary protection claims). She responded that she is not doing this for that purpose. In her s.424A response she denied this, and she described her attendance as an “active involvement”. The Tribunal does not accept this is true.
[23] The delegate’s decision record set out details of her knowledge at interview, which was very limited
116. The Tribunal finds that, since 2016, the applicant has attended local church gatherings and undertaken activities while there including learning about Christianity and on occasion talked about the religion to “friends” in the presence of other churchgoers in Australia, for the sole reason of strengthening her protection visa application. It is not satisfied that she has done so as a genuine Christian nor is it satisfied that this has occurred regularly. It is not satisfied that her motivation has changed.
117. For the purposes of the applicant’s refugee claims, the Tribunal disregards the applicant's attendance at religious activities/places in Australia on the basis of s 5J(6). Accordingly, in determining whether the applicant has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph s 5J(1)(a), the Tribunal has disregarded the religious activities and learning conduct engaged in by the applicant in Australia because the Tribunal is not satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee.
118. The Tribunal noted that it is required to have regard to the Department of Foreign Affairs and Trade (DFAT) Report which provides information as to the country conditions in China. The Tribunal put to the applicant that if it did not accept her claims, then having regard to the country conditions, it did not appear that she faces a real chance of serious harm or a real risk of significant harm (for the reasons discussed in the following paragraphs). The Tribunal notes that the report states that DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. Reference is then made to specific profiles but there is no mention of consequences for people who have falsely claimed to have been Christians in Australia and in that respect have engaged in activities to support those claims.
119. The Tribunal has considered that the applicant has attended local church gatherings and activities in Australia, and it does note that the DFAT Report states that it is likely Chinese authorities are aware of the behaviour of Chinese asylum seekers while they are outside of China and it may know they applied for asylum, however it does not specify that this would lead to a real chance of serious harm (or a real risk of significant harm).
120. The Tribunal notes that s 5J(6) prevents the Tribunal from taking the applicant’s actions into account. Whether this means that the Tribunal should not take into account the possible actions of the Chinese authorities in monitoring people in Australia is not clear, however the Tribunal has decided to consider this. The Tribunal notes that there is no other accepted evidence that there has been any adverse interest in the applicant since she came to Australia, and the applicant did not suggest to the Tribunal that the Chinese authorities would have been monitoring her activities in Australia and that this would lead to harm.
121. The Tribunal is of the view that this applicant will say whatever she considers necessary to achieve the best outcome for herself. Even if questioned by the Chinese authorities upon return, and if they told her they knew she claimed asylum, the Tribunal considers that she would tell the authorities that she claimed to be a Christian in order to achieve status in Australia, but that she is not a genuine Christian and would not engage in any such activities in China. The Tribunal is not satisfied that the applicant will face a real chance or a real risk of any significant adverse attention amounting to serious or significant harm as a result of the Chinese authorities possibly knowing what she has been doing in Australia.
122. The Tribunal does not accept the applicant’s claims of past religious involvement in China or that she has engaged in any genuine religious involvement in Australia, and it does not accept that there is a real chance or a real risk of the applicant having an interest in or becoming involved in any way in religion in China or of being imputed with such involvement leading to adverse interest and/or a real chance of serious harm or a real risk of significant harm in China. The Tribunal does not accept that the applicant is a genuine Christian. On the evidence before it, the Tribunal does not accept that the applicant faces harm for any reason including actual or imputed religious belief/involvement when she is in China.
123. Having regard to the Tribunal’s findings that the applicant’s religious activities in Australia have been undertaken for the purposes of her protection visa application, that she was not involved in any religious or political activities in China, and that she will not be motivated to be involved in any such activities on return, the Tribunal does not consider that country information relating to religion indicates that the applicant faces a real chance of serious harm or a real risk of significant harm as an imputed Christian.
124. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.
Complementary protection

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).

126. At hearing the Tribunal noted that for the purposes of complementary protection it would not disregard the activities in Australia. It said, however, that if it did not accept her claims, it would not seem that the extent of her involvement in Australia would come to attention of Chinese authorities, and it would not accept that she would go back to practice her religion and evangelise in China which suggests that she would not face a real risk of significant harm. harm.
127. The Tribunal has not accepted the applicant’s previous claims as to past interest and involvement in religion in China. It has accepted that she sometimes attended the local church in Australia and attended related activities (but not regularly) in order to obtain a protection visa. The Tribunal does not accept that the applicant is a Christian, nor is it satisfied that there is a real risk that the Chinese authorities would seek to cause the applicant any form of significant harm because of her activities in Australia (which it notes in any event, she does not claim there is a real risk this would occur). It is not satisfied that she faces a real risk of being imputed as a Christian by the Chinese authorities such that she would face any form of significant harm upon return, nor does it accept that she would engage in any Christian activities in China. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any reason including religion/political imputation.
128. The Tribunal has found that the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.
129. The Tribunal is not satisfied that she faces a real risk of experiencing significant harm for any reason.

On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion

131. 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). 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) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION

134. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A – 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 (Cth) (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 below.
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 below.
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.
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.
…

[2023] AATA 1316

18 March 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction