1715816 (Refugee)

1715816 (Refugee) [2021] AATA 4220 (1 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1715816

COUNTRY OF REFERENCE: China
MEMBER:Frank Russo
DATE:1 October 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 October 2021 at 6:27pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Shouters – house church – detention – torture – limited evidence of church involvement – exit procedures – return visit to China – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 7 September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The hearing was held during a period of extended restrictions across Greater Sydney, as a result of the COVID-19 pandemic. On 7 September 2021, in accordance with measures introduced in response to the COVID-19 pandemic[1], the Tribunal invited the applicant to attend a hearing by way of video or telephone on 27 September 2021. On 24 September 2021, the applicant advised that he wished for the hearing to be conducted by telephone.
[1] COVID-19 Special Measures Practice Direction – Migration and Refugee Division, 2 March 2021.
The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the evidence on the file and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The hearing on 27 September 2021 was conducted with the assistance of interpreters in the Mandarin and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that they will suffer significant harm.
The applicant provided with an application for review. He provided requests for Medicare access letters, but has otherwise not provided any other documents to the Tribunal in support of his application for review.
The Tribunal notes that the applicant did not provide a copy of the delegate’s decision or the notification of the decision from the Department, however the Tribunal notes that the applicant did not attend the scheduled interview with the Department, and there is no adverse material contained in the delegate’s decision which the Tribunal seeks to rely upon.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file. The applicant did not provide the Department with any documents in support of his application, other than a copy of his Chinese passport. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Chinese passport to the Department. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of China, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
In his Protection visa application, the applicant makes the following claims in his response to Question 89 (regarding why he left China):
a.He is seeking protection because he is unable to practice Christianity in China, and because of the physical and mental harm he has suffered in his attempts to practice it;
b.He was introduced to Christianity by a friend and attended mass on a weekly basis;
c.A couple of years after he found Christ, he was ‘no longer able to see him’, and the police found his church;
d.Practicing any religion other than Buddhism is forbidden in China, and he was found to have violated the law and was taken to a labour camp. He was hit and beaten when he arrived and was shown no mercy. He was punished for practicing Christianity and was beaten and forced to work in farming and landscaping;
e.After two years he was released, because he was weak and it was no longer worth feeding him;
f.His family had no idea where he was and it took him a long time to save money to find his way home, and then to afford to seek asylum in Australia; and
g.If he returns to China he will experience physical and mental torture because of his religion.
At Question 90 of his visa application, the applicant states that if he practices his religion again in China, he fears that he will be imprisoned again, and this time he will be unable o leave China. At Question 91 he states that the harm he experienced in the labour camp included being hit in the stomach and arms, and that over the course of two years he suffered physical and mental abuse at the hands of the guards.
The applicant claims at question 93 that moving to another part of China would be useless, as the entirety of China falls under Chinese Communist Party rule, and he would be unable to practice Christianity.
The Tribunal notes that in the above responses to questions, the applicant made no mention of a specific denomination of Christianity, however at Question 84, where he was asked to give details of all employment, he records that after December 2015 he was ‘Not working; Practising Shouter Religion; Financially support myself through friends and other Shouter practitioners.’ He also lists that from [year] to December 2015 he worked as a ‘[specific occupation]’ with [Business 1] in Jiangxi Province.
Departmental interview and delegate’s decision record
The applicant was invited to attend a Protection visa interview with the Department on 7 July 2017, but did not attend the interview.
The delegate considered that the written materials provided by the applicant did not provide a sufficient basis to be satisfied that the applicant is a Christian, or that he faces harm of any kind on return to China. The delegate was accordingly not satisfied that there is a real chance that the applicant would face persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act, and was therefore not a refugee as defined in s.5H of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.
Evidence at the hearing regarding preparation and contents of the application
When asked at the hearing whether he remembered making the Protection visa application, the applicant stated that he didn’t know and that he didn’t remember much or remember clearly. The Tribunal noted that the Protection visa application was made on 7 September 2016 and the applicant then stated that he remembered. When asked whether he made the application on his own or with help, he stated that a housemate made the application for him. He confirmed that his housemate was not a migration expert and did not have any other relevant qualifications, but that he could speak a little English.
When asked whether he was aware of the contents of his application form, the applicant responded that he didn’t know, that it ‘is all in English. Some nonsense maybe.’ The Tribunal asked the interpreter to confirm that the applicant had said that the contents of his application form were ‘some nonsense maybe’, which the interpreter confirmed was the case. The applicant then said that he did not know what was in the contents of his application form and that the person who had made the application form just tried to help him. When asked whether the contents of the application form were read back to him, the applicant appeared not to have understood the question, as he stated ‘No, I don’t have a mailbox’. The Tribunal asked the question again in a different way and the applicant confirmed that the contents of the application form were not read back to him. However, when asked whether the contents of the application form are true and correct, the applicant stated yes, that they are correct. He also confirmed that he did not wish to make any changes to his application form or add to the claims which he made in his application form.
Evidence regarding the applicant’s background
The applicant gave evidence that he is a citizen of China. The applicant gave evidence that besides Australia, he has not travelled to any other countries. He confirmed that he is not a citizen of any other country, nor does he have a right to enter and reside in any other country besides China.
