1724158 (Refugee)

1724158 (Refugee) [2023] AATA 3602 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stephen Chan (MARN: 9683243)
CASE NUMBER:  1724158
COUNTRY OF REFERENCE:                   China
MEMBER:Catherine Carney-Orsborn
DATE:1 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 01 August 2023 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – parents’ and younger brother’s experience – family home seized – denied Chinese passport by authorities – applicant’s commitment to Christianity – credibility concerns – migration history – delay in seeking protection – previous provision of fraudulent documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) on 20 September 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 11 May 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 5 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
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). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it the Tribunal and Department files.
The Department file contains copy of the application forms for a Protection visa, copy of the biodata page of the applicant’s foreign passport, copy of the applicant’s representative cover letter and submissions for a Protection visa application dated 9 May 2016, the applicant’s statement of claims dated 9 May 2016, and copy of the delegate’s decision record.
The Tribunal file contains application form for review of the refusal to grant him a Protection visa, a copy of the delegate’s decision record, copy of a statutory declaration from the applicant dated 26 June 2023, certified English translations of Certificates of release from detention for the applicant’s parents in China between 2021 and 2023, copy of certified English translation of Public Notice in respect of the applicant’s parents’ house in China, certified English translation of the applicant’s statement dated 27 June 2023, photographic evidence of the applicant’s religious activities, applicant’s statement dated 27 July 2023, applicant’s brother’s foreign passport’s biodata page, and letter of [Pastor A] dated 8 July 2023.
Applicant’s background
The following information was provided by the applicant in his application form for a Protection visa. He is of the Han ethnicity and from the Fujian province. He identifies with the Christian faith. He declared he worked as a [Occupation 1]. His parents and brother reside in Fujian. He declared he provided the Department with false material and was therefore found not to meet cl 573.224 when he applied for a further Student visa previously and that his student visa was refused [in] August 2013. He declared he departed Australia and re-entered Australia twice. First, for the period [from] December 2011 [to] February 2012. Then, for the period [from] October 2013 [to] November 2013. The applicant declared that he travelled to China on both occasions. The applicant also stated in his application for a Protection visa with the Department that he had been previously asked to depart Australia [in] April 2016 after his request for Ministerial Intervention was unsuccessful. The applicant declared he had completed various tertiary education courses and one English course in Australia between November 2007 and November 2011.
The applicant stated in his application for a Protection visa with the Department that he may be deprived of religious freedom. That he would not be able to practise his Christian faith without fear.
The applicant claimed that he had never personally experienced any harm in China.
The applicant stated in his application for a Protection visa that he feared the chance of being arrested or imprisoned by the Chinese police due to his religious practice. That he based this fear on his parents’ experience of almost being arrested by the police during a religious gathering. That he also based his fear on the accounts of the Australian church elders’ past experiences in China before their coming to Australia.
The applicant stated that he would find it impossible to relocate to other parts of China because his ‘hukou’, his family registration, is in Fujian and could not find employment, housing or medical assistance without a ‘hukou’ in another Chinese province.
The applicant’s statement of claim to the Department
The applicant included his statement of claims in his application for a Protection visa to the Department.
The applicant claimed that he occasionally attended church in China when he was younger only after his parents insisted on him going to church with them.
He stated that he attempted to renew his student visa in 2013 with the Department but that it was found that the applicant’s father’s bank statement was false, so his student visa application was refused. The applicant stated that he applied to the Tribunal for review of the delegate’s refusal to grant a student visa renewal. However, the Tribunal upheld the Department’s decision. The applicant sought a Ministerial Intervention after the unsuccessful outcome at the Tribunal. However, the request for a Ministerial Intervention was unsuccessful [in] April 2016. The applicant stated that he intended to seek Permanent Residence in Australia after the renewal of his student visa.
The applicant stated that it was after the unsuccessful outcome with his Ministerial Intervention request in 2016 he spoke with his parents. They advised the applicant to stay in Australia because the Chinese government had tightened policies on religion. That they, the applicant’s parents, almost got arrested by the police and Bureau of Religion during a religious gathering around Chinese New Year. That his parents advised him to apply for a Protection visa so he could remain in Australia.
The applicant listed four reasons for not applying earlier for a Protection visa. One, that the idea of a Protection visa application did not come to his mind as he intended to study hard, get a good education and skills to be able to apply for a Skilled visa, like he saw his classmates had done. Two, the applicant did not consider himself a serious Christian since a young age but until his student visa renewal application was refused. Three, that the applicant never imagined his student visa renewal would be refused by the Department and that the Tribunal would uphold the Department’s decision. Four, that religious freedoms in China had been tightened in recent times.
The applicant claimed that it was after the refusal of his Student visa renewal that he became a serious Christian. That he did not attend church in the past, but that since 2014 he began attending church services regularly and seriously. That it was around Easter 2016 that he considered getting baptised at Christmas time in 2016. The applicant stated that his church was [Church 1]. However, he learnt on 4 April 2016 that his Ministerial Intervention request had been unsuccessful.
The applicant claimed that after the unsuccessful outcome with his Ministerial Intervention request, he considered returning to China. However, he carefully considered the loss of freedoms of religion in China illustrated in churches demolitions and arrests of Christians, so he decided to stay in Australia and continue his religious journey without fear.
The applicant’s statement of claims to the Tribunal
In a statement of claims dated 26 June 2023, the applicant reiterates his claims of fear of persecution in China, that he would not be free to practise his faith and spread the Gospel. He reiterates his fears are based on the experiences of his parents and church elders and media reports.
The applicant states that he and his family are all Christians residing in Sydney. That his local church in Sydney does not follow the practice of providing reference letters to its members.
He states that in 2021 he applied to have his Chinese passport renewed, but the Chinese Consulate refused to renew it because he did not fulfil the government requirements.
He stated that his parents continue to be arrested and detained because of the practise of their Christian faith in China. He states that his parents’ house is now seized, they cannot return to their home and are living with extended family.
In a statement dated 24 July 2023, the applicant submitted to the Tribunal that he continued to fear returning to China. That his younger brother returned to China from [Country 1] in 2022 to visit his parents but upon renewing his passport he was not allowed to obtain a new Chines passport. That his parents had been detained in 2022 and in 2023. He stated that it would be difficult for this wife and kids to return to China because they are settled in Australia and have no ties in China.
The Tribunal hearing
On 5 July 2023, the applicant appeared before the Tribunal. The following is a summary of the oral evidence.
The Tribunal explained the purpose of the hearing and the criteria it was considering. The applicant’s representative attended the hearing.
The applicant indicated that he understood the interpreter and wanted complete interpretation.
The applicant confirmed his date of birth and that he was from Fujian province. He has his parents and a younger brother in China. His father is running a [business] and his younger brother is a student, they all live with his uncle.
In Australia, he has his wife and two children aged [age] and [age]. The applicant stated that he is working as a [Occupation 1] in Australia.
The Tribunal asked the applicant to explain why he feels he cannot return to China. He claims that it is due to religious freedom. The Tribunal asked why he felt he did not have religious freedom in China. He responded that he does not know why but home gatherings are banned.
The Tribunal put to the applicant words to the effect that he has provided photographs of himself and others attending a mainstream [denomination] church in Australia. He responded that he did attend mainstream churches in Australia.
The Tribunal put to the applicant that there are official churches in China that he could attend, and that Christianity was recognised by the authorities as a religion. He responded that this is not what he wants.
The Tribunal invited the applicant to expand on what he wants. He stated that he wants to go to a church of his own choice instead of a church where he is requested to attend.
The Tribunal asked how long he has been attending church in Australia. He responded that he had been attending church regularly since he came to Australia. He then changed to say from 2015.
The Tribunal asked if he attended church in China. He claimed that as he was a teenager in China, he was not allowed to attend house churches. He claims that the church told him he was not allowed. He claims that the church did not want him there.
He then claimed he attended house churches in China. He said words to the effect that his parents would take children to home gatherings and there were other children there. The Tribunal asked for more information.
He stated that the children listened and had a chance to meet God. The Tribunal asked why he did not attend church when he first came to Australia. He responded that when he was young, he had to go to school and when not at school his parents would take him to gatherings. He continued saying that when he was free, he thought he did not have the time to go on his own. He stated words to the effect that he started to do as he wanted and that is why he did not go to church when first in Australia. He stated he would still occasionally go to church as his parents called him. He claims they asked him, but he used to sleep.
The Tribunal asked why he changed his mind. He responded with words to the effect that when he tried to extend his Student visa, due to the nature of his bank statement, the Department refused to extend his Student visa; he claims the bank statement was printed out by his father and he does not know why it was not accepted.
The Tribunal pointed out that in relation to the issue of the cancellation of his Student visa he would have been provided with written reasons from the Department and the Tribunal.. He responded that he was provided with reasons but did not agree with them.
He said words to the effect that he only had 28 days to depart Australia and his parents told him about their circumstances in China and he decided to apply for a Protection visa. The Tribunal discussed with the applicant that he claims he did not know of his parents’ circumstances before. He claims that Chinese parents keep bad news from their children.
The Tribunal asked why they would suddenly change and share bad information with him. He responded with words to the effect that his parents did not want him to suffer what they had suffered.
The Tribunal then asked the applicant to discuss why his religion is important to him. He responded generally that he wanted to ascend to heaven with his parents and family. He responded that if he did not have faith, he could not live with them in heaven.
The Tribunal asked the applicant to expand. He stated that having a faithful life means better communication. He claims it is the same for his children. The Tribunal asked the applicant what happens at church. He responded he used to participate in youth gatherings and family gatherings and worship on Sunday.
The Tribunal asked what he did at Sunday services. He responded that they gather, chant and listen to teachings. He stated his children go to Sunday school.
The Tribunal asked if the applicant was baptised. He claims he was baptised in December 2016. The Tribunal asked why he was not previously baptised. He responded that he did not have a profound understanding of God he did not know what God means to him. He said he has formed a better understanding of God and feels like the seed planted by his parents has sprouted.
He claims that he has a profound understanding of God. He feels like his path has been prepared by God and he felt his glory and not abandoned. He said words to the effect that he is now happy as he has faith and family.
He said he wants to stay in Australia and has always wanted to since he came here.
The Tribunal discussed country information which indicates that Fujian has a high number of Christians with many officials being Christian and a high tolerance of Christianity.
He responded with words to the effect that he does not understand this information. He stated words to the effect that he attends church with others who are from Fujian province, and they say it is not like this.
The Tribunal asked if they were sympathetic to him. He responded that they were.
The Tribunal then asked why they did not provide any references. He responded that his church does not do this. The Tribunal said, often churches do. He responded that he did not know why they would not provide a reference.
The Tribunal then discussed with the applicant that he claims he was refused a passport renewal. His evidence was confused. At first, he said he presented for a new passport before his old passport expired. When the Tribunal put to him that in his statutory declaration, he stated that he was refused it as his passport had expired. He said he did not know about this. He then changed his evidence to say that during Covid the consulate was closed, and he received no response.
The Tribunal said that maybe he should follow them up.
He then stated that he posted his passport as registered post and they said they received it. He called consulate and asked if they received it and they said they had received it but not yet issued. They did not provide a reason or talk to him in a good manner. He claims he does not know why.

The Tribunal then discussed documents provided relating to detention, release, and seizure of a house. The Tribunal discussed the issue of incorrect dates on some documents and discussed country information which states documents can be easily obtained in China and that he had previously supplied false documents in relating to his student visa.
The Tribunal asked why his parent’s house was seized. He said it was seized in April. He claims he did not know why.
He then stated they were detained and later informed that their house was seized. He said it was because of gatherings at his home and they were arrested.
The Tribunal asked if there were often gatherings at his home in China. He responded yes, when he was young.
The Tribunal pointed out that previously he had said that he was taken to other people’s homes for gatherings. He responded that they were the same group of people
The Tribunal discussed his migration history and that it could look like his main aim from the beginning was to stay in Australia.
He responded yes that he liked Australia from the beginning.
The Tribunal discussed his previous history of supply of false documents. He asserted those documents were genuine.
The Tribunal pointed out that both the Department and Tribunal on review found they were not genuine.
He responded that he did not know why as they were genuine. He claimed those statements were from his parents and they had the money and deposited in his account.
The Tribunal discussed that his fear is related to Fujian province and discussed relocation to another area in China. He said he would face the same situation everywhere in China.
The Tribunal asked if there was anything else he wanted the Tribunal to consider. The applicant said words to the effect that he likes Australia, he has been in Australia for 17 years and God has allowed him to stay.
After the hearing the applicant provided a further statement, a copy of his younger brother’s expired passport, a copy of his brother’s completion of studies in [Country 1], two copies of ‘Notice for release from detention’ he claims are related to his younger brother. A letter from a Three-self Church priest.
Country Information
DFAT Country Information Report China December 2021
Christianity
Christianity is growing rapidly in China. Authorities have regulated Christianity to make it more ‘China-orientated’. Bibles are increasingly difficult to obtain, and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media but have not been implemented at the time of writing.[1]
[1] DFAT Country Information Report People’s Republic of China December 2021 [3.28]—[3.29] ‘DFAT China Report 2021’.
In a 2018 report, the Pew Research Centre ranked social hostility to people of different religions as low in mainland China, much lower than in Australia. Similarly low scores on hostility are found in other parts of East Asia. DFAT does not rule out the possibility of isolated societal discrimination. For example, a Christian may miss out on job opportunities based on fear that they will proselytise to clients and attract adverse government attention, but DFAT is not aware of incidents.[2]
[2] DFAT China Report 2021 above n 1 [3.31].
Protestantism in Fujian
In 2019, DFAT assessed that a wide variety of religions were generally able to thrive to a greater degree in Fujian province. This was largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China.[3]
DFAT assessed that people in Fujian had historically practised religion more freely within state-sanctioned boundaries than in other parts of China, as long as practices did not challenge the interests or authority of the CCP. However, DFAT assessed religious control in Fujian had incrementally tightened, albeit from a looser base, in line with the rest of the country.[4]
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.[5]
The 2021 DFAT country information does not report specifically on Protestants in the Fujian province. However, it reported that Fujian is a relatively liberal area of China. It holds one of the most concentrated groups of followers of the Yi Guan Dao faith (a syncretic Chinese religion combining elements of Buddhism, Confucianism and folklore). Fujian is a traditional stronghold for Catholicism and underground Catholicism in particular; however, it has seen particular efforts to convert underground bishops. Fujian province does not enforce its family planning policy strictly and penalties have not been imposed in some years. All of China’s eastern provinces had a relatively high proportion of official Protestant churches, Fujian being the lowest, accounting for slightly less than 30%.[6]
Churches in rural areas may have less interaction with the authorities and greater autonomy, and generally, there is variation in the treatment of Churches between regions.[7]
On 1 February 2018, the official Regulations on Religious Affairs came into effect which saw the tightening of controls over religious matters including the banning of minors involved in religious activities (such as summer camps, religious festivals) and receiving a religious education. The regulations are aimed at the ‘sinicisation’ of religions across China. The enforcement of prohibiting minors from being involved in religious activities varies across the provinces in China.[8]
DFAT confirmed in its 2021 country report on China that the exit and entry procedures remain one of the strictest.[9]
Chinese Consulates or Embassies issuing passports
Country information located from 2018-2019 indicated that Chinese nationals in Australia were required to renew their passports before they expired. That the Chinese embassy and consulates in Australia did not extend passports after they expired. Instead, those with expired passports were issued a Chinese travel permit (travel document) to return to China in lieu of a passport. In addition, Chinese nationals who arrived in Australian on a short-term visa and subsequently their passport was lost, stolen or damaged, were issued with a Chinese travel document to return to China. This information was confirmed at that time by consulting the translation of the information listed on the Chinese language version of the Consulate-General of the People’s Republic of China in Sydney website about the issuance of passports and travel documents.[10]
[3] DFAT Country Information Report People’s Republic of China 3 October 2019 [3.33] ‘DFAT China Report 2019’.
[4] DFAT China Report 2019 above n 3 [3.36].
[5] Ibid [3.44].
[6] DFAT China Report 2021 above n 1 [3.38], [3.77] and [3.120].
[7] ‘Official Protestantism in China', Review of Religion and Chinese Society’, Volume 6, Issue 1 (2019) 77, ‘China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)', Research Directorate, Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada, 10 May 2022 [3.3.2].
[8] ‘China: 20210810100547 – Children – Church Attendance – Fujian’ Department of Home Affairs Australia, 3 September 2021.
[9] DFAT China Report 2021 above n 1 [5.31]—[5.35].
[10] ‘护照/旅行证简介’, Consulate-General of the People’s Republic of China in Sydney, 8 February 2019, 20191023144732; ‘Introduction to Passport/Travel Certificate’, Consulate-General of the People’s Republic of China in Sydney, 8 February 2019, [Google Translate].
Nationality
The applicant claims to be a citizen of China. He provided a copy of his passport to the Department. The Tribunal finds that the applicant is a citizen of China. The Tribunal has assessed his claims against China as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s 36(2)(aa).
Does the applicant have a well-founded fear of persecution?
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involves assessing the credibility of the applicant’s claims. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
The Tribunal has considered all the information and evidence provided by the applicant.
Findings and reasons
The Tribunal has concerns about the applicant’s claims to be a committed Christian. The concerns include his oral evidence in relation to his commitment and why his religion is important to him, his migration history and the previous fraudulent documents provided by him to the Department.
The applicant claims that he came from a Christian family who were practising outside the confines of the official church in China. He claims that they were at risk of persecution due to their beliefs.
The applicant’s knowledge of Christianity was vague and prone to generalisations. The Tribunal offered many opportunities to discuss his faith. The Tribunal finds that his focus is to stay in Australia and continue to work. He has started a family, purchased property, and is working in Australia. While the Tribunal may have some sympathy for his aims to continue to benefit from his life in Australia, its task is to consider whether he fits the criteria for a Protection or Complementary Protection visa.
He could not convincingly explain why he was not baptised until he was in Australia in 2016, his migration history, and his timing of discovering God and Christianity after his efforts to stay in Australia were exhausted indicate that his main objective is to secure the migration outcome, he desires for him and his family.
His evidence in relation to any practise of Christianity in China and Australia was unpersuasive and changed. He could not give any convincing evidence in relation to why he was attached to any particular branch. He gave a generalised response that he wants to go to heaven and be with his parents and family. He did not present as someone who was committed to Christianity. In his oral evidence he stated that he was not allowed to attend a house gathering as a child. He then changed his evidence to state that he did attend house gatherings as a child, later he presented evidence that his family home had been seized due to church gatherings taking place there. After the hearing, he provided further evidence in which he claimed a priest started a branch of Christianity with his family. This is a significant change from his first evidence that he was not allowed to attend church or gatherings to his family home being seized as it was a gathering place for services to take place.
The applicant could not adequately explain why he was not baptised until 2016 given his evidence is that his family are so committed, they have come to the attention of the authorities in Fujian province, been detained, and lost their home.
He claims that after his final Ministerial application failed in 2016, his parents told him that they were nearly detained, that he would be at risk if he returned to China due to their Christian beliefs. He claims they did not previously tell him about their concerns as Chinese parents don’t share bad news with their children.
The applicant claims that his younger brother has been detained once he returned to China. He provided documents which look like a template stating his brother was detained in 2022 when he returned to China from [Country 1]. The applicant’s younger brother was allowed to leave China in 2019 to study in [Country 1] and received a certificate of his study. The applicant’s evidence is that his parents had already come to the attention of the authorities in 2016 and had suffered before that but had not shared their concerns with him. The Tribunal does not accept that if this was the case his younger brother would have been able to leave China in 2019 to study. The Tribunal finds that due to China’s strict exit and entry procedures anyone who was of such interest to the authorities that they had already serious concerns about their safety would not have been able to organise an exit visa for their son.
The Tribunal discussed with the applicant that although he claims to have attended church in Australia regularly and participated in activities no letters of reference were provided by a Pastor. He responded that his church did not provide letters. After the hearing the applicant provided a statement, he claims is from a former priest of the official church in China, Three-self Church. The statement is dated 8 July 2023. It refers to a policy of the ‘Religion of Chinese Features’ or the ‘sinicisation’ of Christian churches in China. The letter does not provide a timeline of how long the author has known the applicant’s family. The letter is of a general nature and talks about the priest leading the family to set up their own family church.
The applicant’s evidence is that his family were being targeted in 2016 before the sinicisation policy was implemented. Setting up their own church with the assistance of a Three-self churches priest is not something which is referred to in his earlier statements or evidence. The applicant provided a photograph of a home with a sign attached. There is little to identify the home and nothing to indicate that it was the family home of the applicant.
The photograph of the applicant’s younger brother’s expired passport of itself does not add much to the evidence. The copies of claimed detention and release certificates have the appearance of templates. One of the templates has mistakes as to dates.
At hearing, the applicant at first stated he attended church regularly in Australia since he arrived. He then stated he attended since 2014 in his statement to the Department he said 2016. He stated that he was not provided with a passport by the authorities. Later he stated that his passport expired; when queried, his evidence was that he was spoken to rudely.
The above concerns are minor when looked at on their own. However, when weighing up the totality of evidence before it, the Tribunal finds the applicant has been untruthful in his evidence in relation to fearing persecution in China.
The Tribunal discussed with the applicant that he had been previously found by the Department and Tribunal to have provided false documents to the Department in relation to his student visa and asked why the current documents he provided should be accepted by this Tribunal. He asserted that they are all genuine and that he has not previously supplied false documents.
The Tribunal prefers to accept the findings of the delegate and previous Tribunal that false documents were provided.
The Tribunal discussed with the applicant that it had concerns with the documents provided as one of them seems to have incorrect dates on it. He did not respond in any way which was logical except to say he did not know. The Tribunal discussed with the applicant independent information that fraudulent documents are easy to obtain in China. The Tribunal finds that the applicant was previously willing to mislead the Department and Tribunal to secure the migration outcome he desired and is satisfied he will do so again.
The Tribunal does not accept that his parents or younger brother were detained, that the family home was seized, that the family set up their own family church with a former priest of the Three-self Church or that he has been denied a Chinese passport by authorities. The Tribunal finds that the documents provided have been manufactured to enable the applicant to secure a permanent visa to stay in Australia.
The Tribunal does not accept that the applicant’s commitment to Christianity is such that he would return to China and risk coming to the attention of authorities by attending underground church activities or proselytising. In Australia the applicant’s evidence is that he has attended mainstream church services such as Baptist church.
The Tribunal accepts that the applicant may have participated in some church activities in Australia and posed in photographs. However, it finds that if he did participate, it was to strengthen his claim for a Protection visa and because he was able to mix within his own community and enjoy the social aspects of it. He claimed there were practitioners from Fujian who attended his church with him, however, no references or evidence was produced.
There is no evidence that if he returned to China he would proselytise or could not attend an official church. His evidence in relation to why he had to attend a house church was vague and unconvincing.

100. Fujian province country information indicates that Fujian is more tolerant than other provinces and has more liberal views on religion. Many millions of Christians live and practise their religion there.
101. The applicant has attended a mainstream Chinese church in Australia and the Tribunal is satisfied he could attend an official church in China if he so chose.
102. The applicant at hearing claims that the Chinese authorities refused to issue him with a new passport. He supplied a copy of his expired passport. His oral evidence was confusing. At first, he said he presented for a new passport before his old passport expired. When the Tribunal put to him that in his statutory declaration, he stated that he was refused one as his passport had expired, he said he did not know about this. He then changed his evidence to say that during Covid the consulate was closed, and he received no response.
103. The Tribunal does not accept that the Chinese authorities are refusing to issue the applicant with a new passport due to any concerns they may have about his religion or that he will be a risk to national security. The Tribunal has considered country information set out above and finds that the applicant could be issued with a travel document which enables him to return to China as a Chinese citizen and apply for a new passport in his hometown.
104. On the evidence before it, the Tribunal does not accept that the applicant’s younger brother would be denied a new passport due to his religion, implied religious activities, or his parents’ religious activities.
105. The Tribunal after considering all the evidence before it, including the applicant’s migration history and delay in lodging an application for protection finds that the applicant lodged an application for protection, after the applicant’s previous attempts to secure residency were exhausted in order to achieve a visa to stay in Australia and he does not hold a genuine fear of serious harm.
106. After considering all the evidence before it, the Tribunal is not satisfied that the applicant is at risk of harm due to his family including his younger brother being committed members or founders of any underground church. The Tribunal does not accept that the applicant would put himself and his family at risk of harm due to any commitment to the underground/local church.
107. The Tribunal is not satisfied that the applicant is of interest to the Chinese authorities due to practising Christianity. Further, for the same reasons the Tribunal is not satisfied that the applicant is at risk of harm due to any perceived association to or with his family in China.

108. The Tribunal, on the evidence and information provided, does not accept that the applicant will be deprived of his basic human rights for any of the reasons claimed if he returns to China. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he goes to China now or in the reasonably foreseeable future.
109. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his membership of a particular social group, religion or any other grounds under the Refugees Convention if he goes to China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined. Accordingly, the Tribunal finds that he does not satisfy the criterion in s 36(2)(a).
Does the applicant meet the complementary protection criteria?
110. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.
111. A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
112. ‘Significant harm’ for these purposes is exhaustively defined in the Act. 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.
113. Section 36(2)(aa) of the Act refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
114. The applicant made a generalised claim that he is used to living in Australia and will be deprived of social systems and freedom if he returns to Australia. His family are Chinese citizens. They have close family in China, and he communicates with his family in China. The applicant’s main language is Mandarin. The applicant in Australia socialises within the Chinese community. The Tribunal finds that that he and his family in Australia has a strong connection to China. The Tribunal is not satisfied that there is a real risk the applicant would suffer any of the kinds of significant harm set out above, including any discrimination or mental torment due to returning to life in China.
115. For reasons given above in relation to ‘real chance’, the Tribunal is not satisfied there is a real risk of any of the kinds of significant harm set out in s 5(1). The Tribunal is not satisfied 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 he will suffer significant harm. He, therefore, does not satisfy s 36(2)(aa).
116. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
117. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
118. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Catherine Carney-Orsborn
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.
…

[2023] AATA 3602

1 August 2023

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