1722668 (Refugee) - [2023] AATA 3186

1722668 (Refugee) [2023] AATA 3186 (22 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722668
COUNTRY OF REFERENCE:                   China
MEMBER:Louise Nicholls
DATE:22 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 June 2023 at 2:47pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Catholic – member of underground church – arrest and persecution – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of the People’s Republic of China (China) and is [age] years old. She was born in Fujian Province, China. [In] August 2015 she first arrived in Australia travelling on a Chinese passport as the holder of an Australian student guardian visa. She last arrived in Australia [in] July 2016 and has remained in Australia since that date.
The applicant applied for a protection visa on 23 December 2016. She provided a copy of her Chinese passport and a statement setting out her claims. The applicant was invited to attend an interview with the delegate in August 2017 but did not attend.
On 31 August 2017 the delegate of the Minister for Home Affairs refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
This is an application for review of that decision, and it was made on 22 September 2017. The applicant provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant gave evidence about her background, her migration history and her claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complimentary protection.
The relevant law is set out in the attachment.
Background
The applicant is [age] years old and was born in the Fuqing City district, Fujian Province, China. The applicant can speak, read, and write in Mandarin and is of Han ethnicity.
At the Tribunal hearing the applicant stated that her parents were retired and living in Fujian Province. She has one older brother and two sisters. Her brother is living [overseas] and one sister is living in Australia and the other in China. She is married and her husband is living in China. He invested in a [business] in Guangdong some time ago, but that [business] shut down due to the impact of the COVID 19 pandemic. Her husband has returned to Longyan, Fujian and is investing in a [facility]. The couple have one son who is [age] years old. The applicant keeps in contact with her husband in China and they speak about once a week.
The applicant attended primary and junior secondary school in Fujian Province, China. After she left school, she worked for [a] company in Longyan.
Her son came to Australia as a student and is now working for a [company] on a work visa.
Non-disclosure certificate
A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 438 of the Act.
The Tribunal has received a Departmental digital file on which the delegate has placed a non-disclosure certificate pursuant to s.438(1) of the Act. The certificate purports to restrict folios which apply “to the relevant material in file number[deleted]”. The reason given for the restriction of information in certain folios is because they were given to the Department in confidence.
The material in the file relates to the applicant’s son’s application for a student visa.
There are two issues for the Tribunal; one is whether the certificate is a valid certificate, and the other is the nature of the information in the purportedly restricted folios and if the information should be disclosed to the applicant.
In considering the validity of this certificate the Tribunal has taken into account case law on the issue. Documents or information may be subject to a non-disclosure notification if they were given to the Minister or an officer of the Department in circumstances imposing an obligation of confidence.
For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. This means the material needs to have been given to the Minister or departmental officer by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed, and that the information not be public or common knowledge.[1]
[1] See SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42] where the Court considered that, when determining confidentiality, the application of relevant equitable principles concerning the existence of a duty of confidentiality to the facts of the production of a document or matter are relevant. An application for special leave to the High Court was dismissed: SZTYV v MIBP [2018] HCASL 382 (5 December 2018). On this issue the Court, citing Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] 265 ALR 281 at [39]; and Coco v AN Clark (Engineers) Ltd [1969] RPC 41, considered that to be satisfied, the information or matter would need to have the necessary quality of confidence and have been received in circumstances importing an obligation of confidence. The information in question must also be identified with specificity.
The difficulty with the certificate is that it does not identify with any specificity which documents it seeks to restrict. Even if the Tribunal took the view that the certificate validly restricted all the material on the file on the basis that the information was provided to the Department by the applicant’s son who is a third party and would have an expectation that the material is to be treated as confidential, the Tribunal does not consider the material is relevant to the matters under review.
The majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate to the applicant in the review, however, a breach of that obligation will result in jurisdictional error only where the breach is material (that is, the applicant is deprived of the possibility of a successful outcome).[2]
[2] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 (Bell, Gageler, Keane, Gordon and Nettle JJ, 13 February 2019) at [2], [29]-[30] and [45] per Gageler, Keane and Bell JJ.
The Tribunal considers the material in the documents is not relevant to the outcome of the review. The applicant has given evidence that her son applied for a student visa and has completed his studies in Australia. The documents and information covered by the certificate are not relevant to the outcome of the review and the non-disclosure of the certificate has not deprived the applicant of the possibility of a successful outcome.
Country of reference
The applicant claims she was born in Fujian Province, China and is a citizen of China. She provided a copy of her passport which was issued [in] 2007. She has consistently claimed that she is of Chinese nationality, she spoke Mandarin fluently and she was familiar with the geography and culture of Fujian Province.
Taking into account the available evidence, and noting there is no issue as to identity and nationality, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the statement accompanying the application for protection.
The applicant gave oral evidence concerning her claims at the Tribunal hearing held on 27 March 2023.
In her statement the applicant claims if she returns to China, she faces serious harm from Chinese state authorities because she is an underground Catholic. She claims that in 2015 she was arrested at the home of a fellow worshipper in Fujian, taken to the police station and mistreated. She fears she will be harmed for reasons of her religion if she returns to China.
In claims made at the Tribunal hearing, she states that if she returns to China she will not be able to join and attend an underground Catholic church and will be monitored and suppressed.
Assessment of claims
In the statement provided with the application on 23 December 2016 the applicant stated [in] August 2015, she arrived in Australia on a student guardian visa. She claims she cannot return to China as she will be subjected to persecution by the Chinese authorities due to her Roman Catholic religious beliefs.
After she finished middle school, she was employed at [an agency] in Fujian Province from November 1987. After one year, she met her husband who was working in the same [agency]. They married [in] March 1995.
In November 1996, they took over a small [retail] store from a good friend. In 1998, the applicant gave birth to a baby boy. In 1999 the applicant and her husband employed a young woman in their store and the applicant later found out in 2000 that her husband was having a sexual relationship with her. The applicant and her husband separated under the one roof for the sake of their son. They sold their [store] in 2001.
After the applicant saw her husband together with his former girlfriend one day, she was so upset she decided to leave the house with her son and went to live with her parents. Her husband later moved to Guangdong and she and her son returned to their family home.
Around this time the applicant was very unhappy due to the breakdown of her marriage, the obligations of caring for her son and she also became the object of gossip at work. She often felt suicidal.
In September 2013, a new colleague was assigned to her office and because they came from the same hometown, they became good friends. After becoming aware of her situation, her friend advised her not to get divorced with my husband. That was a very strange opinion because all her other colleagues unanimously advised her to get divorced. Later, she realized that her friend was a Catholic.
Her friend told her stories about Jesus. The applicant gradually became aware that Catholicism was a religion which promoted love and forgiveness. Although her friend invited the applicant to go to attend church with her, the applicant wished to know more about the religion before she made the decision. One day in April 2014, she claimed her friend gave her a Bible.
After reading a passage from the Bible on 7 July 2014 she realised that her endless spiritual pain was because she had not forgiven her husband for his conduct. She contacted her friend and who came over and explained the scripture further to her. After that she began to attend church activities on Sundays. At first, she did not understand why they did not go to the large church on the main street, but her friend explained that it was the official church established by the government and it did not acknowledge the head of the church, the Pope.
She gradually understood what she had previously told her about the characteristic nature of Jesus' love and forgiveness. She also tried to forgive her husband and her husband began calling her and caring about her and their son. The rumoured romance about him gradually decreased. Thereafter, she completely believed in Roman Catholicism.
Her son always wished to study abroad. Previously, his father had not agreed, however in October 2014, he suddenly proposed for their son to study abroad in Australia. She also applied for an Australian visa as his guardian.
She was baptized and confirmed [in] April 2015. After believing in God, she did not have many worries because she let Jesus take control of everything.
On the morning of 24 May 2015, the applicant and her friend went to attend a praying activity in a church friend's home at a local village. There were about [number] church friends attending. She claimed that at about 8am, more than 10 police came suddenly and surrounded their gathering place. They were pushed into police vehicles and taken to [the] police station. Upon arrival at the police station, because the police vehicle was crowded and she was getting off too slowly, she was dragged down by police. She lost her balance and fell over onto the rough concrete ground. There were cuts around her right elbow, which caused bleeding and her right ankle was twisted. The police kicked her and forced her to rise. She sustained bleeding and a swollen ankle.
Two male police officers questioned her. They did not allow her to sit down. They asked her who was the leader of the underground church, where they were holding the underground church activities and the whereabouts of their priest. She was very frightened and did not answer their questions. Police continuously questioned her while she was injured and continued to slap her, kicked her in the legs and grabbed her by the hair. She was fearful and prayed silently to God to give her strength and to offer her peace. Other police came to stop the abuse. Then they locked her up in a very small cell without lights.
Her father-in-law had a friend working at the Public Security Bureau and as a result she was released in the afternoon. When she was released, the police threatened her not to participate in the underground church anymore. After she was released, she went to a nearby clinic to receive medical treatments for her elbow and ankle.
When she returned home, her father-in-law said to her that his friend was able to get her out on that occasion only because it was first time she was detained. If she were detained in the future or he was not around, it was hard to say whether she could be bailed out again.
[In] August 2015, she arrived in Australia with her son.
Since she came to Australia, she has been attending the [Church] activities in [named] Catholic Church in [Suburb 1]. She appreciates that she can practice her faith in Australia freely.
She is afraid of the monitoring and suppression from Chinese authorities because she had already been detained once in China. She will not attend the China's official church because she only believes in the one Holy Catholic church passed down from the apostles.
The applicant gave oral evidence at the Tribunal hearing on 23 March 2023. The applicant gave evidence she came to Australia as the holder of a student guardian visa in 2015. She travelled to China for a visit in 2016 and returned to Australia [in] July 2016. Her student guardian visa ceased on 31 December 2016. The Tribunal asked the applicant why she did not return to China when her visa ceased. She claimed she was scared to return to China because she feared the local authorities in her area.
The applicant claimed she feared returning to China because she had been arrested in May 2015 after attending Mass in China. She claimed she was a Catholic and local authorities wanted to force her to attend the official registered Catholic Church.
Was the applicant a member of an underground Catholic Church in China?
When asked how she became a Catholic she stated that her husband had an affair in 2013. Friends and colleagues gave her different advice as to what to do and one of her friends told her a story about Jesus. One colleague told her not to give up and not to get a divorce. She claimed her colleagues told her about the love and forgiveness of Jesus and her friend gave her a Bible to read and told her she might learn something from that.
The Tribunal put it to her that it was not usual for Catholics to read the Bible themselves, part of their religious practice is that the priest gives a sermon and explains the Bible to the congregation. The applicant agreed and stated that the Bible is taught by the priest, and the Vatican teaches about the love and forgiveness of God.
When asked why, in these circumstances, she would be given a Bible to read by a fellow Catholic, she stated that she did not know but in April 2014 her friend secretly passed her a Bible and told her to read it because there was a lot in it about love and forgiveness.
She confirmed she had been given a Chinese language Bible and when asked what parts she had read she initially referred to Matthew. She stated she had read some parts of the Bible and other parts she did not read because she did not fully understand. She stated that the Bible is organised in different chapters, and she found it easier to understand the gospels of Matthew Luke and Mark who were disciples of Jesus.
She stated that from 2015 she also attended Mass, shared stories, visited the sick and elderly and did the Eucharist. When asked what she meant when she stated she did the Eucharist, she stated Jesus was crucified and suffered the sins of other people and we need to know what he suffered and that is why we worship him. She stated we have to be baptised then confirmed, accept the holy bread and do penance for sins and have matrimony.
She claimed that the group to which she belonged was not a church but a gathering of Catholic brothers and sisters. They did not have a priest, but one visited once every two to three months and conducted Mass.
The applicant claimed she was baptised in China [in] April 2015. She described the baptism ceremony.
The Tribunal doubts that the applicant became a Catholic in China as claimed. Her account of how she became a Catholic was vague and limited. Her knowledge of basic doctrines seemed confused. While the Tribunal accepts that the applicant is now familiar with some Catholic concepts and practices it considers that she has become familiar with Catholic practices due to her attendance at the Chinese Catholic Church in Australia. However, the Tribunal considers that it could be possibly be true that the applicant joined a Catholic congregation in China in 2015 before she departed China for Australia.
Had the applicant been mistreated by Chinese authorities for reasons of her membership of an underground Catholic Church in China?
When asked whether anything happened to her in China as a result of her activities, she claimed that on 24 May 2015 she and her friend went to a brother or sisters place for Mass. She said that 24 May was a special day when people prayed for Catholics in China. Around 8am police turned up in a number of cars and took them to the local police station. The police took her name and details. She claimed about [number] people were arrested and police had several cars. She claimed they had been praying when they were arrested. The Tribunal put it to her that [number] people gathered was a lot for one house. She claimed the house had a large room with a long table.
The police drove her in a car and when she was getting out, she was pushed and fell on the ground, and she hurt her feet and hands. When she could not get up, she was kicked and told to stand up to go to the interrogation room. Two policemen asked her questions about the church, but she did not answer as she was scared. One of the policemen slapped her and kicked her; he also patted her shoulder and touched her on the breast. She pushed him away and he got blood on his uniform, and he grabbed her hair and slapped her face. Eventually another policeman came and took her to a dark room.

She claimed that her father-in-law called a friend in the police station and had her released. She stated she then went to a clinic where they sanitised her hands and put a cold compress on her feet. She claimed her father-in-law told her that he could only get her out of detention this time and there was no guarantee he could get her out in the future. When asked how her father-in-law knew she had been detained she stated she did not know and she did not ask him. The Tribunal does not accept this evidence.
The Tribunal put it to her that authorities in Fujian Province have traditionally been generally tolerant of Christianity and the Catholic religion and there were many Catholic churches[3]. She agreed but claimed the underground Catholic church was not accepted.
[3] DFAT Country Information Report China 22 December 2021 p.3.38; DFAT Thematic Report Fujian Province, Department of Foreign Affairs and Trade (DFAT), 16 December 2016,
The Tribunal does not accept the applicant was mistreated as claimed because she was a member of an underground Catholic church in China. She claimed that her father-in-law arranged her release but did not explain how he knew that she had been detained. At that time, according to the applicant, her husband was in Guangdong. Her account of events was reasonably detailed, but she was unable to give evidence of contextual matters surrounding the claimed incident and it appeared to the Tribunal that the applicant’s account of the incident in May 2015 was rehearsed. Further she did not explain whether there was any follow up to the detention, what happened to other members of the group and whether the church group kept meeting.
Was the applicant able to leave China without restriction?
The applicant was asked why she left China. She stated that she and her husband had a difficult time due to his earlier affair. As a result, they had separated and, in any event, he moved to Guangdong to operate a [business]. Her son wanted to study overseas and in October 2014 her husband proposed to send the applicant and her son to another country for her son to study. She joined the church in 2015 but since her arrest she worried that she was being monitored.
Her husband contacted an agent to arrange a student visa and they provided financial and educational documents to support the visa applications for herself and her son. She also provided a police certificate which stated that neither she nor her son had been charged or convicted of any offences. She claimed that in China unless you are convicted of a serious crime like murder or arson your case is not included in the official records. The Tribunal put it to her that this was not consistent with country information on China which indicated that the Chinese government authorities have a comprehensive knowledge of all citizens’ activities including the reasons for any detention such as attending an illegal gathering.
She stated it was a small town and her father-in-law asked his friend to give her one more chance. She stated that they may not have put her name into the computer system.
The Tribunal put it to the applicant that she left China and arrived in Sydney in August 2015. She left without restriction which suggests her name was not on a database at the airport when she left China. She stated that when they left China, they went to Fuqing for a few days. The Tribunal discussed country information that the Chinese government has a database called the Golden Shield which holds a significant amount of identity and criminal information. The database can be accessed at the airport and Chinese citizens have to go through the system when they leave China. The Chinese government has a large amount of information on all citizens. The Tribunal put it to the applicant there was no reason to hide in Fuqing because if she was wanted or of adverse interest she would have been picked up at the airport. She stated that as a member of the underground Catholic Church, she wanted to be on the safe side.
The applicant and her son returned to China for a visit in 2016. They went to see her mother as her father had passed away while they were in Australia. Her mother passed away in August 2017.
The Tribunal put it to the applicant that nothing had happened to her during that visit. She stated they were hiding at her mother’s place and did not go back to her home in Longyan. The applicant agreed that she had no problems at the airport when she left China or when she returned for a visit in 2016. The Tribunal put it to her that If this was the case, there was no need to hide; she stated she was just being careful.
The country information regarding the Chinese authorities’ ability to monitor citizens indicates that the Chinese government’s monitoring and collection of information is comprehensive. This includes monitoring of arrivals and departures at international airports. Information obtained by the Immigration and Review Board of Canada (Canadian IRB) from the Counsellor of the Embassy of the People’s Republic of China in Ottawa indicates that ‘Information on passports and exit and entry’ is one of the databases of the Golden Shield. The Golden Shield is comprised of eight databases, including databases on population information, mainly the information on citizen identity, as well as databases on criminal record information and on criminal fugitive information. Police are in charge of exit and entry administration and can connect to the system at all ports of entry, including international airports.[4] The Department of Foreign Affairs and Trade (DFAT) stated in 2015 : […] China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.[5]
[4] Immigration and Refugee Board of Canada 2009, CHN103133.E: China: Whether the Public Security Bureau (PSB) has set up a national computer network for information sharing, 2 July
[5] DFAT Country Information Report China 3 March 2015
The Tribunal finds that the applicant was able to leave China without restriction in August 2015 despite claiming to have been detained and having her name taken by police earlier in 2015. She was also able to return to China for a visit in 2016 and had no difficulties in arriving or departing through an international Chinese airport. This is consistent with the Tribunal’s finding that the applicant had not been detained or mistreated for reasons of her membership of an underground Catholic Church in 2015 and was of no adverse interest to Chinese authorities.
Has the applicant been attending a Catholic Church in Sydney?
The applicant gave evidence that when she and her son arrived in Sydney a friend helped them to settle in. Her friend helped with her son’s school and accommodation. Her son first attended a language course, then high school and then completed a [degree]. He has also completed a master’s degree at [University]. Her son was initially renting a place near the university and is now living with his girlfriend in a place near his work.
The applicant has been working [in] Australia.
The applicant claimed she has been regularly attending the Chinese Catholic Church [in] [Suburb 1] since September 2015. She claimed that she attended Mass, read the Bible and engaged in voluntary work. She described what happens during Mass and stated that sometimes after Mass she would engage in other church activities. She stated that there are three priests who regularly preside on Sundays, but she did not think to ask them to give evidence or provide support for her evidence before the Tribunal. She had not told them she applied for protection.
She applied for protection in 2017. A church friend told her about protection visas and helped fill out her application in English and helped with her statement.
The Tribunal asked the applicant what she feared would happen to her if she returned to China. She stated if she returns to China, she is afraid she will not be able to attend an underground church and she will either be fined or forced to give up her religion or join the official Catholic Church.
Her son is not a Catholic and told her he was not interested in attending church with her.
The Tribunal put it to the applicant that in 2018 the Chinese government entered an agreement with the Roman Catholic Church in which the Chinese government agreed to accept bishops of the underground church as bishops of the official Catholic Church. The applicant stated the official Catholic Church is censored and approved whereas the underground church’s true leaders are decided by Vatican City.
The Tribunal accepts that the applicant has been attending services at the Chinese Catholic Church at [Suburb 1].
Delay in seeking protection.
The Tribunal asked the applicant why she had delayed making an application for protection for 1 and half years. She stated that at the time she arrived she did not know such a thing as a refugee visa existed and when she started attending church a member told her about refugee visas. The Tribunal put it to her that she stated she had started attending church in 2015. She stated that at first, she was too shy to talk to other people but later she started talking to people and a member of the church asked her what visa she was on and told her about refugee visas.
The Tribunal put it to the applicant that when she first arrived, she had a temporary student guardian visa and must have thought about what would happen when that visa ceased. She said that her visa was due to cease in late 2016 and around that time her church friend suggested she apply for a refugee visa so that she did not have to return to China.
The Tribunal noted that the Chinese media in Australia had many advertisements about migration services and advice and asked the applicant why she did not seek advice about her options after she arrived. She stated she did not think about that or notice the advertisements. The first thing she looked for was an underground Catholic Church. The Tribunal told her it had some difficulties with that evidence.
At the end of the hearing the Tribunal referred again to country information on the Chinese government’s 2018 agreement with the Roman Catholic Church and the comprehensive system of state monitoring. The Tribunal also told the applicant it continued to be troubled by the length of time she took to claim protection.
When invited to make any final remarks she stated she needed permission to work as life had been difficult during COVID and inflation made it hard for her to save money for her retirement. Whether she stays in Australia or returns to China, she will leave it in God’s hands.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future she faces a real chance of persecution for reasons of her religion.
The Tribunal accepts that the applicant may have attended an underground Catholic church group in China prior to her departing China for Australia. For reasons set out above the Tribunal does not accept that the applicant was mistreated or detained for reasons of her membership of this group before she left China.
The Tribunal accepts that the applicant has attended a Catholic Church in Australia for reasons set out above.
The Tribunal has considered whether the applicant faces a real chance of serious harm if she returns to China now or in the foreseeable future.
The applicant stated at the hearing that she fears she will not be able to practice her religion as a member of the underground Catholic Church in China if she returns.
She did not specifically claim at hearing that she feared serious harm from Chinese authorities for reasons of her religious practice in China or in Australia. However, the Tribunal has considered whether she would face serious harm for either of these reasons.
The Tribunal has considered, but does not accept, she will face harm from local authorities for reasons of her previous attendance at an underground Catholic church in Fujian Province if she returns to her home in China. Even though she did not actively pursue this claim at hearing her original written statement included this claim. The Tribunal finds that the applicant departed China without any restriction and returned for a visit in 2016. The applicant also gave evidence she obtained a certificate from the police in China indicating that she had no criminal convictions at the time her visa application was lodged. If the applicant had been of adverse interest to Chinese authorities the Tribunal considers she would have been questioned and possibly detained at or around the time she passed through the airport in 2015 or 2016. Further she would not have been able to obtain a police certificate to satisfy her Australian visa requirements.
The Tribunal does not accept that the applicant will face harm for reasons of her attendance at a Catholic church in Australia if she returns to China. The Chinese government recognises the official Catholic Church in China and there is no evidence that attendance at a church in Australia would, on its own, put an attendee at risk of harm if they returned to China now or in the foreseeable future.
With respect to her claim that she would not be able to attend an underground Catholic Church if she returned to China the Tribunal has considered country information on the situation for Catholics in China.
The applicant stated she would not attend an official Catholic Church as it was controlled by the Chinese government and not by the head of the Roman Catholic Church in the Vatican. However, the Tribunal notes that the Chinese government and the Roman Catholic entered into an agreement in 2018 in which the Church agreed to regularise some Chinese appointed bishops.
The DFAT report suggests that local congregations will follow their local leadership but that there are some underground Catholics who may be subject to restrictions. However, the country information indicates that leaders of the underground church will be more likely to face adverse government attention than congregants.
The latest DFAT report notes
3.22 China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture…..
….
3.28 Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.
….
3.37 In 2018, the Vatican and Beijing signed an agreement that would regularise the status of some Chinese-appointed bishops so they would be viewed as valid by the Vatican. In return, those ‘underground’ Catholic churches would join the CCPA. Most of the details of the deal are not known. The deal was extended in October 2020 for a further two years, allowing for more bishops to be recognised.
3.38 In spite of the deal, reports of a crackdown on Catholics as part of a wider campaign to sinicise religion continue. Underground priests who were demoted from the position of bishop as part of the deal are pressured to join the CCPA, according to various media reports. Some media reports say that underground priests had experienced torture and disappearance if they resisted. Fujian, a traditional stronghold for Catholicism and underground Catholicism in particular, has seen particular efforts to convert underground bishops.
3.39 The numbers of CCPA versus underground Catholics are not clear. Cardinal Zen, formerly Archbishop of Hong Kong and a vocal critic of the Chinese Government, has claimed in media reports the ‘underground community’ has ‘practically disappeared’ because of pressure on underground bishops. DFAT is unable to verify this claim.
3.40 DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination.
The United Kingdom Home Office report on Christians in China[6] published in November 2019 referred to a country guidance case of “QH (Christians – risk) (China) CG heard on 6 June 2013 and promulgated March 2014 in which the Upper Tribunal found that: • ‘In general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible…There has been a rapid growth in numbers of Christians in China, both in the three state-registered churches and the unregistered or ‘house’ churches. Individuals move freely between State-registered churches and the unregistered churches, according to their preferences as to worship.’ (para 137 (1 and 2))
[6] UK Home Office China Christians November 2019 pps 2.4.3, 2.4.5
With regard to unregistered or house churches the Upper Tribunal found: • ‘In general, the evidence is that the many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do.’ (para 137 (4i)) Page 7 of 31 • ‘The evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach of fundamental human rights for unregistered churches or their worshippers.’ (para 137 (4ii)). • ‘…in general, any adverse treatment of Christian communities by the Chinese authorities is confined to closing down church buildings where planning permission has not been obtained for use as a church, and/or preventing or interrupting unauthorised public worship or demonstrations’ (para 137 (4iii)). • There may be a risk of persecution, serious harm, or ill-treatment engaging international protection for certain individual Christians who choose to worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views (para 137 (4iv) of the determination).”
The applicant has described herself as a committed adherent of the underground Catholic Church in China and would not attend an official Catholic Church if she returned to China. However, the Tribunal does not accept this characterisation of herself or her claim.
Firstly, the applicant did not apply for protection until her student guardian visa was about to expire at the end of 2016 and the Tribunal does not accept her explanation for the delay between her arrival and her application.
Secondly, while the Tribunal does accept that she has attended [named] Catholic Church in Sydney the evidence she gave regarding the regularity of her attendance and participation in other activities was vague and expressed at a level of generality. She did not provide evidence from any church friends or officials relating to the regularity of attendance or participation.

100. The Tribunal does not accept that if the applicant returned to China that she would not attend an official Catholic Church. The Roman Catholic Church has entered into an agreement with the Chinese government to try to overcome problems for Catholic adherents in China and has indicated that it accepts that it is legitimate for Catholics to attend the official church.

101. Even if the applicant decided to attend an underground Catholic church, the Tribunal does not accept there is a real chance, she would face serious harm for reasons of her attendance. The country information indicates that leaders of the church are those most likely to attract adverse attention rather than ordinary congregants. Restrictions on congregants appear to amount to removals of crosses, demolition of church buildings or placing restrictions on attendance.
102. The applicant’s final remarks regarding her request for permission to work so that she can save for her retirement supports the Tribunal’s finding that she does not fear returning to China for reasons of religion, but rather that she wants to continue to remain in Australia to improve her financial circumstances.
103. Accordingly, and for the reasons set out above the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in section 5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
104. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.
105. The Tribunal has accepted that the applicant may have been a member of an underground Catholic congregation in China and that she has attended a Roman Catholic church in Australia. It does not accept that she has faced mistreatment as a result of her religion or for any other reason.
106. The Tribunal does not consider that the applicant has been charged or convicted of any criminal offence in China or engaged in any activity which might put her at risk of suffering serious harm if she returned to China.
107. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk she will be arbitrarily deprived of her life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
108. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

111. The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls
Senior Member

ATTACHMENT
Criteria for a protection visa
112. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
113. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

115. 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

117. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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