1716534 (Refugee)

[2021] AATA 4549

1716534 (Refugee) [2021] AATA 4549 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1716534

COUNTRY OF REFERENCE:                   China

MEMBER:Genevieve Hamilton

DATE:9 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 September 2021 at 1.11 pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – Local church – Shouters – physical assault – arrest – church attendance in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379

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

BACKGROUND

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

2. The applicant arrived in Australia on a visitor visa granted [in] January 2015, valid for 12 months maximum 3 months stay per entry.  She applied for a protection visa on 29 June 2015.  The delegate refused to grant the visa on 24 July 2017.  On 29 July 2017 the applicant applied for a review of the decision. 

3. The applicant’s husband is also an applicant for a protection visa (Tribunal case [number]). 

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s.36 of the Act.  An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c).  Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds, or be a member of the same family unit as such a person.

   Refugee

6. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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). 

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

8. The criterion in s.5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

9. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

10. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). 

11. A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s.5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s.5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion in s.36(2)(a), they may still be a person to whom the Minister is satisfied Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm: s.36(2)(aa).  S.36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

    CLAIMS AND EVIDENCE

14. In her protection visa application the applicant said she arrived in Australia with a valid visa.  She was born on [date] in Fuqing City, China.  She is a Chinese citizen.  She speaks, reads and writes “Chinese”.  Her religion is “Local family church” (Christian).  Her occupation is home duties.  She married in Fuqing in January 2005.  Her parents and [specified family members] were born in Fuqing and live in China.  She came from [Town 1 in] Fuqing City.  She is in contact with her husband and [child] in China once or twice a week.  She has no Australian personal contacts.  The applicant said she had never been employed.  She completed Junior High School in [year]. 

15. The applicant said she left China legally travelling on her passport issued in [2011]. She obtained her passport legally through regular channels. Her last address was 1[an address in Town 1], Fuqing City. Her husband and [child] still live at that address. She came to Australia as a visitor. Her visitor visa was issued [in] January 2015 and was valid for 12 months. She arrived [in] February and did not leave Australia after her first arrival.

16. The applicant said she had never been convicted of any offence nor was she the subject of any criminal investigation or criminal charge.  She said she did not have any assistance from an interpreter in completing the application.

17. The applicant said she was seeking protection so that she did not have to return to China.  She fled China for reasons of her religion.  She was arrested and detained for practicing her religion from [in] December 2014. 

18. The applicant said her Church is a local family church in Fuqing City. It is prohibited by the Communist regime.  It is considered an evil sect or cult, and banned all over China.  Anyone found to be present and participating in local family church activities will be arrested and detained for about two weeks.  The applicant was arrested at a church gathering.  She was assaulted, abused, intimidated and harassed by the Fuqing Public Service Bureau.  She was warned that if she was found at her church again she would face more serious punishment.   But she cannot live without her religion and her family church practice.  Therefore there is a strong chance she will be arrested, detained and even gaoled.  Relocation is not an option due to the strict household registration system, and in any event the local family Churches are banned throughout China.  She could not seek the protection of the authorities.  The only protected churches are those who are registered with the “Three Self Patriotic Associations”.  The applicant said she would be submitting a custody release document. 

19. The applicant provided a photocopy of a document typewritten in Mandarin with hand written dates inserted.  It was accompanied by an uncertified (and therefore undated) translation.  The translation states that the applicant was detained by the Fuqing PSB for “administrative/juridical detention/interrogation” (this later is inserted by an ink stamp) [between dates in] December 2014.  The documents states that “having served the time now, she is discharged from here”.  It is purportedly sealed and dated [in] December 2014 by the [named] Detention Centre.  The Tribunal identifies this as the custody release document. 

20. The applicant was interviewed by the Department on 17 July 2015 in relation to her protection application.  After the Delegate’s decision was made, more documents were supplied, accompanied by a letter from the applicant typewritten in English reiterating her claims. 

21. One document was a letter from [Church 1] (based in [Australian town]) stating that the applicant regularly attends the Church. 

22. The other document purports to be an Outpatient Medical Record of [a named] Hospital [in] Fuqing City pertaining to the applicant.  It is in the form of a booklet with a cardboard cover containing some of her identity details handwritten into a form, and the number of the record is [number].  Inside the booklet are some blank pages on which notes can be written.  There is one handwritten note which, according to a certified translation, states that the applicant was beaten by the police causing soft tissue [bruising] and vomiting.  It goes on to diagnose both [bruising] and brain concussion.  The recommended treatment is rest, a skin spray, and eye drops. 

23. The Tribunal has received a copy of the applicant’s visitor visa application.  In it her husband and child are differently identified than in her protection visa application.  At the Tribunal hearing the applicant did not recognise the visitor visa application and said she did not sign it.  Post hearing documents identified the applicant as being married to her husband as claimed in the protection visa application.  The Tribunal therefore disregarded the erroneous contents of the visitor visa application.

24. In support of her review application the applicant submitted photos of her and her husband at [Conference 1], her entry card for the conference, study materials from the Conference, and news articles.  She also submitted a certified copy of the custody release document.  In an accompanying statutory declaration the applicant reiterated her claims.  She said that her church is classified as an evil cult or “shouters” and banned across China, and that numerous local church members had been persecuted over the decades.  She reiterated her claim to have been detained and harmed, and said her husband had also been detained, abused and assaulted by the Chinese Government.  They engaged an agent to flee China.  In Australia and China they are devoted local church members.  They have attended [Conference 1] each year including online during Covid. 

25. Among the news reports submitted by the applicant is one from Bitter Winter about incidents of the detention of Local Church preachers and practitioners and confiscation of their Bibles.  Others are about house churches and other religious groups. 

26. A combined hearing of the Tribunal was conducted on 9 April 2021, including the applicant and her husband, as they have similar and related claims. 

    FINDINGS AND REASONS

27. 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.

28. Based on the information on the Department’s file, the Tribunal finds that the applicant is a Chinese national.  

29. The applicant claimed she was a local family church Christian in China, that it was considered an evil cult in China, she attended Melbourne Church in Australia (a branch of Local Church) and said it was the same as the one she attended in China which, she said at interview, was described by the authorities in China as the Shouters. 

30. The history, structure, doctrine and unique worship of the Local Church, and how it came to be banned by the CCP and labelled the Shouters and listed as a cult (due to its links to the US and Taiwan, its evangelical enterprise, and its resistance to registration) is described in the (former) RRT background paper “The Local Church in China” issued in January 2013.  Further information about Local Church is available on its website The website does not identify any branches in mainland China. 

31. The DFAT Country Information Report on China dated 3 October 2019 (“DFAT Report”) contains the following information about religious practice in general, and various Christian practices in particular, including a short note on the Local Church:

    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.

    …

    3.48 DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

    …

    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, [the CCP] historically permitted friends and family to hold small, informal prayer meetings without official registration.  This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.

    3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests. 

    …

    3.87 Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 100 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities. DFAT is aware of, but cannot verify, reports of authorities pressuring house churches by cutting off electricity or forcing landlords to evict members. Some members of house churches claim to have been able to use registered church facilities for weddings, or to purchase bibles. Others have reported difficulties in hiring even commercial facilities such as hotels or restaurants, because of their association with illegal churches. Christian organisations report house church members were arrested in 2017 for refusing to register with the TSPM, and Christian schools were closed for ‘brainwashing’ children.

    3.88 … In May 2019, media and Christian advocacy groups reported the government launched a new campaign called ‘Return to Zero’ in April 2019, aimed at eradicating underground house churches and ensuring only state sanctioned and heavily restricted TPSM churches remained functional.

    3.93 The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. …

    3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity.  Eleven banned groups were listed as ‘dangerous’ on the xie jiao website:… [including] The Shouters.

    …

    3.105 The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.

    3.106 The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning (also known as the Church of Almighty God, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.

32. Bitterwinter is an online magazine on religious liberty and human rights in China published by CESNUR, the Center for Studies on New Religions, headquartered in Torino, Italy.  It has received and published occasional reports of Local Church leaders and practitioners being detained.  These reports cannot be verified but they are consistent with the DFAT report.  

33. The Tribunal does not accept that the applicant is a member of [Church 1].  She was familiar with the essential elements of its services and core tenets but the Tribunal gives this little weight as these things can be readily learned.  The applicant has attended Local Church services and Christian events including [Conference 1s].  This is supported by the letter from [Church 1].  The Tribunal was not able to make contact with [Person A], a witness the applicant requested be heard on the point that the review applicant is a devoted Local Church member.  The Tribunal accepts that the witness would have given evidence to that effect.  However this evidence is outweighed by the totality of concerns set out below. 

34. The applicant’s credibility was tainted by a number of factors.  When she was asked at her protection visa interview how she and her husband know the location of each gathering the applicant said there is no formal notification, they act on inspiration.  The exchange between the Delegate and the applicant proceeded as follows: How does your husband know where to go?  “We just know”.  So you just guess?  “We know in our heart, by inspiring message from God”.  But there is more than one Elder?  “We just know in our heart and we have never made a mistake.”  At the Tribunal hearing the applicant said that what she had meant was that they knew the schedule by heart in the sense that they had memorised it.  In response to a natural justice letter pursuant to s 424A she made the same claim.  However this pragmatic inference cannot naturally be drawn from the exchange as it took place at the interview.  If she was a Local Church worshipper she would have been able to answer the question how the schedule of worship at each venue is organised and communicated to worshippers.  Therefore, the applicant’s claim to have been attending [Church 1] before the interview was untrue. 

1. The period of time elapsing between an applicant’s arrival in Australia and the making of the application for refugee status is a legitimate matter to take into account when assessing the genuineness, or at least the depth, of the applicant’s fear of persecution.  At the hearing the Tribunal asked the applicant why she did not apply for a protection visa sooner after her arrival in Australia.  The applicant said she did not know about protection visas, it was about 3 or four months after her arrival that a sister from the Church told her about them (this is consistent with what she said her protection visa interview with the Delegate).  The Tribunal noted that the applicant had come to Australia, on her own claims, to seek protection, and had used an agent in China to advise her on visas.  She would have been aware that she was on a limited visa.  The applicant said that she did know that Australia had religious freedom but she was too afraid to share her experiences with others.  She confirmed she was aware she had become unlawful prior to applying for protection.  The Tribunal is not persuaded by the applicant’s evidence on this point.  The applicant claims to have experienced serious harm in China due to her religious practice and that she fled to Australia for this reason, and soon sought out fellow religious practitioners here.  The concept of refugee status is a matter of widespread public comment in Australia.  The Tribunal would have expected that someone in the applicant’s situation would at least enquire as to how to lawfully stay in Australia.    

2. In her protection visa interview when listing her housemates the applicant initially did not mention her husband was living with her, but described him as a brother from the Church.  Only when questioned about whether her husband was living with her did she say that his person was her husband.  The Tribunal put this matter to the applicant in writing pursuant to s 424A.  The applicant replied that she used the word brother refer to her husband as that is the term people use to refer to their spouses (brother, sister), in the church.  She provided a translator’s note, and a letter from a Church member, to this effect.  However the Tribunal does not accept this explanation, as the applicant was not in Church at the time, she was being asked to identify her housemates.  The applicant was evasive about the whereabouts of her husband, which the Tribunal gives some weight in assessing her credibility. 

3. The Tribunal is not required to accept an applicant’s claims uncritically and other than her own assertion there is no evidence that she attended Local Church in China.  In view of the Tribunal’s concerns about her overall credibility, the Tribunal does not accept that she was a Local Church worshipper in China.  It follows that the Tribunal does not accept that the applicant was detained and mistreated as she claims, for participating in Local Church.  This finding is reinforced by her weak evidence regarding this event.  The Tribunal asked the applicant what happened to the other practitioners that were taken in by the police.  The applicant said she did not know because she came to Australia shortly afterwards.  The Tribunal queried why the applicant would not have some information about her fellow practitioners’ experiences of such a traumatic event, surely they would have discussed it?  The applicant said they did not ever discuss it.  They tried to avoid the topic because they had been mistreated.  Asked how the applicant knew the others had been mistreated the applicant said she was referring to her own mistreatment.  The applicant said they were held separately and she was afraid of any further contact and then she came to Australia.  The Tribunal was not persuaded by this answer. 

4. In making the foregoing finding the Tribunal gives little weight to the Detention Release Certificate.  As put to the applicant at the hearing it is not on official letterhead and despite the stamps does not contain any security features identifying it as a genuine government document.  The DFAT Report says at paragraph 5.66: “There is a well-established history of individuals from Fujian using fraudulent documents to obtain visas to Australia and other western countries. Fraudulent activity is supported by highly organised and well-resourced networks of agents and counterfeiters. High-risk documents include financial and employment records, which can be either fraudulent or altered. Organised immigration malpractice and syndicates selling immigration packages for visa applicants are active in Fujian. Syndicates have been known to alter identity documents such as passports or national identification cards to misrepresent the applicant’s place of birth (to avoid greater scrutiny of their applications). Sources report that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance.”  The Tribunal is not satisfied that the release certificate is genuine. 

5. The Tribunal gives little weight to the medical record.  Noting the prevalence of document fraud as described above, the document only contains one record which is self-serving in the sense that it attributes injuries to the applicant being beaten by the police, which is not diagnostic.  The Tribunal is not satisfied that the medical record is genuine. 

6. The Tribunal would not go so far as to find that the applicant’s participation in Local Church in Australia was motivated solely to support her protection visa application as there may also be social benefits in a connection to the Church.  But the Tribunal finds that her involvement the Church has been largely to support her application.  The Tribunal is not satisifed that the applicant will worship at Local Church in China on return to China or in the reasonably foreseeable future.  The available country information would not support a finding, and the Tribunal does not accept, that the Chinese authorities take an adverse interest in church attendance by their nationals in Australia, as an isolated factor. 

7. Having considered the evidence as a whole, the Tribunal does not accept that the applicant faces a real chance of serious harm for reasons of her religion or any other reason.  She therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

8. Having concluded that the applicant is not a refugee, the Tribunal considered whether the applicant is a person to whom Australia owes complementary protection obligations.  The Tribunal has not accepted the factual basis of the applicant's claims to fear harm in China.  The Tribunal is therefore not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence of being removed from Australia to China, there is real risk that she will suffer significant harm.

   CONCLUSION

9. For the reasons above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion in s.36(2)(a) or under the complementary protection criterion in s.36(2)(aa).

10. The Tribunal has affirmed the Department’s decision refusing the applicant’s husband a protection visa in case [number].  The applicant does not satisfy s.36(2) on the basis of being a member of the same family unit as a person who holds a protection visa.

11. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Genevieve Hamilton
    Member