1718111 (Refugee)

1718111 (Refugee) [2018] AATA 1010 (26 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1718111
COUNTRY OF REFERENCE:                  China
MEMBER:Sean Baker
DATE OF ORAL DECISION:  26 March 2018 at 12.42pm
DATE OF WRITTEN STATEMENT:         6 April 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 April 2018 at 11:34am

CATCHWORDS
Refugee – Protection Visa – China – Religion – Christian - Local Church – Shouters – Fear of persecution from state authorities – Risk of harm remote – Witness credibility – Limited knowledge of Christianity
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 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 [in] July 2017. The delegate refused to grant the visa on the basis that the applicant lacked knowledge of Christianity or commitment to Christianity, and found that the applicant was not a genuine practicing Christian of any denomination or had any interest in embracing the religion, and had not attended weekly Church services, nor would practice any form of Christianity in China and therefore would not be detained or arrested or face any form of harm on the basis of his claimed religious beliefs. The applicant provided a copy of the delegate’s decision to the Tribunal.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 26 March 2018.
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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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. 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
The applicant provided claims in his protection application. He claimed that he would be prosecuted or suffer significant harm, mentally or physically if he went back to China because of his beliefs, and stated he feared the agents of the state and could not relocate as the persecutor was the state. He claims that the Communist Party believes that religion is an adverse factor on society and referred to many religious groups as evil cults and prosecuted them. He said he feared being detained or forced to give up his belief and stop religious activities. The authorities will not protect the freedom of his religious beliefs.
He attended an interview with the delegate at which it was claimed:
·The applicant is married with two children. His wife and children live in Fujian Province together with his parents. They are practising Buddhists. He has [a] brother who is a Buddhist;
·He chose to come to Australia because he wanted to go sightseeing;
·He fears returning to China because his church had gatherings every week with lots of people and this is not allowed in China. They are considered to be illegal and the followers would be incarcerated by the authorities;
·He developed an interest in Christianity when he was randomly approached by two female missionaries on the streets of [Australian City 1] in December 2016. He does not remember their names, but he recalls they were female. They talked about how Christ loves the world. They handed out pamphlets. He previously was a Buddhist;
·He started attending church services in April 2017 with a friend;
·The applicant did not know the name of the church or the denomination he belongs to, but called the church “Shouters”. He was uncertain of the location of the church gatherings in Australia. He uses the navigation application on his phone to find the Church. He believes the church is in [Australian Suburb 1];
·He does not know the name of the elder or religious leader at this church;
·The applicant has not been baptised because the elder would decide whether he has a deep knowledge of the religion before he baptises him. Through baptism his sins would be washed away and he formally becomes a Christian;
·At the gatherings he feels completely relaxed and he would attentively listen to the elder preach. His friend would translate the sermons to him so that he could understand. They pray at the gatherings, and do activities;
·He is not familiar with any prayer;
·They gather weekly, sometimes Saturday, sometimes Sunday;
·There is no suppression in Australia and he would be able to freely practise his religious beliefs;
·He occasionally reads the Bible but he does not understand it. He does not have a Bible of his own;
·He does not know any stories from the Bible, but his friend would tell him some stories. He does not have strong feelings;
·He used to be introverted and since coming to Christianity he discusses Bible stories and feels free;
·Jesus inspired him to love the world and to have his sins washed away;
·If he returns to China he would have to give up his faith, and that would be terrifying;
·He does not know anyone in China who attends church gatherings;
·He is at the initial stage of Christianity and does not have a deep and profound knowledge of the religion; and
·In the future he would showcase a commitment to Christianity and immerse himself into the faith.
The applicant provided a statement to the Tribunal in which he said that before he came to Australia he did not have much contact with Christianity. He was approached by two missionaries on the street of [Australian City 1] in December 2016 and he started to attend church gatherings in April 2017 in [Australian City 1]. Following attendance at local church in [Australian City 1] he had started to show interest in Christianity and been connected with Christianity in Australia. From then on he had regularly attended church gatherings in [Australian City 1] and he is now a firm believer of Lord Jesus at local family church in [Australian City 1]. He is aware that the Church which he has been attending in [Australian City 1] is proclaimed as “evil cult” or “shouters” in China and is under suppression by Chinese government from time to time. In October 2017 he was baptised and is now a devoted Christian. The local family church in China is still strictly banned and still proclaimed as “evil cult” or “shouters” and is still constantly harassed and persecuted by the Chinese government. If he has to return he cannot give up his religious belief and he will continue to practice at the local family church in China, thus there is a strong chance that he will suffer harm and persecution by the Chinese government. He is unwilling to return to China as he is really concerned that he can suffer serious harm and persecution by the Chinese government when he returns to China and continues to practice his religious beliefs in China.
The applicant was born and lived in Fujian. He is married and has two children and they remain in Fujian. He was a [occupation] in China. In Australia he said he engages in odd jobs with friends. At hearing he described his previous religious life in China – he said he was Buddhist but only went to the temple once a year; his parents were more devout and went frequently. He said that neither he nor anyone else he knew had had difficulties practicing Buddhism. He said in China he had heard about Christian groups but had not gone to them as he was not thinking about that much, he was just doing his job. He confirmed he had had no contact with any Christians or Christian groups in China.
At the hearing the applicant discussed his church attendance and the practice of his faith. He explained that he had become interested in Christianity when two people on the street had come up to him to talk about Jesus, but also that his classmates had been attending this activity and had been very religious. Despite him describing the meeting with the two missionaries on the street as significant at the Department interview and in his statement to the Tribunal, he was able to tell me very little about these two people, what they had said to him or which church they came from. His evidence on when he started attending church was also confused – he said he had officially started attending in April 2017, but that he had been going before that, but he had not had a car until April so he started attending then. It appears that the applicant was indicating that he attended sporadically before April and regularly after April but his evidence was not clear. We then spent a considerable amount of time discussing which Church he went to and where it was. He eventually showed me on his phone an address in [Australian Suburb 1] that corresponds to ‘The Church in [Australian City 1]’ – but he then said that he attended here once a month, and an address that he could only describe as [a particular] street twice a month and then once a month in [another suburb]. He said he had given me the [Australian Suburb 1] address as this one was larger. The applicant described what happened when he went to church. He said someone will hand out music notes of randomly picked music from the bible and they will sit down and start singing and then they do a prayer and then they have food together. He later clarified that by food, he meant that after they prayed they ate bread and drank from a cup. The applicant, on being asked, demonstrated a typical prayer by clasping his hands, bowing his head and reciting quietly ‘Oh my lord I believe you are the son of the god. I accept you, you are my life saviour, hang self on cross because of us, blood to wash our sins. Amen.’ I asked if, apart from doing this prayer and singing songs from bible and sharing food and drink there was anything else they did. He said normally that was it. Sometimes the leader would be there and teach them a story from the bible.
I asked if there was a pastor or priest that I could talk to to discuss his attendance. He said they did not have priests but elders, he said there were four elders, whose names were [various names], but he did not have contact details for any of them. He said that I could speak to a friend of [his], but said that I needed to refer to the applicant as [Mr A, a different name], as this was the name he was known to the witness by. I explained that I had some concerns with this because it would not be clear that the person the witness was speaking about was the applicant. He maintained that this was the name he was known by.
I then spoke to the witness. He confirmed that he attended Church in [Australian Suburb 1] with [Mr A] and they had been going for about half a year together. He said that because they are Christians they sing and pray and read the bible. He said they are Christian and don’t have priests but had leaders there. The witness said that he knew that [Mr A] really wished to stay here and if he can find a way to stay here he will stay and be a really religious person.
I asked the applicant if there was anything else he did as part of his Christian faith other than Church on Sundays. He said that he helped others as much as he could and basically he would try and do good things. He said he would occasionally go to Church on Saturday as well as the Sunday. He said they did the same things on Saturday – they would sing and pray and eat food.
The applicant explained his motivations for joining a Christian group – he said that when he was little his parents’ business failed and they left him with his uncle whilst they worked so he was a closed person since he was young. This group felt to him like a big family and he could feel the warmth from a big family. He said this sense of togetherness and being able to help each other was important.
I asked him if there was a part of Christian teachings or Bible that was important to him. He said there was and when prompted he said ‘I love you just like my father loves me.’ He could not tell me where this was in the Bible. When asked if there was anything else he said ‘If people love me they must obey my rule’ and ‘People will go with my father and live with him’ and ‘You should stay within my love often.’ I asked him what these ideas meant to him and he said because of his upbringing and the way his parents would talk to him he was really sensitive to a father’s love.
I noted he said he had been going to Church for a year and asked if he had learnt any more about the teachings of Christ or the Church. The applicant recounted the story of the loaves and fishes. I asked him what this story meant to him and he said that Christ did a miracle to these people. I asked again why this was important to him. He said it made him me feel that Christ is there and when we are facing difficulty he will come to help.
The applicant said he had been Baptised. He said this happened in October last year but he could not remember the exact date, sometime in the middle. I asked what Baptism meant to him and he said ‘live together, die together, born together, if you believe me you will live, if you don’t you will die.’ I noted that this seemed a fairly important event then and he agreed. I noted that it seemed strange that he could not tell me exactly when it happened. He said he was not really paying attention to the date but that it had been in October. He said he had lain in a bath and he had been slowly pushed in to the water and then held up again. I asked if he or the person performing the ceremony had said anything and he said he did not remember.
I asked if there was anything else he wanted to tell me about his religious practice that he had not yet and he said there was not.
The applicant discussed his fears of returning to China. He said he had not been harmed or discriminated against in China as he was not a Christian then and had not been harmed or discriminated against for any other reason. He said that he now feared returning to China because he was a member of the local church which is considered an evil cult by the Chinese government. He said he feared he would be harassed and may be detained by the government.
RELIGION
3.4 Article 36 of the Constitution of the People’s Republic of China 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. However, the establishment of government-affiliated organisations to regulate and monitor the five officially recognised religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) has, in theory (and, in some circumstances, practice), restricted religious freedom in China.
3.5 Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their 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 Chinese Communist Party to be closely tied to other ethnic, political and security issues.[1]
[1] DFAT Thematic Report Fujian Province, People’s Republic Of China, 16 December 2016

I explained that this information, consistent with other information, might lead me to infer that he could practice his religion as he had described it to me with only a remote chance of him coming to the attention of, or being harmed by the authorities. The applicant responded that the so called freedom the Chinese government gives the religious organisations is only to control them, but that his group is a local church, which is not controlled by the government and the government calls it shouters and an evil group.
I summarised and discussed further information with the applicant:
Unregistered, Underground or ‘House’ Churches
3.10 Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.
3.11 Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.
3.12 Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.
3.13 Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.
3.14 Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.
3.15 Charismatic leaders perceived to be associated with an unregistered church that come to the overt attention of local authorities are sometimes accused of committing offences unrelated to religious practice, such as fraud or corruption.[2]
[2] DFAT Thematic Report Fujian Province, People’s Republic Of China, 16 December 2016
I explained that this information might lead me to infer that he could return and worship as a member of an official or unofficial congregation with only a remote chance of coming to the attention of or being harmed by authorities. The applicant said that there was a report saying they caught a few members of his Church, but the authorities were hiding other reports as they did not want the issue to be in the international news. I explained that there was good reporting of events in China, that the DFAT report I had quoted was compiled from Australian government officials in China who spoke to a range of people about the situation, and so I was not sure I accepted that things are happening and we could not know or find out about that. The applicant said that if this is true why did they keep changing their places, of worship and could not use the same place. He said the reports were saying some leaders were being caught but there were no reports specifically explaining what happened to the followers.
The applicant then reiterated that his local group is an evil group to the Chinese government, they called them shouters because they yell their God’s name.
I discussed further information with the applicant:
The Shouters (Local Church)
3.56 The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are an offshoot of Watchman Nee's Little Flock in China and were led by Nee's student, Changshou Li who called himself, ‘Witness Lee’. Li moved to the United States, where he died in 1997. Li created the Shouters group in the US in 1962, and it was introduced to China in 1979. By 1983 the group had up to 200,000 followers across China. Witness Lee created a ‘Recovery Bible’ by annotating the standard Bible. He believed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times’. Shouters are named for their practice of stamping their feet while shouting as part of their worship.
3.57 The CCP targeted the Shouters in the early 1980s as counter-revolutionary. During the 1980s, the Shouters splintered into several groups including the Church of Almighty God (also known as Eastern Lightning – see below). Both it and the Society of Disciples claimed hundreds of thousands of followers in the 1980s. DFAT is unable to verify the extent to which Shouters are still active in China.[3]
[3] DFAT Country Information Report People’s Republic Of China, 21 December 2017
I explained that this country information indicated that it was doubtful that there were many if nay local church groups still in China, and further that I was not sure that the religious practice he had described to me was consistent with that described for the shouters. The applicant responded that he had not said his Church was called the shouters, this was what the Government called them. I again noted the differences between his description of his religious practice and that described in the material above
He said that he had earlier mentioned sharing, and that everyone shares their insight, and when they did this people will stand up and yell. I noted that he had not described this as part of what had occurred. He said he had said they would drink the cup and eat and share. I asked if he could tell me anything about Witness Lee. He said that he was from Shandong. I noted that if he was a member of a local church and had been going regularly for a year, my understanding was that he would be able to talk with me with some confidence about the teachings of Witness Lee. The applicant said he had not had enough time and if I gave him more time he would study more in the future.
Assessment of claims
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, as stated previously, 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).
I have carefully considered the claims made by the applicant. I found the applicant to be an unreliable witness. On some matters he was able to give evidence with confidence and clarity, but when it came to questions about his claimed faith he was less able to provide clear and straightforward answers and required prompting.
The applicant was able to provide only minimal and general information about his claimed religious practice to the delegate. At the hearing he was able to add some further detail. However, despite having a considerable period to immerse himself in his faith, he was not able to demonstrate more than a very generalised and generic sense of his faith, the reasons for his becoming a Christian, or what his religious practice was or its significance to him. I have grave doubts that the applicant considers himself a Christian or part of a Christian group.
However, given the evidence of his witness, and giving the applicant the benefit of the doubt, I accept that the applicant attends a gathering of people on a more or less weekly basis. I accept that this gathering identifies itself as a Christian group. I accept that the applicant draws some benefit from attending this group.
I accept that the applicant has some knowledge of Christian teachings and the Bible, although as above I found this knowledge to be general and generic, he was able to recount one story from the bible and to repeat several phrases that he identified as prayers. I consider that this is very little detail for someone who claimed to have been attending Church for over a year and to have gone weekly in that time. I find that the applicant’s understanding and knowledge of Christianity is superficial. Again, giving the applicant the benefit of the doubt I accept that he went through a process of Baptism sometime in October 2017. Giving him the benefit of the doubt, I am willing to accept that the applicant engages in practices and has some attachment to Christianity.
I reject the claim that the applicant is a member of the ‘local church’/’shouters’. When describing his religious practice the applicant did not indicate that he prayed in the manner described above in relation to local church members, specifically he did not explain that he cried out the lords name, or stamped his feet when praying. Despite being asked open questions to allow him to explain his faith in as much detail as possible, he did not state or indicate, before being directly asked, that he had any knowledge of Witness Lee or that the teachings of Witness Lee formed any part of his religious practice. Even when prompted he was able to provide no detail about the teachings of Witness Lee, despite claiming to have attended a Local Church for a year and having gone every week. On the basis of his evidence of his practice and demonstration of this practice, I find that this was inconsistent with the information about the practices of the local church and I find that the applicant is not a member of the local church/shouters, nor a follower of Witness Lee. I find that the applicant’s evidence about this aspect of his claims is not credible and unreliable.
I find that what I have accepted of the applicant’s religious practice and his description of the gatherings he has attended fit descriptions of unregistered Protestant or Catholic Churches in China.
As a person who has been attending a Christian gathering reasonably regularly and has been baptised, although has little knowledge of scripture or the teachings of Christ, I am willing to accept that the applicant is a Christian who has worshipped at a low level (meaning that although he attends gatherings, prays and spends time with people there he has not developed more than a superficial understanding of Christianity nor does he engage in any other activities as a Christian). I accept that he may wish to continue worshipping in the same low level manner in the future.
Does the applicant have a well-founded fear of persecution if he returns to China?
As above, I have accepted that the applicant has worshipped in a low level manner in Australia and that his description of his religious practice corresponds to descriptions of unregistered Protestant or Catholic house churches in China. I have found that his claim to be a member of the Local Church/Shouters to not be credible and I reject this aspect of his claim in its entirety.
I find that if the applicant returned to China he may wish to practice as I have found he has done in Australia – that is, attending a gathering once a week, at which he prays, sings and takes communion. On the country information above, I find that he could do this at an unregistered house church in China.
The applicant lived in Fujian before coming to Australia, and his family remain there. The country information indicates that there are many house churches in Fujian, and that people in Fujian are largely free to worship at these churches with little or no official interference. The country information, I find, indicates that low level worshippers, such as I find the applicant to be, would not face more than a remote chance of being harassed, detained or otherwise harmed by the authorities whilst worshipping.
On the basis of these findings, I find that the applicant can return to China, can worship in the way he has been worshipping in Australia, and will not come to any harm. I do not accept, nor did he claim, that he would alter his religious practice on return to China in a way which would increase his risk of harm. I have rejected that he is, and I do not accept he would seek to become, a Local Church/Shouter/follower of Witness Lee. On the country information and my findings I do not accept that the applicant would have to alter or hide his religious practice or expression of his faith in any manner if he returned to Fujian, China, but could continue to worship and practice his faith in the manner he has done for the past year in Australia with only a remote chance of being harmed by the authorities or anyone else.
Therefore, I find that there is no real chance that the applicant will be harassed, detained or otherwise harmed by the authorities or anyone else for reasons of his Christian religion, now or in the reasonably foreseeable future. The applicant did not claim, and there is no evidence to support him fearing harm on any other basis on return.
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).
Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to China?
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]
As detailed above, I have rejected the applicant’s claims to be a member of the Local Church/Shouters. I have accepted that he is a Christian worshipper who practices his faith in a low level manner in Australia and would continue to do so on return to Fujian, China. On the basis of the country information and reasoning above, I find that there is no real risk that the applicant will be harassed, detained or significantly harmed in any way by the authorities or anyone else, now or in the reasonably foreseeable future.
The applicant did not claim that he faced a risk of harm for any other reason or on any other basis on return to China and on the information before me I find that there is not any other basis for a risk of harm to the applicant on return to Fujian, China.
Therefore, I find that there is no real risk that the applicant will be significantly harmed by the authorities or anyone else, if he is returned from Australia to China, now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 1010

26 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice