1717820 (Refugee)

[2021] AATA 3475

1717820 (Refugee) [2021] AATA 3475 (7 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717820

COUNTRY OF REFERENCE:                   China

MEMBER:Genevieve Hamilton

DATE:7 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 07 July 2021 at 1:30pm

CATCHWORDS

REFUGEE – protection visa – China – religion – members of Local Church – period working unlawfully in the community – delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB 2013 FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

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 was granted a student visa on 27 March 2008 and came to Australia on [date] April 2008.  Her visa expired on 16 March 2010.  She applied for a protection visa on 20 July 2016.  She was interviewed by the Minister’s Delegate on 1 August 2017.  The Delegate refused to grant the visa on 4 August 2017, and on 13 August 2017 the applicant applied to the Tribunal for review of the Delegate’s decision.  A copy of the Delegate’s decision was attached to the review application.  The Delegate’s decision includes the applicant’s visa history as outlined above.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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 family unit of such a person.

   Refugee

5. 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).  

6. 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.

7. 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.

8. 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)).

9. 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). 

10. 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). 

11. 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

12. 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.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB 2013 FCAFC 33.

    CLAIMS AND EVIDENCE

13. In her protection visa application forms (in which the details were typewritten in English), the applicant said that she came to Australia with a valid visa and was immigration cleared.  She was born on [date], in Fuqing City, and is a Chinese citizen.  She speaks, reads and writes Mandarin and no other language.  Her religion is Christian, and she is unemployed.  Her parents and older brother are living in China.  She is in contact with them by phone and [social media] on a weekly basis.  She arrived in Australia [in] Apr 2008, travelling legally on her Chinese passport issued [in] 2007, on a student visa issued 27 March 2008.  Her residence in China was in [named] Village, [named] Township, Fuqing City. 

14. The applicant said she withdrew from Senior High School [in] April 2008 and studied at [a school] in [City 1, Australia], until December 2009.  She has never been convicted of any crime nor is she the subject of any criminal investigation or charges. 

15. The applicant said she was seeking protection in order not to have to return to China.  The reason she left China was due to the education and potential migration opportunities for international students in Australia.

16. Everyone in her family including her parents and brother are devoted Christians back in China.  They practice their belief at family church in Fuqing City, an unregistered church.  In 2007 she was called in to her school principal’s office and warned that the school had information that she was heavily involved with the family church in Fuqing, that the family church is outlawed, and people may only attend registered churches.  She was suspended for a week and warned that she would be expelled if the principal received information that she was still practising her faith at the local family church.

17. Her mother was arrested and detained by the Fuqing Police on [date] March 2016.  She was held for 9 days during which she was beaten, humiliated and threatened by the police who repeatedly questioned her and demanded information about the local family church.  She suffered both physical and psychological harm and persecution.  The applicant was concerned that if she had to return to China, she would continue to practise at her family church and there was a strong chance that she would be detained and harmed by the authorities.  The law is the same throughout China.  The applicant said she would be providing her mother’s custody release certificate. 

18. The applicant said she did not receive assistance from anyone, including an interpreter, in completing the application forms. 

19. Folio 40 of the Department’s file is a colour photocopy of a form in Mandarin with some characters and dates inserted in handwriting and inkstamp, and seals (“Detention Release Certificate”).  According to its translation the seal is of [named] Detention centre and the document says the applicant’s mother was in administrative detention from [date] March to [date] March 2016. 

20. In support of her review application the applicant provided the translation of the “detention release certificate” in relation to her mother, a letter from [two named individuals] of the Church in [City 1] saying that she was a regular attendant at the Chinese language district/combined meetings and an active participant in small group meetings, a statutory declaration summarising her claims and addressing aspects of the Delegate’s decision, some news reports about repression of religion in China, and photos of herself at Church in [City 1].  In her statutory declaration the applicant said she was a devoted local church member in China and in Australia, and reiterated her claims concerning her mother.  She id said that her delay in applying for protection was due to having been told that it would be very difficult to be granted protection without substantial evidence that a family member had encountered harm.  Also she could only apply once. 

21. 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. 

22. The applicant attended a hearing of the Tribunal on 15 April 2021.  The hearing was assisted by an accredited Mandarin interpreter. 

    FINDINGS AND REASONS

23. 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.

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

25. During the protection visa interview it emerged that the applicant was claiming that she and her family were members of Local Church.  Her religious practice in Australia was the same as that of herself and her family in China.  She did not pursue any claim to fear persecution as a Christian in general, or a member of any other unregistered Church. 

26. 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. 

27. 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.

28. 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.  

29. Both at interview and at the hearing the applicant was quite familiar with Local Church worship in Australia and the history of the Church, and the Tribunal accepts that she has worshipped at the Local Church here.  This is supported by the letter from the Church in [City 1], and her photographic evidence.   

30. The Tribunal is not satisfied that the applicant was a Local Church member in China, or that she joined the Church in [City 1] shortly after arrival.  In her protection visa application the applicant said she was a member of an unregistered “family church” or “local family church”.  But the Local Church (labelled Shouters by the CCP) is a distinct denomination, whereas family churches are, as their name indicates, simply groups of worshippers who gather at a family home.  At the interview the applicant named her Church as [a named church].  Asked at the Tribunal hearing whether she was a member of a family church or the Local Church the applicant said they don’t have a building so they worship in people’s homes.  The Tribunal observed that family churches and Local Church are not the same thing despite this.  The applicant claimed that in her area they are the same.  However they are not the same, and the applicant’s failure to identify Local Church specifically in her application indicates a lack of familiarity with the Local Church at the time she made her application. 

31. In her protection visa application the applicant said that her Church is outlawed in China and people can only attend registered Churches.  At the hearing she said she joined Local Church soon after arriving in Australia.  However she did not apply for protection until more than six years after her student visa expired.  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.

32. At the Tribunal hearing the applicant said she studied in Australia for about 9 months to a year.  Asked why she stayed in Australia without a visa when her student visa expired in March 2010 the applicant said her family had borrowed a lot of money for her studies and she felt responsible to do her part to help them pay back the loan.  The sisters gave her occasional [work] and since then she had steady part time [work] for a succession of employers.  She had no work rights, but she had to pay rent and food, and pay back her debt.  The Tribunal observed that it could appear that the applicant had stayed in Australia to make money, rather than only working to survive because she was in need of protection.  The applicant said she could not lie to the Tribunal about working unlawfully.  She did, however, come to Australia intending to study. 

33. Asked why she did not apply for protection sooner the applicant said Sister [A] (a practitioner whose home in [Suburb 1] she attended for gatherings) and Sister [B], told her she couldn’t apply without evidence.  The Tribunal asked the applicant why she accepted this advice, given that she claimed the Local Church was persecuted in general, and that she herself had been threatened with expulsion from school.  The Tribunal observed that the applicant would have wanted to attempt to regularise her visa status on ceasing studies.  The applicant said she had no choice: she could only apply for a protection visa once and she needed hard evidence in order for the application to succeed.  The Tribunal is not persuaded by this answer, as to remain in Australia without residence or work rights carries risks of detention and removal at any time, it is not plausible that the applicant would rely on the unqualified advice of just two people from her Church. 

1. As the Tribunal does not accept that the applicant was a Local Church member in China, the Tribunal is not satisfied that the applicant was suspended, or threatened with expulsion from school, for Local Church involvement.  The applicant claimed her family were all in the same Church.  As the Tribunal does not accept that the applicant was a Local Church Member in China, it does not accept that the applicant’s family were members of Local Church or that her mother was detained as claimed, for being a Local or unregistered Church Member. 

2. The Tribunal gives little weight to the detention release certificate.  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. … Organised immigration malpractice and syndicates selling immigration packages for visa applicants are active in Fujian. …  Sources report that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance.”  At the hearing the Tribunal observed that document fraud was considered to be quite common in Fujian and it had doubts about the genuineness of the detention release certificate as evidence of the applicant’s mother having been detained.  The applicant maintained that the document was genuine.  However, the Tribunal is not satisfied that the release certificate is genuine. 

3. The Tribunal does not reach a finding that the applicant’s only purpose for attending Local Church in [City 1] is to support her refugee claim.  However, in light of the foregoing findings, the Tribunal is satisfied that it is her main reason.  The Tribunal is therefore not satisfied that the applicant will continue to worship at Local Church in China.  There is no evidence before the Tribunal that her participation in the Church in [City 1] has or would come to the adverse attention of the Chinese authorities. 

4. 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). 

5. 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 there is real risk that she will suffer significant harm on return to China.

   CONCLUSION

6. 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).

7. The Tribunal is not satisfied, that the applicant is a person in respect of whom Australia has complementary protection obligations under s.36(2)(aa). 

8. 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 holds a protection visa.

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

   DECISION

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

    Genevieve Hamilton
    Member