1729685 (Refugee)

[2022] AATA 3944

1729685 (Refugee) [2022] AATA 3944 (27 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Harry Huang

CASE NUMBER:  1729685

COUNTRY OF REFERENCE:              China

MEMBER:Senior Member G.A.F. Connolly

DATE:27 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal directs that the applicant satisfies s 36(2)(aa) of the Migration Act and remits this matter for reconsideration in accordance with this statement of decision and reasons.

Statement made on 27 September 2022 at 11:21am

CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – prominent member of the Local Church /the Shouters – sincere and genuine faith – evangelical activities – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

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

1. This is an application for review by [the applicant] of a decision made by a delegate of the Minister for Immigration and Border Protection on to refuse to grant her a protection visa under s 65 of the Migration Act 1958 (CTH) (Migration Act).

2. The applicant was born in the People’s Republic of China, is a citizen of China, and she is, at present, [age] years of age.

3. The applicant has a husband and [number] children living in Fujian, China. It is unclear on the materials before the Tribunal what, if any contact, the applicant has with them.

4. The applicant lived in [Country 1], from September 2007 until January 2011.

5. The applicant arrived in Australia [in] Feb 2017.

6. The applicant applied for a protection visa on 22 March 2017.

7. The delegate of the Minister for the former Department of Immigration and Border Protection refused on 14 November 2017 to grant a protection visa to the applicant on the basis that the applicant did not genuinely fear persecution for reason of her Christian religion and did not risk suffering significant harm and for these reasons should return to China.

8. The applicant applied to this Tribunal on 27 November 2017 for review of the decision to refuse her the grant of a protection visa.

9. The applicant was represented in relation to her application to this Tribunal for review.   The materials submitted by the applicant to this Tribunal to assist in the review of her case included:

   a.her Statutory Declaration made 22 March 2017;

   b.her Statutory Declaration made 07 November 2017; and

   c.her Submissions dated 12 July 2022 and filed 13 July 2022.

The Statutory Declarations annexed significant amounts of evidentiary materials going to the applicant’s religious faith, her religious practices, and numerous references in support of her claim from her fellow churchgoers.

1. [Mr A], who is an elder or Responsible Brother in the Local Church, which is a church of Sydney’s Chinese Christian community, swore a Statutory Declaration (made 21 July 2022) in support of the applicant.

2. The matter was heard in Sydney on 19 July 2022.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant appeared in person and was represented.  [Mr A] also provided evidence in support of the applicant’s claims.

Criteria for a protection visa

1. The criteria for the grant of a protection visa are set out in s 36 of the Migration 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, relevantly, she or he 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.

2. A person is a refugee if, in the case of a person who has a nationality, she or he are outside their country of 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, she or he is 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).

3. Under s 5J(1), a person has a well-founded fear of persecution if she or he 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.

4. 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

1. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

2. The hearing before this Tribunal is a hearing de novo and not an appeal, strictly speaking, at least not an appeal to any court. The matter before the Tribunal is heard and determined afresh, on the material that is placed before the Tribunal, and the Tribunal is not bound by any previous decision of the executive government. The Tribunal stands, rather, in the place of the original decision maker, with the power to affirm, vary, or set aside, and decide in substitution or remit a decision under review with the Tribunal’s directions or recommendations: s 43(1) of the Administrative Appeals Tribunal Act 1975 (CTH) (AAT Act).   The Federal Court in Drake v Minister for Immigration and Ethnic Affairs said this of the Tribunal’s task:

   The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.[1]

CONSIDERATION OF Claims, evidence AND FINDINGS

[1] (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

The Applicable Law

1. In considering whether there is a real risk that the applicant will, indeed, suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to China, the Tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion: s 36(2)(aa) of the Migration Act.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that the claim is made for the reason(s) stated.  Similarly, just because an applicant claims she or he faces a real risk of significant harm does not establish that such a risk exists - or that the harm feared amounts to ‘significant harm’. It is the duty of the applicant to satisfy the Tribunal that all statutory elements of the claim are made out by the applicant’s case. A decision-maker cannot make the applicant’s case for her or him. It is the responsibility of an applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Migration Act.  Nor is the Tribunal required to accept uncritically any allegations made or history narrated by an applicant.[2]

   [2] MIEA v Guo (1997) 191 CLR 559 at 596 per Kirby J.