The applicant gave evidence that he was born on [date], the same date contained in his Protection visa application. He gave evidence that prior to arriving in Australia he lived in [Village 1], [Town 1 in], Dingtao, Fuzhou, Juangxi Province. When asked for the street number, he stated that he lived in a rural area and they did not have a street name or house numbers. When asked if he had a household number, he stated it was [number]. The applicant confirmed that this was his hukou and that he had lived there since he was born. He stated that he had not always lived there, that he would go other places to find work and to start a small business. He confirmed that he had not lived elsewhere for any significant periods of time, only ‘a few months here and there’. He confirmed that he was living at his address in [Town 1] immediately before arriving in Australia.
The applicant gave details of a wife, [and specified children], which were consistent with the details provided in his Protection visa application. He however gave evidence of [another child], [named], whom he said is [age], and who is not listed in his Protection visa application. He confirmed that each of these family members all live in China and continue to live at his hukou.
The applicant gave evidence that the highest level of education which he completed was primary school, and that he went to the [named] Primary School, which was in his village, [Village 1]. When asked if he attended secondary school, he stated no, but then stated he attended ‘maybe half a year’. When asked when he stopped going to school, the applicant stated he was [age], but then corrected himself and said he was [younger age], and that he had started school at age [age range]. When asked what year he stopped going to school, he stated that he could not really figure it out, that it was maybe [year], then stated it was maybe [year range].
As to his employment history, the applicant stated that he sold [product 1] from his area from 2008, which he did for five or six years. When asked whether he did this on his own or worked for a company, he stated that he did it on his own. He stated that before this he [did specified tasks] from the age of [age range], and he did other things to make a living, such as [other tasks], and that he did these things until 2007.
Evidence regarding the applicant’s travel to Australia
The applicant stated that he arrived in Australia [in] August 2015, and that he travelled by plane, departing China from Beijing. He confirmed that he travelled using his own passport. When asked why he came to Australia, he stated it was because he believes in Christianity, but in China it ‘is more Buddhism’. The applicant stated that he arrived in Australia holding a Business visa. The Tribunal questioned whether he held a Visitor visa, rather than a Business visa. The applicant stated that it had been a long time and he can’t recall and can’t read either.
When asked who organised his visa to Australia, the applicant stated that it was a [product 1] company and gave a name that the interpreter translated as ‘[Business 1 abbreviated name]’ and indicated [product 1] is in its name. When asked how he was connected to this company, the applicant stated that he was not quite sure, and that someone else made the visa application for him. When asked whether he has worked for this company, he stated no. He gave evidence that it cost him 40,000 RMB to come to Australia and that he obtained the money from relatives and friends.
When asked why he travelled alone and not with his wife and children, the applicant stated that he was worried that with the other family members he would not be able to leave.
The applicant confirmed that he returned to China [in] October 2015 and then arrived in Australia a second time [in] December 2015. When asked what the purpose of his return to China in October 2015 was, he stated that his wife asked him to go back. He stated that they had never been apart from her and she was crying every day, but later he decided that he had to leave again and could not stay any longer.
The applicant stated that he was working at the time of the hearing. He stated that he does some [work], including [a specific role].
Applicant’s claims for protection
The Tribunal noted the applicant’s claims in his Protection visa application that he is a Christian and that he could not practice his faith in China and suffered harm there. The applicant confirmed that this was correct and that he was not making any additional claims.
The applicant gave evidence that his parents are Buddhist and he was raised a Buddhist, but he was introduced to Christianity by a friend. When asked when he was introduced to Christianity, the applicant initially stated 2019, but when the Tribunal raised that this was after the date of his visa application and appeal, the applicant stated that he was about [age] at the time and it was more than 20 years ago. He stated it was in about 1998. When asked who introduced him to Christianity, the applicant stated it was one of his friends. When asked for the person’s name, he stated the surname was [name]. When asked if he remembered the person’s first name, he stated [name].
When asked what attracted him to Christianity, the applicant stated that after he believed in Christianity he ‘think it’s really good’. When asked what persuaded him to believe in Christianity, he stated that after he believed in it, he mainly had a happy mood and had no illness.
The applicant gave evidence that he practiced Christianity in China with a few people gathering in a church and reading out that Jesus Christ was good. He stated he would attend twice a week. When asked what happened during services, he stated that one person would make a speech and the other people would feel Jesus Christ’s presence and tell the others what they feel. When asked if anything else happened, he stated no, that ‘they didn’t allow us to believe in this’ and that he then came to Australia. When asked whether the services were held in a church, he stated they were held in someone’s home. When asked what denomination of Christianity or group the church belonged to, he stated that in the city (Sydney) there is a similar church and that ‘We just say Jesus Christ’. When asked if the church has a particular name, he stated no. He confirmed that he did not practice Christianity in China in any other way besides going to mass twice a week. He confirmed that he had not read any other Christian literature besides the Bible. When asked if his church had a priest or minister, he stated that they only had a few people and he didn’t remember.

When asked what type of bible was used in the church in China, he stated that it’s the ‘same as here’. When asked if the version of the bible has a particular name, he stated that the bible has a new and an old version, and that they would just sing hymns. He then gave an example of a hymn, which the interpreter indicated involved repeating the word Hallelujah.
When asked whether any particular prayers were said in his church, he stated yes, but then gave a vague statement about having Jesus Christ in your heart and loving him and he will love you back. He then stated that they would sing songs every day and think about Jesus and wake up feeling good.
When asked whether there were any particular words or phrases which were called out in his church, the applicant stated yes, that they would speak out loudly and cry out loud so Jesus could hear them. When asked again whether there were any particular words that were repeated in services, he stated they would just hold a book and sing.
When asked why he considers himself to be a Christian, the applicant simply responded by saying that he is a Christian and a believer. When asked whether there are any other reasons, he stated that he has lots of bibles, that he has the older one and the newer ones.
When asked whether he has read the Bible, the applicant said yes, both new and old. When asked if there are parts of the Bible which attract him or are important to him, he recited a statement which the interpreter translated as commencing with repetition of the word ‘Hallelujah’, followed by references to ‘Jesus Christ forgive my sins’, ‘I am new’ and ‘Jesus Christ used his blood to clean our sins’. The applicant stated that it is very complicated and hard to explain.
When asked whether he could tell the Tribunal a story from the New Testament, the applicant stated that he does not have a good memory and that he needs to read it to remember it. The Tribunal raised concern as to how the applicant could genuinely believe in something if he cannot remember it. The applicant responded that all we need is in our heart and have Christ in our heart. He stated we need to remember Jesus Christ and love him and he will love us. When asked if he could tell the Tribunal any Old Testament stories, the applicant stated that he does not remember, and that he only follows others and cannot really read.
When asked if he knows anything about the Ten Commandments, the applicant stated no gambling, no prostitution, no theft, no robbery, do not kill, respect the elders and love the young. The Tribunal asked the applicant whether he knew who God gave the Ten Commandments to, and in what circumstances. The applicant responded that he forgot. When asked if he could tell the Tribunal about any parables told by Jesus, the applicant stated that he didn’t know and that he only has a primary school education. He stated that he only knows that Jesus told us not to drink too much, not to make ourselves too pretty or noticeable. He was unable to tell the Tribunal what his church’s beliefs are about how God, Jesus and the Holy Spirit relate to each other.
When asked what you must believe in to be a Christian, the applicant repeated that you must put Jesus in your heart always, never argue, and when people pick on you or insult you, say Amen.
When asked if he attends church in Australia, the applicant stated yes, and said it was in the city. When asked the name and location of the church, he stated it was ‘around here’ and somewhere around the city. When pressed further for the location, he stated that it is all in English so he doesn’t know the name, and that it is upstairs. The Tribunal asked a range of questions to obtain the location and other details of the church. In his evidence the applicant stated that it is located in the Sydney [about] [distance] from [a train] Station. He does not know what street it is on. He stated that it is close to ‘the train station’ and next to [Business 2] and that the doors are open and you can walk in. He stated that after you pass the park beside the train station, you travel past [a specified location], and then past [Business 3], and that [Business 2] and [Business 3] are close. When asked whether there is anything which identifies the building as a church, the applicant stated that he could not think of any.
When asked how often he attends this church, the applicant stated he attends when he is free. When asked the last time he attended, he stated that recently he has been busy and it has been a long time, about 6 months.
When asked what happens during services in Australia, he stated that he goes there, people pray together and they eat bread and then tell what they feel inside. He stated that they also go to the street and preach Jesus Christ and send out brochures to ask people to go to the church. When asked what bible they use in the church he stated that the bible is the bible, and stated that there is no other bible. When asked if he knows the names of any pastors or ministers or the church, he stated [names]. When questioned whether there were any particular priests or ministers the Tribunal could call to ask about his attendance at the church, the applicant stated that he does not have their phone and he only has a [messaging service] with all of them. When asked whether there was any reason why he had not provided any letters of support, he stated that he didn’t know.
The applicant stated that he was baptised in Australia in December 2018, around Christmas. When asked whether he received a certificate of baptism, he stated no, but stated that it occurred in December, which is the largest gathering for most of their followers in Sydney. When asked what happened at his baptism, the applicant stated that it was a really large gathering outdoors and they used a pond for the baptism, and they promised they would forever believe in God and would not be enticed by Buddhism or Taoism. When asked what baptism means to him, the applicant stated that it means you have chosen to believe in a religion and have become a Christian. The Tribunal questioned the applicant as to why he waited until December 2018 to become a Christian. He responded that it was because he had been with that church for a year by then, and they told him that he needed to be baptised as ‘you are here every day’ and that otherwise he cannot call himself a Christian.
When asked why he joined this particular church in Australia, the applicant stated that there was no reason, and that he is fine with the other churches as well, because they are all Christian.
As to his reasons why he fears returning to China, the applicant stated it is because there it is ‘still Buddhism’ and there is not much Christian religion. He confirmed that there was no other reason. The Tribunal put to the applicant whether he was claiming that you are not allowed to be a Christian in China, which he said was right.
The Tribunal questioned the applicant about the incident he refers to in his Protection visa application, where he claims that he was detained. The applicant stated that he was found out by the police and was detained for one to two years. When asked when the incident took place, he stated that it had been 10 odd years, so he can’t remember exactly. He then stated it was more than 10 years ago and he could not remember exactly when it happened. As to why he was detained, the applicant stated it was because he was not allowed to believe in Jesus Christ. When asked whether there was anything particular about the church that he practiced his faith in which was the reason for his detention, he stated no, and that it was probably because they are not allowed this belief because of the Buddhism in China.
When asked whether he was arrested, the interpreter stated that the applicant responded with a word in dialect which she found hard to translate. After clarifying further with the applicant, the interpreter stated that it was more like a warning or a caution, as he was not allowed to have this belief. When asked where he was detained, the applicant responded that there was no detention, that it was just a caution. The Tribunal reminded the applicant that a few moments before , he had said he was detained for a year or two, and raised whether what he was now saying was inconsistent. The applicant then stated that you could call it detention or you can could it a kind of ‘corrective services’. When asked again whether he was held anywhere by authorities during this period, the applicant responded that he was held for several months, up to a year. When asked where he was held, he stated that it has been many years and he cannot remember, and that it was in his hometown or near his home. When asked whether it was a jail or some other kind of place, he stated that he could not remember.
When asked whether he was mistreated during the period he was held, the applicant responded that ‘There must have been a little bit.’ When asked what mistreatment, the applicant stated that he can’t recall because he doesn’t have much education and is a bit slow. The Tribunal put to the applicant that if he was tortured or mistreated, his education level was unlikely to be a factor which would stop him from recalling the events. The applicant then stated that you could call what happened to him ‘re-educating me’. When asked what happened during this process of re-education, the applicant stated that he was told to ‘stop believing in that’, and stated that it was really hard to express. When asked whether he was physically harmed or tortured in any way, he stated that there was a little bit. When pressed further, he stated that there was beating with a stick, which was ‘like educating you’, and again stated it was hard to describe. When asked why he was released, the applicant stated it was because his time was up, and they couldn’t keep him for too long as it was just re-education.
The applicant told the Tribunal that he was at home when he was taken away. He gave evidence that no-one else was taken away. When asked why he was taken and not someone else from his church, he stated that he was not sure. He stated that no conditions were placed on him when he was released, other than he could no longer have his belief in his religion. He confirmed that no other incidents occurred while he was in China.
When asked whether he believes he will suffer harm if he is returned to China, and the reasons why, the applicant appeared not to have understood the question, as he responded by saying that he will stay here in Australia for several years and make some money. When the question was repeated to him, he responded that it was hard to say because he does not know the current situation in China. When asked again what harm he believes he may experience in China, he stated that he thought he might suffer ‘a little bit’ and that it was hard to say. The applicant confirmed that there was no other reason why he does not wish to return to China, and confirmed that there was no further evidence which he had not provided regarding his religious practice.
The Tribunal questioned the applicant a second time about the denomination of the church he attends. He responded that it is a Christian church. When asked whether his church is known by any names, he stated that they are all over Sydney, and listed various suburbs. The Tribunal asked the applicant whether he had ever heard of a church called the Shouters, to which he responded, ‘What was that?’ When asked again if he had heard of a church called the Shouters, he stated that it’s not clear, as they are all the same church and they are in places like [a named suburb] and the city and are all the same. When asked whether he had heard of a church called the Local Church, he responded no, and stated, ‘How can there be that kind of church? I’ve never heard of that.’
Country information
The Tribunal discussed with the applicant relevant information from the most recent DFAT Country Information Report for China[2], which provides relevant information regarding Christianity and the Local Church:
[2] DFAT Country Information Report People’s Republic of China 3 October 2019.
RELIGION
3.30    It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million …
3:32    In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are … Protestants (60 to 80 Million, of which only 30 million are registered).
Government framework regarding religion
3.37    Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).
3.38 Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently
because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.
…
3.44    Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non-recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
The Tribunal summarised and discussed further information with the applicant about Christianity in China, in particular unregistered churches:
Christians
3.76    China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77    In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
…
3.79    Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice …
The Tribunal put to the applicant that from this country information it may conclude that it may be possible for the applicant to attend either a registered or unregistered Christian church in China, with only a very remote chance that he would come to the attention of authorities.
The Tribunal also noted that the country information report contains specific information about the Local Church, which is considered a dangerous cult by Chinese authorities, however in his evidence the applicant indicated he had not heard of this church and had no awareness of it, and that his responses to questions during the hearing, indicate that the practices of the churches he claims he has attended are not consistent with the beliefs and practices of the Local Church.
The applicant responded to the country information by saying that where he is from is remote and there were no Christians. He then went on to say that there was both Buddhism and Christianity, but Christianity had not reached there.
The Tribunal put to the applicant whether it would be possible for him to move to another part of China in order to practice his faith, such as to neighbouring Fujian Province, where the country information report indicates a more liberal approach to religious freedom applies. The applicant responded that yes, he could go there, but going there would be inconvenient and it was too far.
The Tribunal put to the applicant that the country information placed doubt on his claim that he would be detained or placed in a labour or re-education camp for up to two years because he attended an underground or family church in China. The applicant responded that his region is remote, and confusingly stated that it may not be covered by the country’s administrative powers.
Other potential concerns put to the applicant
The Tribunal put a number of potential concerns to the applicant regarding his evidence and his claims for protection, and gave the applicant an opportunity to respond to each.
Firstly, the Tribunal put to the applicant that his claims as to what harm will occur to him if he returns to china are vague, and it is not sure that any of the problems he says will occur, will eventuate. The Tribunal put to the applicant that on his evidence, the detention or re-education process occurred over 10 years ago, yet he remained in China until August 2015, for approximately a further four to five years. The applicant gave evidence that no other incidents occurred in China after this, which suggests that he is of no interest to authorities. The applicant responded that it has been a long time and he can’t remember.
The Tribunal put to the applicant the vagueness of many of the claims about his detention or re-education in China as a result of his Christian beliefs, as well as significant inconsistencies in the evidence he gave at the hearing, compared to the claims made in his written application. These included vagueness regarding when the detention occurred, whether he was arrested, what kind of detention it was, where he was taken, as well as inconsistencies in the length of time he was detained, what torture or mistreatment he experienced and the reasons for his release. The applicant responded that he can’t remember some of the details, nor could he remember the information that was in the application.

