1723896 (Refugee)

1723896 (Refugee) [2021] AATA 4373 (19 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723896
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Booth
DATE:19 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 19 August 2021 at 2:24pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Catholic – credibility concerns – no witness or corroborative documents – delay in leaving China – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL [2012] FCAFC 147
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 and Border Protection on 22 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 18 August 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
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 (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.
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) of the Act. 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) of the Act, 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–5LA of the Act, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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.
“Significant harm” for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, and “torture”, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Pursuant to s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC, which held that whether relocation is reasonable, in the sense of “practicable”, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.
Pursuant to s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a “real risk”: MIAC v MZYYL [2012] FCAFC 147.
Pursuant to s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicant’s protection visa application as follows.
The first applicant is a [age]-year-old male, born on [date] in Heng Shui City, Hebei Province, China. The application also includes his wife, a [age]-year-old female, born on [date] in Heibei Province, China, as a member of the family unit who does not raise her own claims for protection.
The applicants can speak, read and write Mandarin.
The applicants stated they are of the Han ethnicity and Christian faith.
The applicant claims to have Chinese citizenship by birth and a copy of his passport, held upon the Department file, confirms that he is a citizen of China.
The applicant claims that he has been married [since] February 2012.
The first applicant recorded completing High School in China and working as an [Occupation 1] in China.
In summary, the applicant claims that he fears persecution due to his faith.
Migration history
The applicants arrived in Australia [in] December 2013 on a student visa.
The applicants’ visa was cancelled on 4 June 2015 and the cancellation was affirmed by the Tribunal on 12 July 2016.
On 16 August 2016 the applicants applied for ministerial intervention.
The applicants applied for a XA-866 Protection visa on 18 August 2016.
CLAIMS
866 visa application
The applicant’s claims for protection are contained in the first applicant’s protection visa application and attached statement. A Department interview was conducted on 15 August 2017. The claims submitted were as follows:
I am seeking protection in Australia so that I do not have to go back to
China
Why did you leave that country?
My name is [the first-named applicant]. My wife is [the second-named applicant]. We are very devout Christians. We have a firm belief of the doctrine and life proud of it, influenced by our parents. I began very early believers, hoping to forever free to follow Jesus Christ. To serve my Lord. But in China our faith is not only not respected but continuously hampered with the Chinese government’s behaviour! My Mum and Dad want us to stay in Australia the Australian government to get protection and support the freedom to believe my God.
Have you experienced harm in that country?
Applicant selected ‘yes’.
Give details:
Since then, we began to take part in frequently the house Church activities, many relatives and friends. As well as parents praise the Lord, love our Lord. However with the expansion of our activities influence, have been around a lot of friends to attend our influence among the ranks of the church family, but we did not expect normal religious activities has been strong opposition and obstruction of local government and public security organs, we remember once after the church activity was suddenly surrounded and intimidated the public security organs, everyone panicked, police officers think we are illegal believers so should take us away immediately one by one onto the car. Some person did not want to enter the car, they take a direct stick beatings many people are scared to panic the scene was very terrible. Police officers electric power stick our body! Still do not believe that the police would do something like that.
What do you fear may happen to you if you go back to that country?
We live very hard. Have been disrupted by the Chinese government and public security opportunities, and worse things happened, because the belong unrepentant molecules. Because we intransigence angered police officers and local government so give us a pepper irrigation water, yard run around naked at night, forcing us to jump machine dance, This is a complete violation of human rights and finally, we are unable to cope and almost fainted! We frequently replacing the church place, to avoid tracing public security opportunities. We at the party were arrested by the local public security organs. I was detained for 15 days in prison and labelled as a concussion, Bad news one after another hit to tured big.
Have you experienced harm in that country?
The next few years of life, we live very hard, have been disrupted by the Chinese government and public security opportunities, and worse things happened, because the family church, we are the fifth police to trace, because we belong unrepentant molecules, because we intransigence, angered police officers and local government, so give us a pepper irrigation water, yard run around naked at night, forcing us to jump machine dance, this is a complete violation of human rights, and finally, we are unable to cope, and almost fainted.
What do you fear may happen to you if you go back to that country?
We came to Australia, our family and friends are very happy for me, but they have been worried that if one day we go back to China the local government will be traced again, every month looking for our parents and our relatives and friends to inquire about where are we . our mother told us that the local police have been traced in our whereabouts, said we were a house church leader to be exterminated, and so much persuasion we should never back to China . no less than the aircraft we will be caught up in the local government staff.
Who do you think may harm/mistreat you if you go back?
In the following days, we have been tossing by the public security organs, because we took part in the family church activities and finally we know that if we want unfettered freedom in China believe in our Lord, believe in Jesus, it is impossible, but we had heard that in foreign countries are free to believe in the Lord, there are very equal and harmonious, respect everyone’s belief.
Why do you think this will happen to you if you go back?
We came to Australia, our family and friends are very happy for me, but they have been worried that if one day we go back to China the local government will be traced again, every month looking for our parents and our relatives and friends to inquire about where are we . our mother told us that the local police have been traced in our whereabouts, said we were a house church leader to be exterminated, and so much persuasion we should never back to China . no less than the aircraft we will be caught up in the local government staff.
Do you think the authorities of that country can and will protect you if you go back?
Applicant selected ‘no’.
The Chinese book said :the people’s police love the people, but this experiences made me thought the people’s police so cruel means memories of the days in detention, and is a nightmare! there have been dehumanized, national freedom, equality, democracy, the Chinese government advocated, actually treats his people. Probably because we come from small town, it is not a big city, so it is no democracy at all. I remember ten of us were locked in dark room is less than 10 square meters house, no toilet, no food to eat, we can only defecating and urinating in the house, the house stink to high heaven. Since then, instead it reinforces our determination to embrace Jesus. But anyway, our family will not yield, we must master the life of faith, believe in Jesus!
EVIDENCE AND SUBMISSIONS
The applicant has not provided submissions to the Tribunal or the Department.
The applicant provided the following to the Department:
a)Statement signed by the applicants:
Statement
My name is [the first-named applicant] ([DOB]) was born in China's Hebei Province. My wife is [the second-named applicant] ([DOB]) was born in Hebei Province , China ,and we are very devout Christians, we have a firm belief of the doctrine and life proud of it. influenced by my parents, I began very early believers, hoping to forever free to follow Jesus Christ, to serve my Lord. But in China, our faith is not only not respected, but continuously hampered by forcing the local government, so we are very disappointed with the Chinese government's behavior! my Mum and Dad wanted us to stay in the land of Australia, the Australian government to get protection and support, the freedom to believe in my God.
We think life have faith, you can not just believe in a life of luxury and material, but the Chinese people's values have a big problem, when we graduated from high school, a lot of people are looking for the high salary job, but we just want to do some things that contribute to society, money does not matter, we did our parents faith the Lord, and pray God to give me a peaceful life, and become a good person. But the Chinese government always stop our parents to religious, we puzzled, but finally introduced by a friend [Friend A] and chaired by [Pastor B], in 2009, we accepted the formal Christian baptism, our family have become true Christians!
Since then, we began to take part in frequently the house church activities. Many relatives and friends, as well as parents praise the Lord, love our Lord. However, with the expansion of our activities influence, have been around a lot of friends to attend our influence among the ranks of the church family, but we did not expect normal religious activities has been strong opposition and obstruction of local government and public security organs I remember once after the church activities was suddenly surrounded and intimidated the public security organs, everyone panicked, police officers think we are illegal believers so should take us away immediately, one by one onto the car, some person did not want to enter car, they take a direct stick beatings, many people are scared to panic, the scene was very terror, chaos, police officers electric power stick our body, we still do not believe that the police would do something like that.
The Chinese book said :the people' s police love the people. but this experiences made me thought the people's police so cruel means memories of the days in detention, and is a nightmare! there have been dehumanized, national freedom, equality, democracy, the Chinese government advocated, actually treats his people. Probably because we come from small town, it is not a big city, so it is no democracy at all. I remember ten of us were locked in dark room is less than 10 square meters house, no toilet, no food to eat, we can only defecating and urinating in the house, the house stink to high heaven Since then, instead it reinforces our determination to embrace Jesus But anyway, our family will not yield, we must master the life of faith, believe in Jesus!
Experienced that thing, we found that we became more independent of the strong, the heart becomes stronger, we are very disappointed with the government, also we saw a bad thing, but we became the organizer of the participants by the Church Location, churches continue to do family activities, but we will constantly changing places, and police fought running battles. During those years, we became the Public Security Bureau of the guest of honor, often three-three, to be educated, beaten, but for the Lord, love for Jesus firmer and longing! It never changes.
The next few years of life, we live very hard, have been disrupted by the Chinese government and public security opportunities, and Worse things happened, because the family church, we are the fifth police to trace, because we belong unrepentant molecules because we intransigence, angered police officers and local government, so give us a pepper irrigation water, yard run around naked at night, forcing us to jump machine dance, this is a complete violation of human rights, and finally, we are unable to cope, and almost fainted!
However, we will continue to believe in the Lord Jesus, the reality of sorrow not overwhelm me, because I know that the Lord has been with me, he will bless me, and after a few strikes, we believe more determined commitment to Christ, we frequently Replacing the church place, to avoid tracing public security opportunities, we were at the party were arrested by the local public security organs, we were detained for 15 days in prison and labeled as a concussion. bad news one after another hit me, tortured me, but we have always believed the Lord is protected, we love the Lord!
In the following days, we have been tossing by the public security organs, because we took part in the family church activities and finally we know that if we want unfettered freedom in China believe in our Lord, believe in Jesus, it is impossible, but we had heard that in foreign countries are free to believe in the Lord, there are very equal and harmonious, respect everyone's belief, don't need hiding every day, so we are really looking forward to one day be able to go there.
So, we made a decision, [in Dec] 2013 we came to Melbourne, Australia. Here, we find here are full of Chinese Church, full of love, believers went to church every Saturday and Sunday to pray, sing hymns loud, sing to our Lord! and then the government is to support church activities, we no longer have faith in hiding to my Lord, love equality here has been really reflect, we feel like we are really dead rest in peace here.
We came to Australia, our family and friends are very happy for me, but they have been worried that if one day we go back to China the local government will be traced again, every month looking for our parents and our relatives and friends to inquire about where are we. our mother told us that the local police have been traced in our whereabouts, said we were a house church leader to be exterminated, and so much persuasion we should never back to China. no less than the aircraft we will be caught up in the local government staff.
So our heart very scared, our idea is really very simple, as a believer in freedom of Christ, and my Lord together, and these days we were in Australia and the main with the most quiet time, without force, no violence , we can calm, peaceful believe my Lord, we hope the Australian government to protect us, let us freely profess my Lord, we therefore in Australia to apply for a protection visa, we would like to be able to Australia this land on his life worship my Lord, and my God is always stay with me!

In summary the applicant’s claims are:
a)The applicant was born into a Christian family and was later baptised in 2009.
b)Since baptism they have taken part in house church activities.
c)Police have detained them in squalid conditions, beaten them and tortured them.
d)They decided to come to Australia [in] December 2013.
e)Every month authorities look for their parents. Their mother told them that the local police have traced their location and say they are leaders of the house church to be exterminated.
The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows.
The applicant confirmed that, in summary, the basis for his claim for protection in Australia was that he left China due to his religious beliefs. When asked if he made any claim for protection in Australia on any other basis he responded, “there is another reason because Australia is well developed country and economy is much better, therefore I would like to stay in Australia”. The Tribunal asked the applicant which was the more important reason for wanting to stay in Australia. He responded, “life is easier and beautiful environment, that is most important reason”.
The Tribunal asked the applicant to confirm his relationship with the second applicant. He responded, “we are a couple, husband-and-wife”. When asked if they were married he said, “yes”. When asked when that occurred he said, “in 2011”. When asked where the marriage occurred he said, “in China”.
The Tribunal asked the applicant why he left China and now claimed protection in Australia. The applicant responded as follows: “because I am a Christian I follow my religious beliefs in China, some people may treat me differently, that is all”. When asked whether he wanted to add anything to his application for review he said, “no”.
The Tribunal proceeded to ask the applicant some questions, the substance of which and his responses were as follows.
The Tribunal observed that the applicant had stated he was a Christian and asked what doctrine of Christianity he followed. He said, “I often attend the church.” When asked what branch of Christianity he spelled “[Suburb 1]”. When the question was repeated said, “Catholic”. He was asked to confirm this; he said, “yes I am a Christian”. The Tribunal put to him that he contended he was a Catholic Christian. He replied, “yes”. When asked whether he attended the Catholic Church in China, he said, “yes but not openly, in China Catholic are treated differently so no opening followers”. The Tribunal asked the applicant why he had not attended one of the authorised Catholic Churches in China. He replied, “there is no government authorised Catholic Church nearby”. The Tribunal put to him that the country information suggested that Catholicism is one of the authorised religions in China and invited the applicant to comment. He said, “first when I came to Australia and had no idea Catholics were legal, second in my area it was not legal”. He was asked to expand upon the second point. He said, “in our local area there is no Catholic Church”. The Tribunal observed that the applicant had first stated that the Catholic Church was not legal in China and now stated that there was no Catholic Church in his area. He was invited to explain. He said, “because not legal locally, there is no church”. It is asked what authorised Christian churches were in his area. He said, “there is no church, any Catholic Church or Christian church available in local area, just some followers”.
It was asked when he started attending the Catholic church in China, he said, “very long time ago, about 10 years ago”. He was asked how old he was started attending the Catholic church in China. He said, “[age] or [age]-ish”. He was asked how often he attended the church in China. He said, “going about once a week, not the church, we had at least one gathering each week”. He was asked where he carried out these activities. He said, “at friends, and our follower house”. When asked whether these activities were carried on publicly or in secret he said, “privately in secret, couldn’t do it publicly”. He was asked why he could not carry out his religion in public. He said, “because in our neighbourhood, 99% of people they were not followers, once they knew what we were doing we would be treated differently, we tried to keep it secret, once they found out they would report us to authorities, then authorities would try and break up a gathering, also we would be arrested and detained, if we didn’t cooperate in interrogation they wouldn’t give us food and also lock us up”.
The Tribunal asked the applicant whether he was fearful of persecution because of his religious beliefs while he was in China. He responded, “of course”. He was asked whether this fear of persecution persisted until the time he left China. He said, “yes”. The Tribunal asked the applicant whether he was harmed or threatened with harm because of his religious beliefs when he was in China. He replied, “yes happened to me in China”. He was invited to give any details. He responded, “once we had a gathering so neighbours found out, reported us, we were taken back, authorities were trying to break up a gathering, they interrogated us, we help protect, and then there were interrogated separately, they told us”. The Tribunal observed that he had referred to “us” and he was asked to explain what, if anything, had happened to him. He said, “yes”. He did not elaborate. The Tribunal observed that his response was vague and invited him to give details. He said, “that is my experience, that is why I apply for protection”. The Tribunal asked the applicant whether he wanted to say anything else about this instance of being interrogated. He said, “also after being in China for many years I got used to Australia last own environment, so I am asking the delegate to grant me the visa”. The Tribunal observed this evidence was vague and again invited him to give details of the instance of persecution to which he had referred. He responded, “you asking details, does that mean I must give all details of what happened”. The Tribunal informed the applicant that if he did not explain what happened, then the Tribunal would not know. He responded, “once we had a gathering, and neighbours reported, and I was taken to government lock-up, I was interrogated separately, I was told by the officer not to attend or hold gathering like this any more in future or I will be put in jail. Obviously I wouldn’t obey that, so they took out the whip and assaulted me, that officer kept using the whip amusingly, I tried so hard to hold on until he got tired and was chucked in single cell, cold and helpless so I started praying, to the Lord to rescue me, I was locked up in that cell for two-day and tonight, so I made my decision while in that cell”. The Tribunal asked the applicant when this event had occurred. He said, “six months after I became a Christian”. The Tribunal observed his response was vague and unhelpful. He replied, “I really can’t remember the actual time”. The Tribunal observed that he was asserting that he had been detained, whipped, and held in the cell for two days and that he did not remember when it happened. He replied, “I can only remember in May, can’t remember date”. The Tribunal asked what year he was referring to. He replied “2011”.
The Tribunal asked whether this was the only instance in which the applicant had been harmed or detained. He said, “that is one of several times”. He was invited to give evidence about the other occasions. He replied, “about every time, when I got detained when we got arrested would be similar”. He did not elaborate. He was again invited to provide details of the other occasions. He said, “about each time what happened, in the past that happened too many times I don’t want to talk about it, I release what happened in past”. He did not elaborate. The Tribunal observed this response was vague and invited him to comment. He said, “every single time when you recall something happen in past will be different, that is what I experience and I have told the truth”. He did not elaborate.
The Tribunal asked the applicant why he had no witness or document to corroborate his assertions of his involvement in Christianity and of the detentions and assaults in China. He replied, “because when we have our gathering we are friends, there is no need to have any document and also back then no document available”.
The Tribunal asked the applicant whether the event of May 2011 was the reason why he had left China. He replied, “yes that is one incident”. The Tribunal observed that he asserted that he had been detained for two days and two nights, and on that basis he had made a decision to leave China. He responded, “correct but it took time for me to get passport and get visa, during that proceeding was arrested, beaten up many times so I decided to leave China and not stay”. He did not elaborate. The Tribunal invited the applicant to state when and where he had been detained and beaten after the event of May 2011. He responded, “after that the next time somewhere in November I was detained, next time was January, next time was 2012”. The Tribunal asked the applicant whether he wanted to say any more on this point. He said, “not at the moment”.
The Tribunal asked the applicant why he did not leave China [until] December 2013. He responded, “just before I left China, in September 2012, I was detained again. At that time I was beaten up the worst”. The Tribunal informed the applicant the manner in which his story was developing in the hearing was extremely hard to believe and invited him to comment. He replied, “that is all what I actually experience so I have been telling the truth”.
The Tribunal asked applicant why these instances of detention and assault were not included in his written application for protection. He replied, “when I submitted the application that is all I could remember, what I just told you, instance happened another time so there are two different things, also they are similar”.
In answer to question from the Tribunal the applicant confirmed that he arrived in Australia [in] December 2013.
He was asked why he did not apply for a protection visa at that time. He replied, “we had our visa application done other people, and also when we came my wife was an overseas student, we could attend church freely, therefore we did that of applying during that time”.
He was asked when he started attending church in Australia. He replied, “a few months after our arrival, then we started attending two times each week”. He was asked to state the name and address of the church. He said, “first year in Australia” and proceeded to give a name which was incomprehensible. When invited to spell the name he spelled “[Suburb 2]”. He was again invited to state the name of the church and its address. He replied, “I can’t remember address, church is behind [a named store], can’t tell the address”. When asked to state the name of the church he said, “the name I can’t remember”. He was asked how long he had attended the church. He replied, “when first arrived we attended for two months”. The Tribunal asked the applicant to state the extent of his involvement in the Christian church in Australia. He replied, “I attended a lot of activities, I can’t remember”. The Tribunal asked the applicant to state the names of various churches, when he had attended them and their location. He replied, “Friday night we attend church to pray, monthly we catch up on Saturday, to barbecue and through barbecue aim to know each other”. When invited to add anything further he said, “no every week Friday night”.
The Tribunal asked the applicant why he had no witness and no document to corroborate his involvement in the church in Australia. He replied, “no, correct”.
The Tribunal asked the applicant why the student visa had been cancelled on 4 June 2015. He responded, “because wife didn’t attend classes during first half of 2015, so student visa cancelled”.
He was asked why he did not return to China at that time. He said, “because thinking about going back I might be beaten up by officials”.
When asked why he did not apply for a protection visa at the time he said, “because we didn’t know there are such things, later on we were told by friends, who are Catholic, that is why we sought the lawyer to help us lodge the application”. He was asked when he had consulted the lawyer. He responded, “just after visa was cancelled, about five or 15 days after the cancellation of the visa”. He was asked why he did not apply for a protection visa at that time. He said, “because after we went to see the lawyer said took time to prepare”. The Tribunal observed that his response did not make any sense because the student visa had been cancelled in June 2015 but the applicant had not made an application for protection until August 2016. He responded, “now I remember after student visa got cancelled we were ordered to report to Department weekly”. The Tribunal observed that his response did not explain the discrepancy between the dates and invited him to provide an explanation. He said, “what happened was as soon as the student visa cancel we were told by Department that we did not have a valid visa to stay so we had to report to Department twice each week. Later on it was reduced to once each week, to report ourselves, we can’t support our leaving there is no income, so Department advise asked not to report any more but preparing to go back to China”.
The Tribunal put to the applicant that the student visa was cancelled in June 2015, the Administrative Appeals Tribunal had affirmed that decision in July 2016, he had sought ministerial intervention on 16 August, but then applied for a protection visa on 18 August, and that he had applied for a protection visa only after all his other avenues had been exhausted. He said, “protection visa application, what I said was true, you can check with the Department. We did have to report ourselves after the visa was cancelled”.
The Tribunal asked the applicant whether he believed that he would be harmed or threatened with harm if he returned to China. He said, “yes most definitely, most inevitable”.
He added “because once we return to China I will be beaten up so I tried everything to keep the visa to stay in Australia”.
The applicant was asked whether there was any reason why he could not move to a location that had an authorised Catholic church. He replied, “because in Australia everything is better than China so that is why would like to stay in Australia, I ask you to grant our visa”. When the question was repeated, he said, “I know what you are asking, you want us to go to another place in China, there are other churches around, but just put out there for show, in reality all followers, governed by tighten rules, they don’t allow you to practice freely”.
When invited to add anything further to his application for review, he said, “I sincerely asking you as delegate please give us a chance to stay in Australia”.
The second applicant did not give evidence at the hearing.
The Tribunal finds that:
a)The first applicant is a [age]-year-old male, born on [date] in Heng Shui City, Hebei Province, China.
b)The second applicant is a [age]-year-old female, born on [date] in Heibei Province, China, and is a member of the family unit who does not raise her own claims for protection.
c)The applicants can speak, read and write Mandarin.
d)The applicants are of the Han ethnicity.
e)The applicants are citizens of China.
f)The applicants were married [in] February 2012.
g)The first applicant arrived in Australia [in] December 2013 on a student visa.
h)The first applicant’s visa was cancelled on 4 June 2015 and the cancellation was affirmed by the Tribunal on 12 July 2016.
i)The applicants applied for ministerial intervention on 16 August 2016.
j)The applicants applied for a XA-866 Protection visa on 18 August 2016.
THE COUNTRY INFORMATION
In accordance with Direction No.84 made pursuant to s 499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. The DFAT report titled “People’s Republic of China” dated 3 October 2019 relevantly stated as follows (footnotes omitted):
SECURITY SITUATION
2.55Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.
2.56Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population (see The Social Credit System).
2.57Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Sensitive social groups, including religious organisations, Uighur and Tibetan ethnic groups, Falun Gong practitioners and human rights activists, have alleged that the government uses a range of surveillance methods to monitor their activities. Since 2016, media have reported that Chinese police and security agencies have begun combining photo databases, artificial intelligence and facial recognition technology installed in surveillance cameras to track down criminal suspects and ‘destabilising agents’ in society.
2.58 Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. In 2016, the gap between domestic security and defence expenditure reportedly reached a record high of 13 per cent, with domestic security expenditure increasing by 17.6 per cent compared to the previous year, to exceed RMB 1 trillion (AUD 209.4 billion), while defence expenditure only increased by 7.5 per cent. However, the actual amount China spends on its military and domestic security is widely debated. Most foreign experts, governments and relevant publications concur that Chinese statistics on security spending do not include some outlays that are standard reporting for most other countries, and note there is no way to verify the accuracy of official figures reported by China.
2.59 Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans). Over the same 10 year period, security expenditure increased by 411 per cent in the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang), by 404 per cent in the Tibet Autonomous Region (TAR) and 316 per cent in Qinghai (where the population is approximately 25 per cent Tibetan). In February 2018, Xinjiang reported a 92.8 per cent increase in its domestic security spending, from RMB 30.05 billion (AUD 6.3 billion) in 2016 to RMB 57.95 billion (AUD 12.9 billion) in 2017. The increase in security spending in TAR is estimated at 9.3 per cent, although TAR maintains its position as the region with the highest per capita domestic security expenditure of all provinces and regions since 2008, ahead of Xinjiang. Analysts of Chinese security expenditure suggest that per capita domestic security spending in sensitive minority regions is now higher than per capita domestic security spending in the US or Russia (PP adjusted by wage levels).
2.60 In June 2017, China’s National People’s Congress Standing Committee also passed a new National Intelligence Law (2017; amended 2018) which forms part of a national security legal architecture introduced in 2014 which includes the Counter-Espionage Law (2014), Criminal Law (1979; Amended 2015), National Security Law (2015), Anti-Terrorism Law (2015) and Cyber Security Law (2017). The National Intelligence Law calls upon all elements of Chinese society, including individuals, to contribute to national intelligence work. The law inter alia empowers security agencies: to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’; to monitor suspects, raid premises or seize vehicles during the investigation of domestic or foreign individuals or groups; to gain priority use of transportation or telecommunications equipment, buildings or enterprises; and to employ ‘technical reconnaissance’ measures with permission. The law explicitly requires security agencies to act in strict compliance with laws relating to the protection of human rights, and states agencies should not exceed their authority or abuse their powers. DFAT is aware of reports of kindergarten children being given homework instructing how they should assist state security officers.
ARBITRARY DEPRIVATION OF LIFE
4.1Article 37 of China’s Constitution states that ‘freedom of the person’ of citizens of the People’s Republic of China is inviolable.
Enforced or Involuntary Disappearances
4.3Chinese law permits security agencies to detain suspects without charge for varying lengths of time during an investigation, with the conditions dependent on the nature of the offence investigated (see Arbitrary Arrest and Detention). Police have broad powers of detention during investigations relating to national security or intelligence matters, as defined by the CCP or state agencies. In the course of the anti-corruption campaign, the CCDI has detained many Party members suspected of corruption, holding some for several months before delivering them to the state criminal justice system (see Corruption).
4.4The authorities' power to restrain the liberty of citizens through a number of legal or extra-legal measures applies to children as well as adults: Then six-year-old Gedhun Choekyi Nyima disappeared with his parents in 1995, after the current Dalai Lama recognised him as the reincarnation of the Panchen Lama, Tibet’s second most senior spiritual leader. The Chinese authorities declared the nomination invalid and installed another six-year-old, Gyaltsen Norbu, as Panchen Lama in his place (see Buddhists). No international observer (diplomatic, media or NGO) has seen Gedhun Choekyi Nyima since 1995. The then 16-year-old son of a ‘709’ lawyer (see Human Rights Defenders (including Lawyers)) was arrested in 2015 at Beijing airport on his way to school in Australia, and again later that year on the Chinese-Myanmar border. In November 2017, he was denied exit from Beijing airport while again seeking to travel to Australia for study.
TORTURE
4.14China ratified the Convention against Torture and Other Inhuman and Degrading Treatments in 1988. Chinese law prohibits the physical abuse of detainees and forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. Amendments to the Criminal Procedure Law that exclude evidence, including confessions, obtained through illegal means, including under torture, took effect on 1 January 2013.
4.15In 2015, the UN Committee against Torture expressed serious concern over consistent reports indicating torture and ill-treatment were still deeply entrenched in China’s criminal justice system (see Torture). In 2016, in its concluding observations on the Fifth Periodic Report of China in January 2016, the UN Committee against Torture also expressed concern over a number of continuing practices that it assessed increased the risk of torture of detainees. These practices include: lengthy pre-trial detention; denial of access to a private lawyer; withholding of information from the detainee’s family in cases deemed ‘endangering state security’, ‘terrorism’ or serious ‘bribery’; ‘residential surveillance’ (see Arbitrary Arrest and Detention); the lack of independence of medical practitioners examining detainees; revisions to laws that prohibit (undefined) ‘conduct that disrupts court order’; lack of judicial or procuratorial oversight of criminal investigations; lack of information on past investigations of allegations of torture by security officials; unexplained deaths in custody; solitary confinement and use of restraints; a lack of information on inspection of detention facilities; exclusion of matters relating to ‘State secrets’ from the government’s reporting on torture; and the broad definition of many offences, including ‘endangering State security’, ‘picking quarrels and provoking troubles’, and ‘gathering a crowd to disturb social order’.
4.16Family members of the ‘709 lawyers’ (see Human Rights Defenders (including Lawyers)) wrote an open letter to world leaders on 1 March 2017 detailing allegations of mistreatment of their family members while in detention. The allegations included: forced consumption of drugs; marathon interrogation sessions and sleep deprivation; beatings; the application of heavy weights on legs; being almost entirely submerged in water for several days at a time; and threats and detention of family members. Individual lawyers detained during the ‘709’ crackdown have also detailed allegations of mistreatment at the hands of the authorities.
4.17Falun Gong practitioners have reported mistreatment in custody including sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings (see Falun Gong). International human rights reporting continues to document use of psychological pressure against Falun Gong practitioners. Media, human rights groups, members of the international community, and Uighurs have also reported the use of violence and torture of Uighurs in re-education centres in Xinjiang (see Ethnic Uighurs, Muslims).
4.18Media and Uighurs’ reports of physical and psychological maltreatment have included, but are not limited to, interrogation, inappropriate clothing for climate, sleep deprivation, administration of electric shocks, having weights tied to feet, indefinite confinement, forced administration of medication, psychiatric drugs, injections, blood tests, DNA sampling, and medication to stop menstruation, as well as intrusive medical examinations.
4.19DFAT considers allegations of torture, particularly those detailed in cases deemed politically sensitive, to be credible.
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Arbitrary Arrest and Detention
4.20The Ministry of Public Security manages pre-trial detention facilities and procedures. Authorities with the power to authorise the detention of a criminal suspect include (but are not limited to) the Public Security Bureau (PSB), Ministry of State Security, and the Anti-Smuggling Bureau.
4.21Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’
4.22These procedures are not subject to judicial oversight. The post-arrest investigation period can be up to seven months, and preparation of indictment can take up to six and a half months. The total time required to hear a case and issue a verdict in standard cases ranges from twenty months to an indefinite period. Security agencies can hold individuals for years while they progress through the charge, arrest, investigation, court hearing and sentencing processes. Individuals convicted of an offence do not move into the prison system until their case is finalised, including any appeal processes. Time served in a detention centre is deducted from their custodial sentence.
4.23Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.
4.24Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. Police detention beyond 37 days requires prosecutorial approval of a formal arrest and notification of family members within 24 hours of detention. The law permits officials not to provide notification if doing so would ‘hinder the investigation’ or for cases pertaining to ‘national security, terrorism, and major bribery’. During periods and anniversaries considered politically sensitive, authorities often detain activists without charge for the full 37-day period.
4.25Administrative detention is regulated under the law on Penalties for Administration of Public Security (2006). Administrative detention is imposed for crimes of a minor nature, and which are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.
4.26Under the Criminal Procedure Law, police may also detain individuals in ‘residential surveillance at a designated location’ (RSDL) away from their home for up to six months before formal arrest or release. RSDL can be used to detain individuals suspected of crimes endangering national security, involving terrorist activity, or involving serious corruption (see Corruption), or where the suspect or defendant does not have a fixed residence. Authorities must notify relatives of individuals placed under formal arrest or residential surveillance in a designated location within 24 hours, unless notification is impossible. The notification does not need to specify the reason for or location of detention. Suspects do not have the right to meet defence lawyers in these categories of cases. In cases involving national security or terrorism, police are authorised to detain a suspect after arrest for up to an additional seven months while investigating the case. Following investigation, the procuratorate has an additional 45 days to determine whether to file criminal charges of detention, during which time detention can continue. The law explicitly allows detainees to meet with defence counsel before criminal charges are filed but this rarely happens where cases are considered politically sensitive. After filing charges, authorities can detain a suspect for an additional 45 days before beginning judicial proceedings.
4.27RSDL has been criticised for exposing detainees to risk of mistreatment (see Torture) and for enabling conditions of detention that produce forced confessions. While evidence obtained while in RSDL should be able to be excluded in court, rarely is this the case. Human rights groups report RDSL has been increasingly used to detain activists, human rights lawyers and government critics in recent years, and claim police training dormitory facilities have been repurposed for RSDL.
4.28Locations used to enforce RSDL are often referred to as ‘black jail,’ however the term ‘black jail’ more correctly describes short-term detention in rented/owned, run down hotel rooms or similar, often used for petitioners, criminals and those under suspicion of less sensitive allegations, as a coercive measure. The primary distinction between RSDL and ‘black jail’ is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in ‘black jails,’ and occurs in government-run, custom fit for purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.
4.29Public security authorities continue to use other forms of administrative detention to suppress political and religious dissidents, sex workers, drug users and petitioners. Authorities also detain family members of dissidents: poet Liu Xia, widow of Nobel Peace laureate Liu Xiaobo, was released in July 2018 after being under house arrest for nearly eight years following her husband’s nomination for the Nobel Peace Prize in 2010 (see Deaths in Custody). Authorities have also curtailed the freedom of family members of ‘709’ lawyers (see Human Rights Defenders (including Lawyers) and Uighur and Tibetan activists (see Ethnic Uighurs and Ethnic Tibetans). The law does not provide for house arrest. Individuals facing this type of detention do not have the right to legal counsel or due process. The Chinese government abolished its ‘re-education through labour’ policy in December 2013, although media and human rights groups claim re-education through labour (including in prisons and linked to Xinjiang-based re-education centres) continued in 2018 and supported production in factories for overseas markets (see Detention and Prison and Ethnic Uighurs).
4.30DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.
Detention and Prison
Prison
5.19Prison conditions vary significantly among different parts of the country depending on local economic conditions; however, conditions in prisons are generally better than conditions in detention centres. Chinese law provides for prison accommodation to be ventilated, clean and warm with natural light. Prisons are required to provide adequate medical, living, and sanitary facilities. In practice, there is no independent monitoring of the prison system and the lack of transparency into China’s legal system makes it difficult to make generalised assessments of prison conditions.
5.20In general, prisoners are segregated by gender, and four to eight prisoners are allocated to each cell, although DFAT is aware of reports of up to 20 to 40 people in cells. Conditions can be overcrowded, and detainees can be required to sleep on the floor and denied regular exercise. Nevertheless, prisoners generally have beds, shower facilities, access to telephone calls and family visits. However, conditions vary depending on the location, resources available, training of prison or detention guards, and perceived level of political sensitivity and profile of the individual concerned. Foreign prisoners generally receive better treatment in detention than locals receive.
5.21Meals are served regularly, but nutritional quality is poor (often plain rice and vegetables) and quantities are small. Many detainees rely on supplemental food, medicines and warm clothing provided by relatives. Sanitation facilities are limited to buckets and sanitation troughs and/or open toilets. Prison officials sometimes deny these privileges as a form of punishment, particularly for political dissidents (see Torture). Prisoners do not always receive adequate medical care (see Deaths in Custody).
5.22All prisoners are put in the same cells, irrespective of their crime. There is no solitary confinement. Those sentenced to the death penalty are shackled during the day, and locked to a permanent position in the cell at night in the period before execution. Due to shackling, those sentenced to the death penalty have reported they were required to seek the assistance of other non-shackled prisoners to access basic needs like food, water and toilet facilities. Only family members can visit prisoners in China, and prisons generally allow one family visit per month. Women’s prisons are more likely to have better conditions than men’s, and tend to have more psychosocial support services.
5.23Prisoners are generally required to perform work tasks. Prisons operate a merit points system (similar to The Social Credit System), whereby work (such as factory or circuitry work) can be performed to earn points to reduce sentencing, to pay off fines, or supplement inadequate food supplies. In order to be eligible for prisoner exchange, sentences need to be reduced from ‘life sentences’ to a tangible fixed-term sentence of a number of years. However, DFAT is aware it is difficult for prisoners to use work to successfully achieve sentence reductions, and understands working conditions are generally poor. The government formally abolished its ‘re-education through labour’ policy in December 2013. Media and human rights observers claim, however, that forced labour in prisons continued in 2018, supporting production for overseas markets.
5.24Medical facilities in prisons can be comprehensive. Most prisons have a hospital wing, where medical conditions can be treated and monitored. There is at least one prison hospital in each province, and prisoners suffering serious or long-term medical conditions can be transferred to the prison hospital.
Detention
5.25See Arbitrary Arrest and Detention for distinctions between types of detention. Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Pre-trial detention is highly controlled, and there are no opportunities to work to reduce sentences or for family visitation. Cells in pre-trial detention are approximately 12 metres long and five metres deep, with up to 24 detainees held in each cell.
5.26Detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials. There is no opportunity to exercise. Meals are delivered to cells three times a day, and detainees are permitted to purchase a limited range of additional food, clothes and personal hygiene items. In pre-trial detention, bright, fluorescent lights are generally switched on 24 hours a day. DFAT is aware of reports of violence and mistreatment in detention centres, with authorities taking immediate action (including shackling violent detainees) to discourage violence.
5.27Hygiene, medical services and food and water provisions are sub optimal and rudimentary at best. Cellmates generally share one open toilet per cell. While detention centres will generally have on-site doctors, they have limited options for treating medical problems.
5.28As in the prison system, national Detention Centre regulations require detainees sentenced to a non- suspended death penalty to be shackled, to prevent self-harm. Detainees subjected to shackling must wear the restraints, which are fixed to an anchor point in the cell, at all times, and require assistance from other detainees for toileting and washing themselves. According to the mandate of pre-trial detention centres, offenders who are sentenced to death are often kept in detention centres (rather than transferred to prisons), thus detained together with pre-trial detainees.
5.29Family visits are technically possible after all judicial proceedings have been finalised and the defendant is sentenced. However, DFAT is aware of reports that family visits to detainees are generally not permitted and, in most cases, families must wait until the defendant has been transferred to a prison and completed their mandatory one-month induction process before they can visit.
5.30Australia has signed, but has not ratified an extradition treaty with China.
Exit and Entry Procedures
5.40Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
5.41Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.
STATE PROTECTION
5.1 Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.
5.2 There is no organisation in China tasked with enforcement of the Constitution and courts do not have the general power of judicial review which would allow them to invalidate laws on the grounds they violate the Constitution. The Constitution states the National People’s Congress and its Standing Committee have the power to review laws that violate the Constitution, but, in practice, these powers are rarely exercised, with only one instance of regulations being rescinded.
5.3 Crimes are investigated by public security organs, generally the PSB, but also including other organs such as the Anti-smuggling Bureau, Ministry of State Security and National Supervision Commission, prosecuted by the People’s Procuratorate, and tried in the People’s Courts. All lawyers must be registered with, and operate in compliance with, regulations issued by the All China Lawyer’s Association, which is directly supervised by the Ministry of Justice (see Human Rights Defenders (including Lawyers)).
5.4 The Criminal Procedure Law and Criminal Law regulate arrest and detention. The Criminal Procedure Law sets out the procedures to be followed in the criminal process. It applies prior to a verdict being issued by a court and the Criminal Law is applied after a verdict has been issued. Criminal prosecution can be lengthy, and it can take in excess of one year for a case to progress from initial detention to verdict and sentencing.
Police
5.6 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.
5.7 Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.
5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention (see Protesters/petitioners). Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released (see also Deaths in Custody).
5.9 Police are unable to open a case until the prosecutor is confident there is a high chance of conviction. Police are required to send a brief to the prosecutor seeking formal permission to arrest, and only very clear- cut cases are generally approved, accounting for the 99 per cent conviction rate. When the procuratorate deems there is not enough evidence to justify arrest, it sends the case back for further investigation. Sources report that police are under pressure to obtain confessions prior to trial, and to ensure success in all police investigations. However, China has taken some positive steps to protect individual rights through amendments to the Criminal Procedure Law prohibiting the use of confessions obtained under torture as evidence, and requiring interrogations in major criminal cases to be audio and video recorded. However, these protections do not apply in cases involving national security, which are investigated outside of China’s criminal justice system. In practice, the number of cases in which evidence is not accepted at trial because it was obtained through torture or other coercive means is still very low, and only very few cases of this nature have been reported.
5.10 DFAT has no additional information on the quality of local policing or responsiveness of the PSB to local crime.
Judiciary
5.11 China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. The CPP approves judicial appointments and personnel decisions. Jurors are also appointed to a jury pool by the CCP for a five-year period and therefore serve the needs of the Party. The CCP also exercises direct influence in individual cases through Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts, and are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important.
5.12 China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.
5.13 Enforcement of court judgements remains an issue. However courts now publish many routine judgements online on the Open Trial Network (OTN). The OTN is a case database platform, which increases transparency (for listed cases) to help enforce judgements and parole. If individuals or entities do not comply with fines or fulfil judgements, they can face other restrictions in line with the SCS (see The Social Credit System). Nevertheless, OTN coverage is patchy and not all cases reported in the media are listed. The 709 crackdown cases, for example, are not listed on the OTN. Only final judgements can be viewed on the OTN; intermediary judgements are not always accessible if there is an appeal.
5.14 Articles 183, 274 and 196 of the Criminal Procedure Law require cases involving state secrets, personal privacy, trade or commercial secrets or where the defendant is under 18, to be tried in a closed court. Cases involving trade or commercial secrets are also held in private if any party concerned in the matter requests a closed court session. However, Article 196 requires all verdicts to be issued in open courts.
5.15 Judicial reforms implemented in recent years have led to an increase in administrative law cases, albeit from a very low base, including local cases of official abuse of power. For example, the Shenzhen court has published figures for administrative cases showing 10,133 administrative cases in 2015, compared with 9,167 in 2014 and only 3,840 in 2013. In 2015, the government lost 381 (15.2 per cent) of 2508 lawsuits against it. While improving, these relatively low numbers - even in one of China’s wealthiest and most international cities (Shenzhen has a population of 12 million) - indicate the difficulties faced by ordinary people in pursuing cases against officials.
5.16 A number of special courts also play a key role in the judicial system. The Standing Committee of the National People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special courts include the military courts, maritime courts, railway transportation courts, forestry courts and the intellectual property courts. The military court, established within the People’s Liberation Army, is responsible for hearing criminal cases involving servicemen and women. This is a relatively closed system without external supervision.
5.17 The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction. Maritime courts operate in Shanghai, Tianjin, Qingdao, Guangzhou, Wuhan, Haikou, Xiamen, Ningbo, and Beihai, and there are also 39 detached Tribunals in major port cities across 15 provinces. Maritime courts have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases, and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises. The procedures of the maritime courts are governed by the Civil Procedure Law (1991; amended 2017), and where there is no provision in the Civil Procedure Law, the Special Maritime Procedure Law (1999) applies. However, maritime courts have no jurisdiction over criminal cases and other civil or administrative cases without a maritime element. In the event of a jurisdictional dispute regarding the existence of a maritime element, the ordinary court at one level higher than the maritime court and the ordinary court seeking to exercise jurisdiction, will determine jurisdiction. The High People’s Court in the locality where a particular maritime court is located has appellate jurisdiction over judgments and orders of the maritime court. Sources claim the maritime court’s remit has, at times, increased to include administrative cases, labour cases involving unpaid workers, shop workers (sailors) and maritime pollution cases. The Maritime Courts connect with port and border authorities, and entry and exit can be prohibited if an Individual has a pending Maritime Court order.
5.18 DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
INTERNAL RELOCATION
5.31 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement (see Hukou (household registration) system). Those who have otherwise come to the attention of the authorities may also face impediments to freedom of movement (see The Social Credit System and Security Situation).
5.32 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Uighurs and Tibetans).
5.33 DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score (see The Social Credit System, Religion, Political Opinion (actual or imputed) and Groups of Interest). People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel (see Security situation and The Social Credit System).
Hukou (household registration) system
5.34 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases, face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities.
5.35 The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have historically had tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) have been generally more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.
5.36 In April 2019, the National Development and Reform Commission announced the 2019 Urbanisation Plan, which relaxed hukou residency restrictions in small and medium-sized cities. The 2019 Urbanisation plan requires cities with populations between one and three million to end all household registration restrictions under the hukou system. Cities with populations between three and five million will relax restrictions on new migrants and remove limits on key population groups, including graduates of universities and vocational colleges. Small and medium-sized cities and towns of under one million permanent residents have already gradually lifted restrictions on household registration. In addition to loosening hukou restrictions, the plan directs local governments to promote basic public services for permanent residents and further develop urban infrastructure to handle increases in population.
5.37 According to media reports, it will be easier to apply for hukou in big, medium-sized, and small cities (some second-tier and all third and fourth tier cities). China has 13 cities with a population of more than five million in their urban areas, which will not see a relaxation of hukou restrictions under the new policy: Beijing, Shanghai, Guangzhou, Shenzhen, Tianjin, Chongqing, Wuhan, Chengdu, Nanjing, Zhengzhou, Hangzhou, Shenyang and Changsha. Cities that may be affected by the new plan may include, but are not limited to: Xi’an, Harbin, Changchun, Taiyuan, Nanning, Dongguan, Suzhou, Hefei, Jinan, Qingdao, Dalian, Xiamen, Ningbo, Kunming, Shijiazhuang, Nanchang and Fuzhou.
COUNTRY INFORMATION - CLAIMS SPECIFIC
RELIGION
3.28 China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
3.29 In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
3.30It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).
3.31The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.
3.32In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher - particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 Million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 18.
Government framework regarding religion
3.37Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).
3.38Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.
3.39Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed DFAT Country Information Report People’s Republic of China 25 SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949.
3.40The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.
3.41The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.
3.42According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.
3.43The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).
3.44Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of nonrecognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.
3.45Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.
3.46Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.
3.47Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’
3.48DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.
3.49While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.
Christians
3.76China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
3.78There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
3.79Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or Imputed) and Protesters/petitioners).
3.80Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.
3.81In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.
3.82Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
3.83DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.
Protestants
3.84The Three-Self Patriotic Movement (TSPM), established in 1949, oversees China’s ‘postdenominational’ (non-denominational) Protestant church and is estimated to have 23 to 30 million members (official statistics). The ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self administration, self-financing and self-evangelisation. The Chinese Christian Council (CCC) and the TSPM supervise approximately 60,000 registered Protestant churches and several hundred thousand affiliated meeting points.
3.85The TSPM operates seminaries in Liaoning, Zhejiang, Heilongjiang, Guangdong, Fujian, Jiangsu, Shandong and Nanjing, as well as many bible schools across the country. Unlike other religions, sources report the government provides financial support to TSPM seminaries, and TSPM seminaries are required to play an informal role in implementing government policy and regulations on religion (see RRA, Government Framework regarding religion), and monitoring provincial churches.
3.86Between 100 and 200 students are estimated to study at each TSPM seminary each year. TPSM seminary study is four-years long, and graduates are required to return to teach at their original church on completion of the course, and to return to their TSPM seminary every three years (while under 60 years of age). Qualifications from foreign seminaries are not recognised in China. TSPM believers are not permitted to proselytise outside of church or seminary walls, and TSPM seminaries require provincial-level approval from the TSPM committee to invite foreign religious leaders to visit the seminary. Sources report the demographics of TPSM followers are shifting. Historically, believers were mostly older and female, whereas there is a growing trend of younger adults with higher levels of education joining TSPM.
3.87Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 100 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities. DFAT is aware of, but cannot verify, reports of authorities pressuring house churches by cutting off electricity or forcing landlords to evict members. Some members of house churches claim to have been able to use registered church facilities for weddings, or to purchase bibles. Others have reported difficulties in hiring even commercial facilities such as hotels or restaurants, because of their association with illegal churches. Christian organisations report house church members were arrested in 2017 for refusing to register with the TSPM, and Christian schools were closed for ‘brainwashing’ children.
3.88The Zhejiang provincial government’s 2013 urban renewal campaign led to the demolition of several hundred unregistered churches. In 2017, the US Commission on International Religious Freedom reported over 1,500 church demolitions or removals of crosses since 2014. The government has punished church DFAT Country Information Report People’s Republic of China 32 leaders who oppose the campaign with heavy prison sentences (up to 14 years) on public disorder charges, as well as apparently unrelated charges such as embezzlement. In May 2019, media and Christian advocacy groups reported the government launched a new campaign called ‘Return to Zero’ in April 2019, aimed at eradicating underground house churches and ensuring only state sanctioned and heavily restricted TPSM churches remained functional. Authorities have also targeted lawyers defending the church leaders.

DFAT Thematic Report Unregistered religious organisations in the People’s Republic of China 3 March 2015
HISTORICAL OVERVIEW OF RELIGION IN CHINA
2.4Religious practice was forced underground throughout the Cultural Revolution (1966-1976) and people began to practice their religious faith in secret. This led to the development of so-called “underground” religious movements. State-sanctioned religious practice re-emerged under Deng Xiaoping’s “Reform and Opening” policies in the late 1970s and 1980s. Han Chinese Buddhists and Daoists, in particular, have enjoyed greater freedom as Chinese leaders use such traditions to promote Chinese cultural identity to both a domestic and international audience.
2.5The Party is also increasingly willing to recognise and support the philanthropic activities of registered religious groups, particularly in disaster relief, health care and poverty alleviation. At the same time, members of religious faiths that are perceived by the government to be potentially threatening can be met with suspicion and government controls. Members of overseas-affiliated Christian organisations, Tibetan Buddhists and Uighur Muslims, in particular, can face interference, harassment, and at times, violence.
THE RISE OF UNREGISTERED CHRISTIAN GROUPS IN CHINA
3.1SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of a sizeable unregistered Christian community in both rural and urban China. Known as “house” or “family” churches (for Protestant organisations), and “underground” churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship.
3.2House churches can be found across China and vary in size and religious practice. Gatherings of 30 to 40 people are generally tolerated, although DFAT is aware of cases where gatherings of fewer people have attracted negative attention by authorities. On the other hand, there are also some house church congregations that number in the thousands and are able to operate with little to no interference from local authorities. A number of house churches are known to restrict their own size and activities so as to avoid official attention.
3.3Members of both unregistered and registered religious organisations can face adverse attention by authorities when: they are perceived to have links with foreign influences (either through personnel or funding); are critical of the government or advocate for issues considered political or sensitive by the government; belong to large and potentially influential networks; are engaged in other criminal activities; or are operating in provinces or local settings where corruption is prevalent, and the potential for extortion and running afoul of local authorities’ favour, is potentially higher. Occasionally, anti-crime campaigns with quotas for a certain number of arrests can also prompt local officials to crack down on Christian activities that had previously been tolerated.
OTHER GROUPS, INCLUDING ‘CULTS’
3.20The interpretation of what constitutes a cult can vary throughout China, with some local authorities listing behaviours such as “deifying leaders, deceiving people, and spreading superstitions and heretical beliefs” as grounds for labelling a group a “cult”. Practices deemed superstitious, cult-like, or beyond the vague legal definition of “normal,” can attract harassment, detention and imprisonment by authorities (for example, in December 2012, Chinese media reported more than 1,300 people across 16 provinces had been detained for propagating rumours of an apocalypse). A joint interpretation issued by the Supreme People’s Court and Supreme People’s Procuratorate in 1999 stated that punishments for cult crimes can be applied when one “resists group bans by relevant departments, resumes banned groups, establishes other sects, or continues [illegal] activities”. Individuals who organise or use “superstitious sects, secret societies or evil religious organisations” to undermine the state’s laws or administrative regulations can be sentenced from three to seven years in prison under Article 300 of the Criminal Law. Government crackdowns against cults occur with relative frequency in China.
3.21Groups such as the Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Zhong Gong (a qigong exercise discipline), and Falun Gong (see below) are banned by the Chinese government. The government also considers several Christian groups to be “evil cults,” including the DFAT Thematic Report - China 9 “Shouters,” Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church.
3.22Both registered and unregistered orthodox Christian Churches tend to deride the doctrines of “cultish” organisations as heresy. However, at the same time, government crackdowns on “cults” often bring attention and scrutiny of Christian house churches by government officials, scholars, and ordinary people who can find it difficult to distinguish between the two
Other groups, including ‘cults’
3.93The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
3.94In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.
3.95Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.
COUNTRY INFORMATION – SUMMARY
The Tribunal is informed by the country information, in summary, as follows:
a)As to security generally: gaining support for Chinese Communist Party (CCP) policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus.
b)As to the police: citizens can be arrested prior to being charged. Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. The arrest procedures are not subject to judicial oversight.
c)As to State protection: Article 5 of the Constitution states that “no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws”.
d)As to the judiciary: China has explicitly rejected “Western notions” of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.
e)As to internal relocation: DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel.
f)As to religion: China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. The major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million. Six million people follow Catholicism and 38 million follow Protestantism. There are 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues. While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups – faced intensifying official persecution and repression in 2018, which continues in 2019.
CONCLUSIONS
The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather, the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant did not produce any documents to corroborate his claims for protection except for an undated statement which had been provided to the Department many years prior to the hearing. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.
In his undated statement, the applicant asserted that he was a Christian apparently from an early age: “I began very early believers”. He stated that his wife, mother and father were also Christians. He asserted that “we accepted the formal Christian baptism”. This occurred, he contended, in 2009. He identified two other persons from the church who were involved, namely [Friend A] and “[Pastor B]”. He contended that “we” took part frequently in church activities. He also referred to other friends being involved. He asserted at the hearing that he was a Christian but provided little detail other than that he was a Catholic. Although he did state that he started attending the church in China “about 10 years ago”, somewhat inconsistently with his undated statement. The applicant’s involvement in Christianity is a crucial part of the application. However, the applicant produced no witness or document to corroborate this critical assertion. His explanation about this omission was most unconvincing and not accepted by the Tribunal. The Tribunal does not accept that either applicant is a Christian or a Catholic as alleged.
In the statement he asserted that he was assaulted and detained on a few occasions. The first detention was for a period of 10 days together with 10 other people. They were deprived of food and water. The statement also refers to two other instances of detention and assault. One of them involved detention for 15 days. These are a key part of the applicant’s case. However, the applicant did not produce any corroborative witness to support these allegations; indeed, he did not directly refer to them at the hearing. This is given some weight. The Tribunal does not accept that these events occurred as alleged or at all.
He also asserted in the undated statement that officials were looking for him and his wife in China. He stated that his mother had informed him of this. He did not refer to this at the hearing and produced no evidence from his mother or any other person to corroborate this assertion. The Tribunal does not accept that officials are looking for the applicants in China as alleged or at all.
At the outset of the hearing the applicant gave two reasons as to why he was seeking protection in Australia: first, due to his religious beliefs and secondly, because Australia was a well-developed country and the economy was better than China. When asked which reason was more important for seeking protection in Australia he responded, “life is easier and beautiful environment that is most important reason”. This is given some weight by the Tribunal.
At the hearing the applicant stated that he was a Catholic. However, he stated that he did not attend authorised Catholic churches in China. He gave several reasons for this: first, because there were no such authorise churches in his location; second, that there was no authorised Catholic church in China. The Tribunal is not satisfied by these responses and gives them some weight.
He asserted that he was fearful of persecution while in China and that his fear persisted until he left China. This is given some weight by the Tribunal.
When asked if he had been harmed or threatened with harm in China, he said, “yes”. However, he was vague and evasive when asked to provide details. He was invited to do so on several occasions. He gave one instance of being detained for two nights and two days. He asserted that he was assaulted with a whip. This is not referred to in his undated statement. He did not otherwise specifically refer to the detentions mentioned in his statement. At the hearing the applicant seemed to embellish his evidence as to being detained as matters progressed. These matters are given some weight. As stated earlier the Tribunal does not accept that the applicant was detained or assaulted as alleged or at all.
He asserted that the two day detention occurred in May 2011. However, he did not leave China until approximately [date] December 2013. His reason for delay in leaving China was evasive and unconvincing. This is given some weight.
The applicant arrived in Australia [in] December 2013, but did not seek protection until years later. His reason for delay was unconvincing and is not accepted by the Tribunal. This is given some weight.
The applicant asserted that he had attended church in Australia regularly. However, he could not provide the name or address of any church which he had attended in Australia. He provided no witness or document to corroborate his alleged involvement in the church in Australia. The Tribunal does not accept that either applicant has been involved in the church in Australia as alleged or at all.
The second applicant’s student visa was cancelled on 4 June 2015 because she was not attending classes. The applicants did not return to China at that time. The applicant asserted that this was due to his fear of persecution. However, neither applicant sought protection in Australia until August 2016. This is given some weight. The Tribunal does not accept the applicant’s reason for not applying for a protection visa in 2015.
The applicant did not apply for a protection visa until after the student visa cancellation had been affirmed by this Tribunal and after they had sought ministerial intervention. They did not wait for the outcome of the application for ministerial intervention and filed their protection visa application two days later. This is not the conduct of the person who has a well-founded fear of persecution. It is consistent with the conduct of a person who is intent on remaining in Australia by any means available. This is given significant weight by the Tribunal.
The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. The Tribunal does not accept the matters asserted by the applicant as the basis for his claim for protection in Australia.
It is also relevant that the applicant travelled to Australia as a dependant on his wife’s student visa [in] December 2013, but did not claim protection until 18 August 2016. His reasons for the delay in applying for a protection visa were unconvincing. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[1] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[2] In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, the Court observed in regard to a delay in lodgement of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material”. In the Tribunal’s view the applicant’s delay in lodging a protection visa application further suggests that the basis of the claim for protection should not be accepted.
[1] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] Subramaniam v MIMA (1998) VG310 of 1997.

In determining whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Tribunal they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.[3] As to the applicants alleged involvement in Christianity in Australia, the Tribunal does not accept that the assertions are not otherwise than for the purposes of strengthening his claim for protection in Australia. The evidence is disregarded.
[3] Migration Act 1958 (Cth), s 5J(6).
The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s 5J(1)(a) of the Act.
Having regard to the evidence the Tribunal makes the following findings:
a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;
d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;
e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s 5H(1) of the Act; and
f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act.
Complementary protection criterion assessment – s 36(2)(aa)
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 has considered 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 the applicant will suffer significant harm.
The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.
While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.
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)(b) or (c) 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 any of the criteria in s 36(2).
The application of the applicant having been unsuccessful, it follows that of the second applicant must also fail.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2021] AATA 4373

19 August 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Jurisdiction

Procedural Fairness

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Natural Justice