3. The issue in this case is whether the applicant has proved she has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that she will suffer significant harm: s 36(2)(aa) of the Migration Act. 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.

The Facts

1. The applicant was born in Fujian Province, China, on [date].  It is common ground that the applicant’s husband and children live in Fujian Province at present.

2. In 2012, the applicant’s evidence is that she joined the Shouters church (some consider it a Christian sect[3]), and she was baptised into the Christian faith at some time in June 2012.

   [3] I consider it unnecessary to decide this issue of church versus sect.

3. Since 2012, the applicant says she has been very active in the Shouters sect, particularly working with female church members.

4. In approximately June 2014, the applicant says she was directed by the Shouters church to act as carer for a [Brother B], who was [age] years of age and a leader in the Shouters church.  The applicant says that [Brother B] directed her to establish youth meetings in Fujian of the Shouters church.  The applicant said that, in order to avoid the adverse attention of Chinese state authorities, these youth meetings were advertised as English classes.[4] 

   [4] Applicant’s Statutory Declaration made 22 March 2017 at [7]-[9].

5. At some time in the period 2014-2016, [Brother B] directed the applicant to establish connections between the Shouters church and Christian churches elsewhere in the world.  In the period May 2016 to August 2016, the applicant travelled to [Country 2], [Country 3], and [Country 4], where she made further relationships with other Christian churches and communities. [5] 

   [5] Applicant’s Statutory Declaration made 22 March 2017 at [10].

6. In April 2016, [Brother B] passed away.[6] 

   [6] Applicant’s Statutory Declaration made 22 March 2017 at [9].

7. On 21 October 2016, the applicant lodged an application for an offshore Work and Holiday subclass (US462) visa.

8. On 22 November 2016, the applicant was granted an offshore Work and Holiday subclass (US462) visa to enter Australia.

9. On [date] February 2017, the applicant arrived in Australia on her offshore Work and Holiday subclass (US462) visa.

10. From sometime around mid-March 2017, the applicant says her husband in Fujian, China, was being investigated by Chinese authorities for the applicant’s activities. [7] 

    [7] Applicant’s Statutory Declaration made 22 March 2017 at [13].

11. On 22 March 2017, the applicant lodged an onshore Protection subclass (XA866) visa application.

12. On 14 November 2017, the Minister’s delegate interviewed the applicant.  The delegate was not satisfied that the applicant was a refugee or was owed complementary protection and refused to grant her any protection visa.

13. On 27 November 2017, the applicant applied to this Tribunal for review of the decision to refuse her the grant of a protection visa.

The Applicant’s Evidence

1. The upshot of all of the evidence and supporting information placed by the applicant before the Tribunal in support of her claim was and is: that the applicant is owed protection obligations by Australia, that she was and is a practising Christian, that her work is and has been that of an evangelist, that she was and is a prominent member of the Local Church denomination with a profile both in China and in Australia, and that her church membership and activities means she has a well-founded fear of persecution, should she be returned to China.

2. On attending the Tribunal for the hearing of this case, the applicant presented as a sincere and practising Christian. Under questioning, the applicant discussed, in detail, her membership of the Local Church and what her church means to her, both as an individual believer and as something now of a leader in that church. The applicant’s Biblical knowledge, as well as her expression of foundational Christian doctrine (i.e., those doctrines commonly shared among Catholic, Protestant, and Orthodox denominations) was of a good standard.  It was clear that the applicant was sincere in her Christian beliefs and that she had thought deeply about them.  It was also clear that she could discuss her Christian beliefs with great enthusiasm and at some considerable length. The applicant’s discussion of her Christian beliefs was sincere and comprehensive. It was clear that that the applicant’s faith and particular doctrinal beliefs do not equate directly to a major Christian denomination but, overall, they do resemble an evangelical Christian set of beliefs, even if these are not beliefs that are particularly well organised, in the Western sense of historic Protestantism.

3. After extensive and repeated questioning, it became clear to the Tribunal that the applicant had a sincere and committed faith.  It also became clear that the applicant wants to share her Christian faith with non-Christians.  The applicant expressed her clear and repeated fear, however, that if she was returned to China, she would suffer significant harm, as her Christian beliefs were and are not those held by the registered state churches. The applicant was particularly insistent that her church, the Local Church, was not state-approved and was instead what the Chinese authorities would term a ‘house church’ or unregistered church.  I discuss this issue, and its relevance to the harm the applicant may or would be subject to, below. There can be no doubt, however, of the sincerity of the applicant’s fears for her safety should she be returned to China.

4. The applicant’s evidence was and is that she was directed by [Brother B] and she was:

   “… was obligated to fulfil his dying wish - to assist the Local Church in China to set up close connections to the entire world so that our Local Church could go with the tide of international development. Hence, I firstly travelled to [Country 2] and [Country 3] between May and June 2016, and then to [Country 4] in August 2016. In the end, I applied for a work and holiday (temporary) (class US) (subclass 462) visa to Australia from November 2016. 1 expected to spend about one year in Australia and could easily travel to and fro[m] between China and Australia during this period. I [sic] really eager to have more opportunities to assist the Local Church in China to develop closer connections with Australia. Furthermore, I originally planned to go back to China during Easter holiday around middle of April 2017 in order to visit my husband and children and share my church life in Australia with church brothers and sisters in China.”[8]

There was repetition by the applicant of her belief that she was following the missionary instructions of the late [Brother B].

[8] Applicant’s Statutory Declaration sworn 7 November 2022 at [3].

1. The sworn evidence provided by the witness called in support of the applicant, [Mr A], helped to further substantiate the applicant’s case.  The witness was questioned separately from the applicant.  [Mr A] is a Responsible Brother in the Local Church - an office which might be best likened to that of a lay elder in church in the Protestant Reformed tradition. [Mr A]’s evidence assisted in providing a better understanding of the history of the Local Church and how it was founded, as well as what [Mr A] says was its presence in [number] districts in the greater Sydney area.[9]  [Mr A]’s evidence was also to the effect that he had known the applicant since February 2017 through the Chinese Christian community. In [Mr A]’s view, the applicant is a very energetic and committed member of the Local Church community.  The applicant is, [Mr A] said, a very active participant in the religious life of the Church.  The applicant has been attending the [Location 1] church meeting regularly, as well as helping with the hospitality, cleaning, and meal preparation, which are ‘good works’ that go along with Local Church membership.  The applicant has also been involved in training seminars and conferences of the Local Church, in Sydney, Adelaide, and the Gold Coast.

   [9] Letter from [Mr A] dated 26 June 2022.

2. Both the evidence of the applicant and [Mr A] contained numerous letters of reference as well as numerous photographs, going back some years, of the applicant’s church work in Sydney.

3. Accordingly, the Tribunal accepts that the applicant is a sincere and believing evangelical Christian, with what seems a passionate desire to spread the message of her faith.

The Shouters Church

1. As stated above, the applicant’s professed form of Christianity can be identified as falling within the general boundaries of evangelical Protestantism. However, the applicant is a member of the Local Church, which in China, is also known as “the Shouters”. 

2. In October 2005, the former Refugee Review Tribunal’s Country Research Service prepared a research paper on the Shouters.[10] It is important to note that, as Human Rights Watch was quoted in that October 2005 research paper as saying, the following:

   The Shouter creed is evangelical, mystical, subjective, intuitive, apocalyptic, and individual. According to Shouter literature, believers reject any human thought that goes beyond what the Bible says because they consider it the completed divine revelation. Thus, Bible reading is central to religious practice, and it is the duty of every Shouter to go out and preach the gospel to relatives, neighbors, friends, and colleagues. The Shouters then “nourish” the converted by visiting their homes regularly and leading them in Bible reading, singing, and prayer. Members meet in small groups with neither “appointed speakers or teachers.” Anyone moved to preach can, although it is usually the already recognized leaders, or elders, who do so. There is no professional ministry, and each local group is autonomous. Congregants meet clandestinely in each others’ homes; hence they are categorized with other Protestants who resist association with the official Chinese Christian Church, as “house church” members.

   [10] Refugee Review Tribunal, RRT Research Response Number CHN7561, dated 7 October 2005.

3. In October 2019, the DFAT report on China said this[11] in relation to the status of the Shouters as a persecuted religious sect:

   3.93 The Criminal Law provides for prison sentences of up to seven years for individuals who use superstitious sects, secret societies, or evil religious organisations to undermine the state’s laws or administrative regulations. 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 idea, and endangering society’. While the criminal provisions principally target Falun Gon, others who engage in practices deemed superstitious or cult-like can face harassment, detention, and imprisonment.

   3.94 In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’ (cult) and launched an anti-cult platform on social media called ‘Say No to Cult’, which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, eastern Lightning (also known as the Church of Almighty G-d), 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 G-d, Dami Mission, the new Testament Church, the World Elijah Gospel Mission Society, the Lord G-d Sect, the Yuandun Dharma Gate, and the South China Church.

   3.95 Local 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.

   (Emphasis Added)

   [11] DFAT Country Information Report: China 3 October 2019

1. In December 2021, the DFAT report also said this in relation to the Shouters:[12]

   [12] DFAT, Country Information Report: People’s Republic of China, dated 21 December 2021, at [3.71]-[3.74].

   The Local Church (Shouters)

   3.71 The term ‘Local Church’ refers to descendants of a Christian-based religious movement from the 1960s. They are often referred to as ‘Shouters’, which refers to the loud and energetic worship practices of the various groups. The group has experienced multiple splits and schisms and groups collectively designated as ‘Shouters’ may be diverse and have little or nothing to do with each other. The term ‘Shouters’ is sometimes used as a pejorative by critics or the government. Members of these groups may not call themselves ‘Shouters’, instead using ‘Local Church’ or ‘the Assembly’.

   3.72 DFAT understands that Shouters are not as actively pursued in China as they once were. They may not, in practice, be considered or treated as a xie jiao. DFAT understands from sources that they may have been delisted as a xie jiao but different sources offer conflicting information. In Chinese-language internet searches, DFAT found a 2020 reference in the Chinese press that quoted Xining (the capital of Qinghai in Western China) police as saying that the Shouters ‘pretend to be Christianity’ (which is consistent with other anti-xie jiao messaging) and clearly states that Shouters are illegal.

   3.73 Bitter Winter, a website critical of the Chinese Government, published an article in May 2021 that notes a ‘continuing’ crackdown in Beijing, Jiangsu and Guangxi. The article quotes American scholar J. Gordon Melton who claims that groups that accept the teachings of founder ‘Chairman Nee’ (in Chinese, ‘the Old Local Church’) are not a xie jiao but those groups who recognise the teachings of later leader ‘Watchman Lee’ or ‘Witness Lee’ (in Chinese ‘Local Church’ or perhaps ‘New Local Church’) are a xie jiao. DFAT is unable to confirm whether this is correct but understands that distinctions between different groups may not be well understood by authorities and arrests of either group should not be ruled out.

   3.74 People identified as ‘Shouters’ are a diverse range of groups of Protestant Christian origin that may be indistinguishable from other small Protestant groups and may have no resemblance to other groups of the same origin. See the assessment for Protestant Christians. Whether or not they see themselves as ‘Shouters’ is not as relevant as whether they are perceived to be ‘Shouters’ by authorities. The term is understood and applied regardless of self-identification of adherents. Therefore, a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination. Local Church members do not attract the same amount of attention as Falun Gong or The Church of Almighty God, but DFAT notes inconsistent sources and information. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment under the same provisions of law as other xie jiao.

2. It seems obvious, then, that a member of the Shouters, if returned to China, is at substantial risk of imprisonment, particularly as their vulnerability to targeting by Chinese authorities relies less on anything that a particular Shouter church member may do than whatever is the view, especially a punitive view, that will be taken of them by Chinese authorities. It is clear that registered churches will be treated much differently and much less harshly by the Chinese state authorities than those churches that are unregistered and/or which meet as ‘house churches’.

Does the Applicant have a well-founded fear of persecution?

1. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[13]

   [13] Section 5H(1) of the Act.

2. The Tribunal must determine whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

3. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Migration Act. Its elements provide that a person has a well-founded fear of persecution if:

• the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

• 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 above; and

• the real chance of persecution relates to all areas of a receiving country.

Does the Applicant fear being persecuted for one of the stated reasons?

1. Section 5J(1)(a) of the Migration Act requires that the person ‘fears being persecuted’ for one of the stated reasons.  This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

1. The Tribunal is most satisfied that the applicant fears being persecuted for reasons of their religion.

Is there a real chance of serious harm if the Applicant returns to China?

1. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Migration Act, provides an objective element to that concept - not only must a person fear persecution, there must also be a prospect of that fear being realised.

2. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan[14] as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Migration Act.[15]

   [14] Chan v MIEA (1989) 169 CLR 379 at 389 per Mason CJ and at 406 per Toohey J.

   [15] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

Risk Of Harm?

1. The reports by DFAT state that China is home to millions of Christians, a significant number of who practise in state-sanctioned churches. The position of those Chinese citizens who live and practice as Christians in underground or house churches – which are conducted in private homes or private meeting places, and which are not recognised or sanctioned by the Chinese government – is more precarious and far more prone to persecution by the Chinese state apparatus, especially, as noted above, with respect to the Shouters church.  Within the Christian community in China, there are significant differences between the registered churches and the unregistered/house churches, such as the Shouters.  It is wrong to assume that just because Chinese authorities may consider Catholic or major Protestant denominations as safe to be allowed to practice their religion, that the same tolerance or arrangements either may, or will, apply to an unregistered/house churches, especially a church as reviled as the Shouters have been.

2. The DFAT Country Information Report of December 2021, referred to above, provides the following information regarding the status of Christians in China:

   3.28 Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.

   3.29 Authorities have regulated Christianity to make it more ‘China-oriented’. 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. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.

   3.30 .. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.

3. The DFAT assessment is that members of unregistered/house churches who participate in human rights activism are at high risk of official discrimination and violence, as, also, are their families. While DFAT may assess the adverse attention relating mainly to their activism and association with unregistered (and illegal) organisations, rather than specifically a Christian faith, the reality is that house/underground churches already risk being termed as ‘xie jiao’ (commonly referred to as ‘evil cults’ but also understood to translate to ‘heterodox teachings’).  To the degree that a house/underground church rejects the registered church in favour of a church that aligns with an evangelical interpretation of the Bible, then these parishioners (such as the applicant) clearly risk persecution as well as prosecution. China’s criminal code does provide 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[16] 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’.[17] While the criminal provisions may now principally target Falun Gon, others who engage in practices deemed superstitious or cult-like are liable to face harassment, detention, and imprisonment.  These risks are clearly and obviously shared by house/underground churches – especially members of the Shouters churches. 

   [16] China's Law On Heretical Cults (8 October 1999).  Explanations of the Supreme People's Court and Supreme People's Procuratorate concerning laws applicable to handling cases of organizations and employing heretical cult organizations to commit crimes (Adopted at the 1079th Meeting of the Judicial Committee of the Supreme People's Court on 9 October 1999 and at the 47th Meeting of the Ninth Procuratorial Committee of the Supreme People's Procuratorate on 8 October 1999)

   [17] Council on Foreign Relations, Religion in China, dated 25 September 2020.

4. In this most recent DFAT report, it was notable that difficulties were and are already faced by registered churches, including in how they obtain true and accurately translated Bibles and holy books, and whether their members can wear Christian symbols, and whether registered churches can display visible symbols such as crosses. That it is China’s registered churches which are undergoing this degree of further regulation and policing by the Chinese authorities, suggests that the existence of unregistered and house churches is a most precarious one, especially for one viewed by the Chinese state with open hostility, such as the Shouters.  Some churches have had their electricity service disconnected and been evicted by landlords from church buildings, at the direction of the Chinese state authorities.[18]  In addition to registered churches, these unregistered or house churches, too, form part of a parallel network of unregistered churches. However, these churches, if only for security purposes, do not belong to any Catholic, Protestant, or Orthodox, hierarchal and denominational structures. The explanation for the Shouters and other churches not having officially published structures and hierarchies for churches that are not state-sanctioned – and which can thus be surveilled and infiltrated by Chinese security and police services - is an obvious one.

   [18] DFAT, Country Information Report: People’s Republic of China, dated 21 December 2021, at [3.33].

5. Further, it is notable in the DFAT reporting that the Chinese government has made efforts in recent years to better surveil and control both the registered and unregistered (house/underground) churches across China, including targeting those churches so as to have their distinctive crosses removed.  Church buildings have been demolished. Congregations and pastors have been surveilled and imprisoned (of all denominations).  The position of churches in China is to either accede to pressure to ‘Sinicise’ or they must find new and inventive ways to avoid scrutiny. [19]

   [19] DFAT, Country Information Report: People’s Republic of China, dated 21 December 2021, at [3.24].

6. The increased Chinese government sensitivity over foreign influence in China creates clear difficulties for parishioners and the supporters of the house/underground churches to travel abroad, particularly for religious fellowship and to attend church events, of the kind that any church and its pastors would do in Australia. It is likely that anyone who takes a visible, or even invisible role, in a church like the Shouters is inevitably going to attract the attention of the Chinese state and risk persecution, if not prosecution and imprisonment.

FINDINGS

1. On the evidence before it, the Tribunal is well satisfied that the applicant is a member of the Shouters’ church and that she is an evangelical Christian.  The Tribunal is well satisfied the applicant would suffer - or could very likely suffer - harassment, discrimination, threats of arrest or any other form of harm in the past for reasons related to her Christian faith and her membership of the Shouters church, should she be returned to China. The Tribunal is well satisfied that this applicant is now or will come to be of adverse interest to the Chinese authorities for these reasons.

2. While the applicant did not leave China because she was experiencing religious persecution, she did, on the evidence before the Tribunal, leave China because she wanted to evangelise as a Christian and as a member of her Shouters church.  The Tribunal accepts that it is very likely she will experience religious persecution and risk significant harm as a members of an underground Christian community, such as the Shouters church.

3. It follows that, on the information presented to the Tribunal during the preparation and hearing of this claim, that the Tribunal is well satisfied that the applicant faces the real chance of suffering serious harm or significant harm in China from government authorities/police for reasons of her particular religious faith.

4. For the foregoing reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and she satisfies the criterion set out in s 36(2)(aa).

decision

1. The Tribunal directs that the applicant satisfies s 36(2)(aa) of the Migration Act and remits this matter for reconsideration in accordance with this statement of decision and reasons.

Statement made on 27 September 2022 at 11:22am

Graham Alfred Frederick Connolly
Senior Member
Administrative Appeals Tribunal