The Tribunal put to the applicant that he had not provided any convincing evidence that he is a genuine Christian, nor had he demonstrated a convincing level of understanding of Christian belief or the bible. The Tribunal noted that this concern was based on his vague responses to what it means to be a Christian and his inability to give any convincing information about the content of the bible, as well as his inability to name the church that he attends, or state what denomination it belongs to or clearly state its location. The applicant responded that he didn’t know, but he did actually go to the church. He stated that he did read a section of the bible, which was about how he is a sinner and how he is made a new person. He stated that he did attend around Christmas and he has been baptised.
The Tribunal put to the applicant that in his Protection visa application, under the details of his employment since arriving in Australia, he makes a statement that he is unemployed, but has been practicing the Shouter religion. The Tribunal put to the applicant that based on his evidence about not having heard of the Local Church/Shouters, it appeared that the claims in his visa application were not his own. The applicant responded that he didn’t know, and that someone else had written his application for him.
The Tribunal also put to the applicant that some of the background evidence that he gave at the hearing is inconsistent with the background information contained in his Protection visa application, and that this may indicate that the information contained in his application was not his own, and also raised doubts about the truthfulness of his evidence. The Tribunal noted that this included differences in his employment details and whether he had travelled to any countries besides Australia. The Tribunal noted that his visa application indicates that he travelled to [Country 1] in April 2015, a few months prior to arriving in Australia for the first time. The applicant responded that it has been many years and his memory is bad. He the stated that he has been suffering from ill health. When asked what ill health, he stated that he meant that his memory is bad. When asked whether there are any reasons why he has a poor memory, he stated it’s been too many years and been a long time. The Tribunal put to the applicant that the discrepancy as to whether he had worked for a [product 1] company for 30 years or had worked for himself selling [product 1] for five to six years did not appear to be a simple error of recall. The applicant responded that others wrote this information for him, and he doesn’t know how they wrote it and their English was not good. The Tribunal put to the applicant whether there was any reason why such persons could not have asked him what work he had actually undertaken in China and then provided a truthful summary. The applicant responded that he was not sure.
The Tribunal put to the applicant that he was able to leave China using his own passport on at least two occasions, which suggests that he is of no adverse interest to Chinese authorities, and put to him country information about the immigration entry and exit controls at Chinese airports. The applicant responded that he wasn’t sure.
The Tribunal put to the applicant that he returned to China in October 2015, for approximately two months, and that prior to arriving in Australia, he travelled to [Country 1] in April 2015, after which he returned to China. The Tribunal put to the applicant that this immigration history suggests he does not fear returning to China for the reasons stated. The applicant responded that he could not recall because it was many years ago. He stated that he might have been to [Country 1], and so he was stuck for an answer.
The Tribunal put to the applicant the significant delay in applying for protection, noting he first arrived in Australia [in] August 2015, and did not apply for protection until 7 September 2016, over a year later. The applicant responded that he was not sure.
Does the applicant have a well-founded fear of persecution if he returns to China?
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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 him 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 her or him. 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.)
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal notes that two interpreters were used during the hearing, and both interpreters on occasions expressed the need to clarify particular words or sentences spoken by the applicant, on account of the applicant’s use of particular words in a dialect. The Tribunal notes that on each occasion the applicant was asked to repeat what he had said, and the Tribunal did not move on until the applicant’s evidence was clarified by the interpreter and translated for the Tribunal.
The Tribunal is satisfied that the interpreters were able to understand the applicant with the help of the opportunity to clarify any particular words spoken in dialect. The Tribunal notes that on occasions there was also some difficulty in both interpreters obtaining the spelling of addresses and names provided by the applicant, and both interpreters made efforts to clarify the spelling and pronunciation of particular names, with quite some time spent clarifying these matters. The Tribunal has also taken a relatively liberal approach to addressing the consistency of any evidence regarding names of places and people, having regard to the difficulty which the applicant’s particular accent may have presented. The Tribunal notes that extra time was allowed to hear the evidence of the applicant, taking into account the delays caused by the need to clarify his evidence. The Tribunal also sourced a second interpreter at short notice, to provide interpreting services after the conclusion of the initial interpreter booking for 3.5 hours. The Tribunal considers that both interpreters were professional and qualified interpreters, and both took the time to ensure the Tribunal was provided with accurate translations. In total the duration of the hearing was over 4.5 hours, including short breaks.
The Tribunal has carefully considered the claims made by the applicant and finds the applicant to be an unreliable witness who lacks credibility and finds his claims regarding his belief in Christianity to be entirely vague, unpersuasive and unsubstantiated. The applicant was given a number of opportunities at the hearing to provide information about his Christian faith, but was unable to provide convincing information.
The applicant was vague as to when he first joined the Christian church in China, as well as his reasons why he gave up the Buddhist faith to join such a church. The Tribunal finds the applicant’s statements as to why he became a Christian, such as ‘Christianity is really good’ to be entirely vague and lacking in substance. The Tribunal found the applicant’s descriptions of his attendance of church gatherings in China to be vague and lacking in convincing detail. He demonstrated a reluctance to provide details of what happened at such gatherings, instead jumping forward to state that he was not allowed to believe in Christianity and then he came to Australia. The Tribunal does not accept his claim that he could not remember whether his church in China had a priest or pastor.
The applicant was only able to provide very vague, general and limited information regarding his understanding of Christian beliefs. Although he claims he has read the Bible, when concern was raised about his knowledge of Christianity and the Bible, the applicant stated that he once read one section of the Bible. He claimed on a couple of occasions that he is unable to read. The Tribunal does not consider this consistent with his earlier claims that he has read the Bible and has many copies of it. The applicant provided approximations of three of the Ten Commandments, but also listed things such as ‘no gambling’, ‘no prostitution’ and ‘love the young’, which do not correspond to specific Commandments. The applicant gave unconvincing examples of a prayer recited in his church in China, or of a part of the Bible which is important to him. He was unable to name stories from either the Old or New Testaments. The Tribunal does not accept his explanation that all you need to be a Christian is to have Christ in your heart and to love Christ, as the applicant was unable convincingly articulate what Christians believe in.
The Tribunal also finds that the reference in the applicant’s written application to him joining the Shouters raises serious concerns about the truthfulness of his written claims, and of his application for protection as a whole. At the hearing, the applicant stated that he had not heard of such a church and he expressed disbelief that there was such a church as the ‘Local Church’. His evidence of his understanding and practice of Christianity was also not consistent with the beliefs and practices of the Local Church, including his lack of awareness of the Recovery Version of the Bible, which is central to the Local Church. He was unable to convincingly explain whether any words or phrases are called out during services at his church and was unaware of the triune nature of God, Jesus and the Holy Spirit, which is a key concept within the Local Church.
The applicant claims that he has attended a church in Sydney since 2017, for about one year before he was baptised in 2018. He claims that he attends when he has time and he has not attended for about six months. He claims that he is part of a [messaging service] group with his church, although he had provided no letters of support. The applicant was unable to name the church that he attends or clearly provide a location. He was also unable to state what denomination the church belongs to, other than stating that ‘we just say Jesus Christ’. He has not provided a certificate of baptism, and when asked whether he has one, he stated no, and then proceeded to say he was baptised in a large outdoor gathering. He gave an unconvincing explanation of what occurred during the baptism ceremony, stating that he and others promised to believe in god forever and not be enticed by Buddhism or Taoism. He also provided a very basic definition of what baptism means, saying it means he has chosen to believe in a religion and has become a Christian, which the Tribunal considers is a definition that a non-Christian would be capable of providing, and does not demonstrate any insight into what it means to be a Christian or to the applicant’s faith.
I do not accept that the applicant is, or ever was, a genuine Christian. Despite the Tribunal’s use of open questions to elicit evidence about his religious practice, the applicant demonstrated little understanding of Christianity, and instead relied on general statements about having Jesus in your heart. The Tribunal does not accept that the applicant has an understanding of what it means to be a Christian or have an understanding of basic Christian belief. The Tribunal finds the applicant’s evidence about attending a family church in China to be vague, general and lacking any convincing detail, and the Tribunal does not accept that he attended a family church in China.
The Tribunal did not find the applicant’s evidence of his attendance at a church in Sydney to be convincing. The Tribunal found the applicant’s description of the location of the church he attends to be vague and put to him that there are many churches in Sydney’s CBD, as well as many [Business 2 branches]. The Tribunal found the applicant’s inability to clearly provide the location of the church he attends to be inconsistent with his claim that he has attended this church since 2017. While the Tribunal accepts that the applicant may have on occasions visited a church in Sydney since 2017, and may have occasionally attended a service, it does not consider that his knowledge or Christianity, nor his knowledge of the location, name or denomination of the church are consistent with someone who is a regular attendee of services or a genuine Christian.
In the absence of any supporting evidence of his baptism, such as a certificate of baptism, the Tribunal does not accept that the applicant has been baptised. This finding is also based on the applicant’s inability to articulate what denomination of church he belongs to, as well as his unconvincing explanation of the baptism process and the unconvincing evidence of his Christian beliefs.
The Tribunal finds that the claims made by the applicant in his Protection visa application form were vague and lacked a level of detail which would make them convincing. The applicant claims that the police found his church, and that practicing any religion other than Buddhism was forbidden, that he was found to be in violation of the law and was taken to a labour camp. The applicant does not state when this occurred. He states however that when he arrived he was beaten, and he was punished for being a Christian, and that this continued for another two years. He claims that he was beaten daily and forced to work in farming and landscaping. He claims that he was only let out after two years because he had become too weak and it was no longer worth feeding him. The Tribunal finds the applicant’s oral evidence of his detention or re-education to be inconsistent with these written claims and considers that his oral evidence in this respect was also vague and evasive.
When asked how long he was detained, the applicant at first stated that it was a year or two, then stated it was for several months and up to a year. The applicant was also vague in his response to whether he was ever arrested. He stated that there was no detention and he received just a caution. He did not satisfactorily respond to the Tribunal’s concern that this evidence was inconsistent with his earlier evidence that he had been detained for a year or two. The applicant was unable to recall where he was detained, other than stating it was in his hometown or nearby. He could not remember what kind of place he had been detained in, such as whether it was a jail. The Tribunal does not accept that the applicant was unable to recall these details because, in his words, he does not have much education and is a bit slow. Rather, the Tribunal finds that the applicant was deliberately vague in his responses as he could not remember what claims were made in his written application.
The Tribunal also finds the applicant’s claims to mistreatment within detention to be vague and unpersuasive. When asked whether he was mistreated, he initially stated ‘There must have been a little bit’, and when pressed further, stated that he could not recall. When asked whether he experience any physical violence or torture, he again stated ‘There was a little bit.’ He was vague in describing such violence, stating only that it was like beating with a stick and that it was with the aim of re-educating him.
The Tribunal also put to the applicant that the reason he provided for his release from detention was inconsistent with that provided in his written claims. The Tribunal finds the applicant’s explanation for these inconsistencies is entirely unsatisfactory, noting that his explanation included that he could not remember some of the details, nor could he remember how the information was put in his application. The applicant was also unable to explain why he was arrested and why he was singled out from the others who attended church services with him.
The Tribunal finds the applicant has provided inconsistent accounts of how long he was detained, what mistreatment he received while detained and the reasons for his release. The Tribunal does not consider these to be minor inconsistencies, in particular the length of time which he was detained. There are potentially further inconsistencies in terms of the evidence of where the applicant was detained and the circumstances under which he was detained, however the Tribunal is not confident about making findings on these matters as the applicant’s written claims or evidence on these matters was vague.
The Tribunal also notes inconsistencies in the background information provided by the applicant, in particular his work history and his immigration history prior to arriving in Australia. At the hearing, the applicant stated that he had not travelled to any countries other than Australia. This is not consistent with the information contained in his visa application, in which he states that he travelled to [Country 1] in April 2015. He provided with his visa application a copy of his Chinese passport, in which there is an entry stamp for [Country 1] dated [in] April 2015 at page [number] pf the passport, which coincides with the arrival date for [Country 1] provided in his visa application form. The Tribunal notes that there appears to be a second entry stamp for [Country 1] on [the same page] of the applicant’s passport, this one dated [later in] April 2015. The text of these entry stamps is faint, however both appear to contain the word ‘admitted’, are clearly marked with ‘[Country 1]’ and both marked with ‘[the airport name]’. The Tribunal does not consider the applicant’s explanation for the discrepancy in his evidence to be satisfactory. He claimed that it has been many years and his health has been bad, but when asked what health conditions he suffers from, his response was vague, and he stated merely that his memory is bad. The Tribunal does not consider the applicant’s response to be convincing and finds that he was vague and evasive.
The Tribunal also notes the significant discrepancy in the details of the applicant’s employment history. The Tribunal finds the applicant did not offer a satisfactory reason why his visa application lists him as having worked for a [product 1] company for approximately 30 years, when in his oral evidence he stated he worked for himself selling [product 1] for about 7 years, and prior to that did odd jobs [in specified tasks]. Of concern was that when asked who organised his Visitor visa to Australia, the applicant gave the name of the company (‘[Business 1 abbreviated name]’ was provided at the hearing, compared to ‘[Business 1 full name]’ in his visa application) that he listed as his employer in his Protection visa application. The applicant was unable to explain his connection to this company, other than confirming that he had never worked there. This potentially raises concerns that the applicant may have provided false information about his employment in his Visitor visa application, however given the number of concerns which had already been raised by the Tribunal, the Tribunal did not consider it necessary to explore this potential concern further. The Tribunal finds however that there is a significant discrepancy between the employment background provided in his Protection visa application and the employment history the applicant gave at the hearing, for which the applicant was unable to provide a satisfactory response.

The Tribunal notes that it has not made any adverse findings regarding potential discrepancies in the hukou the applicant provided and his educational background, given the interpreters had some difficulty obtaining the precise spelling of these things. The Tribunal notes there an overall consistency in the hukou the applicant gave in his evidence with that contained in his written application, including the same town and same household number, although it notes a different name was provided for the primary school he attended.
Further concern about the above discrepancies is raised by the evidence given by the applicant regarding the preparation of his Protection visa application, including his comment that he was unaware of the contents of his application because it was all in English, the contents were not read back to him and his comment that it contains ‘some nonsense maybe’. The Tribunal put to the applicant that this may suggest that the information and claims contained in his visa application cannot be relied upon, as they appeared to have been written by someone else, and were not based on the applicant’s history. The applicant was unable to respond to this in a satisfactory way, responding that he did not know, and confirming that someone else had written the application for him.
Having considered all the applicant’s claims and all the evidence, the Tribunal finds aspects of the applicant’s evidence to be inconsistent, contradictory, unpersuasive and unconvincing. The Tribunal finds that the applicant is not a witness of truth. Given these concerns, I find that I do not accept the claims of the applicant and find that he is not credible in his claims.

100. The Tribunal accepts, on the basis of his passport, that the applicant is from Jiangxi Province. As noted above, the Tribunal finds that the applicant is not a genuine Christian and did not attend a family or underground church in China, nor did he practice Christianity in China. The Tribunal does not accept that the applicant was detained, arrested or imprisoned in China on the basis of any Christian faith or practice. The Tribunal also does not accept that he was tortured or mistreated in any way as a result of the practice of Christianity.
101. The Tribunal is prepared to accept that the applicant may have attended a church in Australia on rare occasions from 2017 onwards, however it does not accept that he has attended a church on a regular basis or that he has practiced Christianity in Australia. The Tribunal does not accept that the applicant was baptised in 2018, nor does it accept that he is part of a church community in Australia. It follows that the Tribunal does not accept that the applicant has undertaken any proselytising activities in Australia, including his claim that he
102. There is nothing to suggest that the applicant is or has ever been a member of the Local Church or ever attended a Local Church, either in China or Australia, and the Tribunal does not accept that the applicant would seek to attend a Local Church upon return to China. The Tribunal finds that the reference to the applicant practicing the Shouter faith in his written claims was written by someone other than the applicant and is not based on the applicant’s experiences in Australia or China. The Tribunal finds that on the basis of his evidence at the hearing, the applicant is unaware of the Local Church and the Christian faith he claims he has practiced is overall not consistent with the beliefs and practices of the Local Church, as set out in the country information report.
103. On the basis of these findings, the Tribunal does not accept that the applicant will come to the attention of authorities in China or come to any harm on the basis of his religious beliefs.
104. The Tribunal notes that on the basis of the above findings, it is not required to consider whether the applicant has attended church in Australia for the purpose of strengthening his claims to protection, and whether such religious activities would have to be disregarded under s.5J(6) of the Act. The Tribunal notes in passing that the applicant gave evidence that he did not attend a church in Australia until approximately one year before he was baptised in December 2018, which would place his initial attendance at a church in Australia around the end of 2017. The Tribunal notes that the applicant’s Protection visa application was made in September 2016, at least a year before he claims he first attended a church in Australia. This would suggest that any attendance at a church has been for the sole purpose of strengthening his claims to protection, however the Tribunal has already found, for the reasons stated above, that it does not accept that the applicant has genuinely attended a church in Australia, nor does it accept that he has been baptised.
105. The Tribunal finds that even if the applicant were to attend a church in China out of interest, given the manner of his engagement with religion to date, including his claim that he attends a church in Sydney, of which he cannot remember the name or denomination, the Tribunal is not satisfied that his attendance, whether at a registered or unregistered church, would attract adverse attention from authorities. The applicant demonstrated very limited understanding at the hearing of what it means to be a Christian and no understanding of different Christian denominations or churches, and there is nothing to indicate that the applicant would have any objections in attending a registered church in China because of any political or religious values. The applicant himself gave evidence that there is no particular reason why he attends the church he attends in Sydney, and that he is fine with all of them as they are all Christian. The Tribunal considers that based on the independent country information, the applicant could attend a registered or small unregistered church in Jiangxi Province as an ordinary worshipper, with only a remote risk of being harmed by the authorities or anyone else. The applicant’s written claims in his visa application are premised on a claim that practicing religions other than Buddhism is forbidden in China, and that he will not be able to practice Christianity if he returns to China. The applicant made a similar claim at the hearing, and in response to questions from the Tribunal, he confirmed his belief that one is not able to practice Christianity in China. This claim is not supported by the country information set out above, which indicates that China recognises both Protestantism and Catholicism as official religions, and that it is possible to practice both religions in a state-recognised or unregistered church. The latest country information report does not contain any specific information regarding religion in Jiangxi Province, other than to note that it is a neighbouring province to Fujian, where individuals have historically practices more freely within state-sanctioned boundaries than in other parts of China.[3] The applicant claimed at one point that there is no Christianity in Jiangxi, but then appeared to contradict himself by saying there were both Buddhists and Christians. The Tribunal found the applicant’s arguments about the absence of Christianity in Jiangxi Province to be vague and unpersuasive.
[3] DFAT Country Information Report People’s Republic of China 3 October 2019, paras 3.33 to 3.36.
106. I am therefore satisfied that there is no real chance that the applicant will be questioned, harassed, detained or otherwise harmed by the authorities or anyone else for reasons of religion, now or in the reasonably foreseeable future.
107. In addition, the Tribunal notes the applicant was able to depart China for Australia on two occasions in 2015 from a major airport without incident. This is in addition to two earlier trips to [Country 1] in April 2015. According to the most recent DFAT Report (3 October 2019), security monitoring capabilities at China’s major airports are comprehensive, and departing passengers pass through several identity checks, including passport and ticket/boarding pass inspection, run by different agencies between arriving at the airport and boarding a flight. According to this report, the Chinese government maintains an immigration exit control list.
108. A similar state of affairs is recorded in the earlier DFAT country information reports, issued on 21 December 2017 and 3 March 2015. According to the 2015 report, China’s major airports have a centralised system with name matching alert capabilities, and security monitoring capabilities at major airports are comprehensive. The Tribunal considers that the applicant’s ability to depart China without attracting any adverse interest, indicates that he is of no concern to authorities, and as such this does not support his claims that he was detained or re-educated in China for a period of somewhere between a few months to two years.
109. The above findings are further supported by the applicant’s delay in departing China after his claimed detention, his return to China in 2015 and his delay in claiming protection after arriving in Australia. The applicant did not arrive in Australia for the first time until [August] 2015, approximately four to five years after he claims he was detained or re-educated because of his Christian beliefs. Even if the Tribunal were to accept that he was detained for approximately two years (which it does not), with a generous interpretation of the dates and events provided by the applicant, this would indicate that he remained in China for at least two to three years after he was released from detention/re-education. Furthermore, after arriving in Australia in August 2015, the applicant then departed [in] October 2015 and returned to China. The Tribunal also notes that the passport the applicant provided with his Protection visa application, indicates that he visited [Country 1] on two occasions in April 2015, and he then returned to China after each occasion. The Tribunal considers this as further evidence that the applicant does not genuinely fear returning to China for the reasons claimed.
110. The applicant's delay of over a year in lodging his application for a Protection visa casts further doubt on the genuineness of his fear and the credibility of his evidence. The applicant has not provided a meaningful explanation for why he delayed lodging his protection visa application. In the Tribunal’s view, the delay is suggestive of the applicant not having a genuine fear of harm if he were to return to China.
111. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to China, now or in the reasonably foreseeable future.
112. 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).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
113. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
114. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB[4] the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagott JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342]
115. ‘Significant harm’ is defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
116. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
117. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.
118. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion
119. 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).
120. 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).
121. 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 criterion in s.36(2).
DECISION
122. The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4220

1 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction