1729817 (Refugee)

[2020] AATA 1547

1729817 (Refugee) [2020] AATA 1547 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729817

COUNTRY OF REFERENCE:                   China

MEMBER:Louise Nicholls

DATE:20 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2020 at 3:40pm

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – membership and activity in Roman Catholic church in Australia – original motivation as basis for claim for protection, but later genuine commitment – friend and father in China arrested, questioned and threatened – country information – status of Roman Catholics in China – registered and unregistered churches – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 425, 438(1)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), ss 19A(1), 19D(4)

CASES
MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims he is a citizen of the People’s Republic of China (China) and is [Age] years old. He claims he was born in Fuzhou, Fujian Province, China. [In] January 2008 he arrived in Australia travelling on a Chinese passport with an Australian student visa.

2. The applicant applied for a protection visa on 23 October 2013. The applicant attended an interview at the Department of Immigration on 3 March 2014.

3. On 7 October 2014 a delegate of the Minister for Immigration refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa. The applicant has sought review from the Tribunal.

   Procedural history

4. The applicant sought review of the delegate’s decision at the Refugee Review Tribunal (RRT) on 23 October 2014.

5. The Tribunal, differently constituted (Tribunal 1), affirmed the delegate’s decision on 26 November 2015[1]. [In] March 2016 the Federal Circuit Court ordered, by consent of all parties, that the decision of the Tribunal be quashed and the Tribunal was directed to determine the application according to law. The Minister conceded that the Tribunal had failed to consider the applicant’s claims, or all integers of the claims, that he would face serious or significant harm in China due to his involvement in an underground church.

   [1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any applications on foot with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.

6. The matter was remitted to the Tribunal and the Tribunal, differently constituted (Tribunal 2), affirmed the delegate’s decision on 1 August 2016. [In] November 2017 the Federal Circuit Court found that that Tribunal 2 had failed to disclose the existence of a certificate pursuant to s.438 of the Act. The court found that the failure to disclose the material covered by the certificate may have resulted in the applicant losing an opportunity to advance his case and may have resulted in a practical injustice.

7. The matter is before the Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

8. The applicant attended hearings before Tribunal 1 on 30 September and 18 November 2015 and a hearing before Tribunal 2 on 26 July 2016. The hearings have been transcribed and the Tribunal has considered the material in those transcripts together with all the other evidence before it.

9. The applicant appeared before the current Tribunal on 15 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The Tribunal explained the reasons for remittal and reconsideration and indicated that the evidence given to Tribunal 1 and Tribunal 2 could be taken into account in the review. The Tribunal took further evidence from the applicant on his background, his claims and his current circumstances.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    What material has been provided by the applicant?

12. The applicant made an application for protection on 23 October 2013. He set out his claims for protection in the sections asking him his reasons for claiming protection.[2] 

    [2] Form 866 Answers to Questions 43 to 48 ff 15-18.

13. On 5 March 2014 he provided documents to support his application, including:

    ·Photocopy of the applicant’s Chinese passport issued [in] 2007.

    ·Certificate of Baptism from the [Church organisation 1], [Church], [Suburb 1] dated [December] 2013.

    ·Statement from the Chairman of [Church organisation 2] [March] 2014.

    ·Statement of [named person] dated 27 February 2014.

    ·Photographs of the applicant in various activities.

14. He provided a copy of the delegate’s decision record of 7 October 2014 together with his application for review. He also provided a number of documents, including:

    ·Letter from President [Church organisation 3], [Person B].

    ·Letter from [Person C] and translation – 18 September 2015.

    ·Letter from [named person] and translation – 21 September 2015.

    ·Letter from [named person] and translation.

    ·Letter from [named person] and translation – 22 October 2015.

    ·Letter from [Ms D] and translation – 21 September 2015.

    ·Letter from [Father E], [Church organisation 4] – 10 November 2015.

    ·Flyer ‘[deleted]’.

    ·Web address: [deleted].

    ·Press article – UCA News 22 September 2015

15. After the decision of Tribunal 1 was remitted, the applicant provided further documents to support his application. These included:

    ·Letter from [Person C].

    ·Letter from [Father E] Pastor [Church organisation 3] – [July] 2016.

    ·Letter from [Person B] – [June] 2016.

    ·Color photos of applicant engaged in various activities 18 July 2016.

    ·Several media articles on suppression of internet freedom in China; restrictions on Christian churches in Zhejiang Province, China; restrictions on religious practice in China; report on a missing Chinese bishop in China and planned protests by Catholics against the visit of Xi Jinping to the United States in 2015.

16. After the remittal of Tribunal 2’s decision, the applicant provided further documents to the Tribunal. These included:

    ·Several photographs showing the applicant and others engaged in various activities.

    ·Statutory declaration made by [Mr F] on 16 April 2019.

    ·Statutory declaration made by [Ms D] on 15 April 2019.

    ·Letter from [the] chairman of the [Church organisation 2] dated [April] 2019.

    ·Certificate of baptism and confirmation of [Mr F] (who had been introduced to the Catholic Church by the applicant).

    ·Certificate of baptism and confirmation of [named person] with the applicant named as baptism sponsor.

    ·Letter from President of the [Church organisation 3] dated [April] 2019.

    ·Several media articles relating to the closure of underground Catholic churches in Fujian Province.

    CONSIDERATION

17. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.

18. The relevant law is set out in Attachment A.

19. This matter has been remitted on two occasions. It was first remitted on the basis that Tribunal 1 failed to consider the applicant’s claims, or integers of the applicant’s claims, that he faced harm due to his involvement in an underground church. The matter was remitted on a second occasion on the basis that the Tribunal failed to disclose the existence of a certificate issued pursuant to s.438 of the Act.

    What information can be considered on remittal?

20. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[3] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[4] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

    [3] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

    [4] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

21. In SZEPZ v MIMA, a Full Court of the Federal Court found that, where a Refugee Review Tribunal decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid.[5] The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[6] 

    [5]SZEPZ v MIMA (2006) 159 FCR 291 at [39].

    [6] MZXRE v MIAC (2009) 176 FCR 552 at [5], where North and Rares JJ commented that it would be wrong to suggest that following a remittal whatever had been done by the original Tribunal had to be redone. See also SZNKRv MIAC [2010] FMCA 182 (Raphael FM, 19 March 2010) at [9].

22. The Tribunal is mindful that while it is not necessary to repeat all the steps and procedures taken in arriving at the invalid decision, the Tribunal should generally invite the applicant to a further hearing to discuss any live issues in order to comply with s.425 of the Act.

23. In conducting the review the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous AAT hearings.

    Non-disclosure certificate

24. [In] November 2017 the Federal Circuit Court found that Tribunal 2 had failed to disclose the existence of a certificate restricting disclosure of certain information in the Departmental file. The court considered the material and found the failure to disclose the material resulted in a possibility that the applicant had been denied an opportunity to advance his case.

25. The Tribunal notes that the delegate has placed a non-disclosure certificate on the Department’s file no [Number] pursuant to s.438(1) of the Act. The reason given for the restriction of certain folios is because they ‘contain information relating to an internal working document and business affairs’.

26. The Tribunal has considered the validity of the purported certificate as well as the issue of disclosure.

27. In considering the validity of this certificate the Tribunal has taken into account recent case law on the issue. In MZAFZ v MIBP,[7]  the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[8]

    [7] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [8] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

28. The certificate purports to restrict information in folios 39,40,54,68,71,89,90,102 and104-107 of the file. The Tribunal has considered the information in those folios as set out below.

29. Folio 39 contains a protection visa application validity check list. It notes the date of the application, name of the applicant, the country of origin and notes whether the applicant has provided a residential address, passport photographs, a signature, protection claims, the correct fee, personal identifiers and other administrative details. The checklist notes that the visa application is valid.

30. Folio 40 contains application and identification test details. This sets out the personal identifiers provided, that is a photograph and fingerprints. It also notes the applicant’s acknowledgment that these have been provided and information on safeguarding personal information.

31. Folios 54, 68 and 71 are small slips of paper entitled ‘file attachment’. They state ‘please attach to this file’, presumably to note the receipt of letters from the applicant’s representative. The name of a Departmental officer is included on the slips of paper.

32. Folio 89 contains a superseded Disclosure Decision Checklist which showed there are no restricted documents on the file.

33. Folio 90 contains a MRT-RRT summary. This document notes the history of the applicant’s previous student visa review history. In particular it notes that the applicant lodged his student visa application on 8 October 2012 and his application for review of his student visa refusal on 18 December 2012.

34. Folio 102 contains a letter from the RRT to the Secretary of the Department enclosing a copy of the Tribunal’s decision record 1417460.

35. Folios 104-107 contain administrative documents relevant to the remittal of the application for review, that is, a summary of the reasons, a copy of the orders made on 10 March 2016 and an email advising they were sent to the Department’s compliance area.

36. As discussed with the applicant, the Tribunal is of the view that the certificate on file [Number] is not a valid certificate as its description of the reasons for restriction, that is, that the relevant folios ‘contain information relating to an internal working document and business affairs’ does not properly identify a basis for public interest immunity. There is no suggestion that the documents would harm the nation or public service by disclosure of the material.

    Obligation to disclose information covered by purported certificate.

37. The majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate/notification to the applicant in the review, however, a breach of that obligation will result in jurisdictional error only where the breach is material (that is, the applicant is deprived of the possibility of a successful outcome).[9]

    [9] MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 (Bell, Gageler, Keane, Gordon and Nettle JJ, 13 February 2019) at [2], [29]-[30] and [45] per Gageler, Keane and Bell JJ.

38. The Federal Circuit Court found that Tribunal 2 did not disclose the existence of the certificate and in particular a MRT–RRT case summary document. That document showed that the applicant applied for a student visa on 8 October 2012 and not May 2012 as set out in Tribunal 2’s decision record.

39. The court found Tribunal 2’s failure to disclose to the applicant the certificate and its contents constituted a jurisdictional error. The inconsistency in the date of the lodgement of the applicant’s student visa application raised potential questions over the findings of Tribunal 2. If Tribunal 2 accepted that the student visa was lodged on the later date, it may have led it to be more inclined to believe that the applicant’s conversion to Catholicism was a result of the breakdown of his marriage, or that the applicant was previously unaware of protection visas when he first began to partake in religious activities. The applicant lost an opportunity to put forward information before Tribunal 2 to advance his case and so a practical injustice has arisen. The court found it was not possible to say that the documents subject to the certificate could have had no effect whatsoever on the Tribunal’s decision.

40. At the hearing held on 15 October 2019 the Tribunal told the applicant it had formed the view that the non-disclosure certificate was not a valid certificate, it outlined the nature of the restricted documents and following the hearing it sent a copy of the certificate and affected documents to the applicant.

41. No further submissions were made on the validity of the certificate or the material.

    Background

42. The applicant is [Age] years of age and was born in Fuzhou City, Fujian Province, China. He attended school in Fujian, China. When he attended Middle School he lived at school and only returned home on weekends and holidays.

43. The applicant’s parents divorced when he was quite young and he followed his father. He claimed he had little to do with his mother after his parents divorced and his grandmother cared for him when his father was away on business. He claims he did not have a close relationship with either parent.

44. His father organised for the applicant to obtain a student visa to study in Australia. He arrived in Australia [in] January 2008 as the holder of a student visa. He commenced but did not complete his high school studies. He stopped studying when he was about [age] years old.

45. In February 2008 he met his former wife when they were both working in a [shop]. They formed a relationship in March 2008 and they married [in] February 2009. He claimed he gave up his studies so that he could look after his wife. His wife was studying [at] [a] College. She later found work in [her field].

46. His former wife’s family was from Fujian Province but they had since moved to Xinjiang Province in the west of China.

47. The couple lived together in [two suburbs]. They moved to different addresses in [the second suburb] and the applicant worked in [a workplace] for about two to three years. The applicant believes that his former wife now has permanent residence.

48. In November 2011 the applicant and his former wife separated.

49. The applicant applied for another student visa in October 2012. He told the Tribunal he re-applied for a student visa because he wanted to study and only stopped studying because of the relationship breakdown. The Tribunal asked him to explain why he stopped studying when he married. He claimed that it was traditional in Fujian for the husband to take financial responsibility for the wife and family. He claimed he had to work to pay for his wife’s tuition fees. He claimed he would not have enough money to support his wife if he worked part time and studied. She also wanted him to work full time.

50. His student dependent visa ceased in about December 2012/January 2013 at the time of his divorce.

51. The Tribunal put it to him that giving up his studies may have been disappointing for his family who had paid his expenses for travel to Australia and for his education. He claimed he was willing to sacrifice a lot for his former wife.

52. The Tribunal put it to him that, overall, his conduct might suggest he did not want to study but wanted a pathway for migration to Australia. Once his student application was refused he had a pattern of applying for visas to stay in Australia. He disagreed and claimed that he had intended to study.

    Country of reference

53. The applicant claims he was born in Fujian Province, China and is a citizen of China. He provided a copy of his Chinese passport which was issued [in] 2007. He has consistently claimed that he is of Chinese nationality, he spoke Mandarin fluently and appeared to be familiar with the geography and culture of Fujian Province.

1. Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of China and that China is the receiving country for the purpose of s.36(2)(aa) of the Act.

   What are the applicant’s claims

2. The applicant’s claims are set out in his application for protection made on 23 October 2013. The applicant discussed his claims for protection with the delegate at an interview on 3 March 2014.

3. The applicant gave evidence at hearings conducted by Tribunal 1 and Tribunal 2 and the Tribunal has read the transcripts of those hearings.

4. The applicant gave oral evidence concerning his claims at the Tribunal hearing held on 15 October 2019.

5. Essentially the applicant claims that he is a Roman Catholic and that if he returns to China he will face a real chance of serious and significant harm from Chinese authorities for reason of his religion.

6. He claimed that he returned to China for a visit between July and August 2011 and made contact with two friends in Fuzhou. He learned during this trip that his friends had become Roman Catholics and were members of a Catholic underground church. They encouraged him to become a Catholic but he did not pay much attention at the time.

7. He claimed that as a result of his marriage breakdown in November 2011 he became depressed and in February 2012 he started attending [Church 2] in [Suburb 1] and another Catholic church in [Suburb 2]. He gradually changed and became a Catholic. In May 2012 he returned to China, made contact with his friends, gave them some Christian materials and returned to Australia in June 2012.

8. He claimed sometime after his return to Australia one of his friends was arrested and that during questioning his friend told Chinese authorities that the applicant had given his friends a Bible and a website reference. He also claims his father was questioned and threatened.

9. The applicant also claims he is a committed Catholic, has been attending church in Australia since 2012 and has become an active part of the congregation.

10. The applicant claims if he returns to China he will be arrested and suffer serious and significant harm for reasons of his Catholic religion and because he provided Christian materials to his friends in 2012.

    Assessment of claims and evidence

    Did the applicant attend a Catholic Church and become a member of the congregation in Australia?

11. The applicant stated, and the Tribunal accepts, that he and his former wife married in February 2009 after first meeting when they worked in a retail shop in Sydney early in 2008. They separated in November 2011.

12. In his application for protection he stated that after his divorce he became depressed and in about February 2012 he got to know a faithful Roman Catholic and started attending [Church 2] and a Catholic Church in [Suburb 2].

13. After a visit to China in June 2012 the applicant returned to Australia and regularly attended [Church 2] and the church in [Suburb 2].

14. The applicant provided a number of letters and other documents with his application which relate to his attendance at church as a member of the Roman Catholic congregation. The letters and documents all confirm that he has been attending church, Eucharist celebrations and Bible sharing groups since February 2012. He provided a copy of a baptism certificate and other evidence showing he had been baptised [in] December 2013 and the Tribunal accepts this evidence. The photographs appear to be consistent with this evidence.

15. The information given by the applicant to the delegate regarding his attendance at church was consistent with the claims made in the application for protection and he appeared to be conversant with the beliefs and practices of the Catholic Church.

16. At Tribunal 1’s first hearing the applicant claimed he became a Catholic in February 2012.

17. At Tribunal 2’s second hearing [Father E] gave evidence that the applicant had been attending church since February 2012 and [Father E] observed he was a member of the [Church organisation 3] and appeared to be a genuine Catholic. When asked how he knew the applicant had been coming to church since February 2012 he stated that the applicant had told him he started attending in February 2012 but agreed he had no personal recollection of the date when the applicant first attended. He stated that as well as attending Mass, he was aware that the applicant attended Bible study classes about five to six times during the year.

18. A friend of the applicant’s gave evidence at the second hearing that she came to know the applicant through a mutual friend when the applicant first attended a church in [Suburb 2] in February 2012. She stated he attended two church groups and actively participated in many events. She saw him every week and considered he was a committed member of the Catholic community.

19. The applicant gave evidence relating to his knowledge of Catholic doctrine and practice which appeared to be consistent with a person who had joined the church in or about 2012. The applicant gave evidence that he attended the Catholic Church in [Suburb 2] and in [Suburb 1] each week. He also attended Bible reading sessions in [Suburb 2] and [Suburb 1]. He claimed that he handed out pamphlets outside the church from time to time.

20. At Tribunal 2’s hearing in July 2016 the applicant told the Tribunal that he became interested in Catholicism after his marriage broke down. He explained that he had a friend who was a Catholic and when the applicant told him about his marriage breakdown his friend asked the applicant if he was interested in attending church. He claimed he was not initially interested but his friend told him a story about a person who had been shot with a poison arrow, was advised to go to a doctor but was reluctant to go to a doctor because he did not know the doctor. Tribunal 2 questioned the applicant as to why this story would encourage the applicant to become a Catholic. He stated it intrigued him; he put himself in the position of the person who had been shot and the church as the doctor. After this he gradually became more involved with church activities.

21. The applicant told the Tribunal that he was baptised in December 2013 some 20 months after he started catechumen classes in March 2012. He agreed that it took longer than normal to undertake baptism. He stated he did not think he was good enough before December 2013 to receive baptism. When questioned about his reluctance to be baptised he stated that he still hated his former wife and had many sins and did not think he deserved the love of God.

22. At the Tribunal hearing held on 15 October 2019 the Tribunal asked the applicant about his motivation to join the Catholic Church. It noted that the previous Tribunal Member had concluded that the reason he decided to become a Catholic in 2012 was to provide a basis for his claims for protection. He disagreed and claimed that when his marriage broke down he was very sad after his divorce and this was the only reason he started going to church.

23. When asked why he chose Roman Catholicism rather than going to counselling to provide him with some support he stated that Chinese people do not like to go to counsellors. He stated they preferred to discuss their emotions with close friends. He claimed that a co-worker at [the workplace] was a Catholic, he talked to her about his marriage break up and she encouraged him to go to a Catholic Church. When asked if this person was a permanent resident or a citizen he stated that he would not ask her a personal question relating to her visa status. The Tribunal put it to him that this evidence was inconsistent with his evidence that they had discussed the highly personal matter of his marriage breakup. He stated that he could initiate such discussions but would not ask her questions about her situation. The Tribunal put it to him that it found it unusual that after continuing the friendship for at least seven years he would not know whether she is a citizen or not. He disagreed. The applicant’s representative also submitted that this was not unusual in the context of Chinese culture.

24. He stated that from February 2012 he attended both the [Suburb 2] church and [Church 2] at [Suburb 1] each week. He stated he went to both churches because he thought it would help his situation. He also attended other Chinese church group activities.

25. The Tribunal put it to him that the previous Tribunal Member was concerned at the length of time it took for him to be baptised. He claimed he was reluctant to undergo baptism because he still hated his former wife and he felt that he needed to purify himself before he was qualified to welcome the Lord. The Tribunal put it to him that there was no requirement to be pure and that baptism signifies that a person has become a Christian. He was aware of that but stated faith is a personal matter and that is what he thought at the time. He stated he has been regularly attending both churches each week. He attends [Suburb 1] on Sunday and [Suburb 2] on Saturday evening. He stated that he knew a lot of people at these churches and he had close relationships with fellow churchgoers.

26. He remarried in 2017. His wife is not a Catholic but goes to church with the applicant. They married in a small Catholic chapel in [Suburb 3] and a Catholic priest performed the ceremony. He and his wife received pre-marriage advice and his wife filled out a form. They married in [Suburb 3] because his wife liked the appearance of the chapel.

27. The applicant’s wife is a student and is currently [studying]. She has a student visa. The applicant is working in [Work sector].

28. The applicant has provided several statements and letters from members of the Catholic clergy and fellow churchgoers. He has also provided many photographs showing the applicant apparently involved in church activities.

29. The Tribunal has considered the evidence given by the applicant and other evidence from witnesses and accepts that the applicant has been attending a Catholic Church in [Suburb 1] and [Suburb 2] since about February 2012. He appears to be conversant with Catholic doctrine and beliefs and has not only attended church but has engaged in other church activities such as Bible study groups.

30. He has provided statements and church documents showing that he has introduced two friends to the church and was a baptism sponsor for one of his friends.

31. The Tribunal does not accept that the motivation for the applicant’s attendance at the Catholic Church in 2012, his baptism in December 2013 or his participation in other church activities was because of his sadness following the breakdown of the applicant’s marriage in November 2011.

32. The Tribunal has considered the timing of his conduct and finds that the original motivation for attending church was to provide a basis for his claims for protection. His first attendance at church took place shortly after the applicant’s short term marriage ended and he was no longer eligible for a student dependent visa. His baptism took place in December 2013, shortly after he applied for protection in October 2013 and following the refusal of his student review application in September 2013. The Tribunal does not accept his reasons for delaying his baptism after he attended catechumen classes. It found that explanation was insincere and shallow.

33. Notwithstanding the Tribunal’s findings about the applicant’s initial motivation for joining a Roman Catholic congregation in 2012 and his involvement in church activities since then, the Tribunal accepts that that the applicant has regularly attended church since February 2012, has been a regular participant in church activities and is regarded by his friends and members of the clergy as a genuine and committed Catholic.

    Did the applicant provide Christian materials and information to friends during a visit to China in 2012 and was his friend later interrogated and detained for possessing a Bible and having used a website given to him by the applicant?

34. In his application for protection he explained that he had two friends in China ([Mr G] and [Ms H]) who had studied with him at high school. He claimed that when he returned to China in 2011 he met his friends in Fuzhou and learnt they were Roman Catholics and had been attending the underground church. During his visit in July/August 2011 they urged the applicant to join the church but he was not interested at that stage.

35. In his application the applicant claimed that he started attending two Catholic churches in Australia from around February 2012 due to the breakdown of his marriage. He claimed he started catechumen classes from about March 2012.

36. He returned to China in May 2012 some two or three months after he first started attending church and catechumen classes and claimed that he met his friends in Fuzhou and by that time his two friends had married and ran a computer shop in Fuzhou. He claimed that he gave them a Bible as a gift. He explained that his friend [Mr G] was interested in information technology so the applicant gave him the name of a website of the Chinese Catholic Pastoral Centre in Australia.

37. He returned to Australia in June 2012 and regularly attended [Church 2] and the church in [Suburb 2] from that time. He and his former wife had previously separated and they divorced in December 2012 with the divorce taking effect from January 2013.

38. He claimed that in October 2013 the computer shop owned by his friends came to the attention of Chinese authorities. Many police from the Public Security Bureau (PSB) raided the shop and arrested [Mr G] for spreading illegal information on the internet. The applicant stated that [Mr G]’s wife was staying with her grandparents in Fuqing when the shop was raided. She did not return to Fuzhou but obtained information about her husband from a church sister who had contacts with the PSB. He stated that [Mr G] had confessed everything to police and his wife, [Ms H], was on the PSB blacklist since then.

39. The applicant claimed that [Ms H] contacted him on 6 October 2013 and told him what happened in Fuzhou. She told the applicant that [Mr G] had told police that the applicant had given him the Catholic Pastoral Centre website and a Bible.

40. He claimed that his father’s home in Fuzhou was raided by police and they took his father for questioning. They asked him why the applicant had returned twice to China and they threatened his father that he would be arrested if he did not stop the applicant’s illegal activities.

41. As a consequence the applicant cannot return to China because he will be arrested and imprisoned by the PSB and suffer significant harm.

42. At the interview with the Departmental delegate he stated he returned to China in May 2012 because his father had [a medical condition] and had [surgery]. He claimed he did not consider he was at risk at that time because he had not done anything illegal.

43. Later, his friends, [Mr G] and [Ms H] distributed information from websites in China and the information the applicant gave them was just one more piece of information. He claimed that [Mr G] had told police the applicant was responsible for distributing the information.

44. He also told the delegate he did not apply for protection earlier as he had a visa and after the marriage breakdown he intended to return to his studies.

45. In Tribunal 1’s hearing the applicant stated that he feared returning to China because he gave his friend a Bible and a website. He claimed the information on the website was not allowed by the Chinese authorities and in 2013 his friend was detected accessing this website and he told the police the applicant was behind this.

46. During the hearing he told Tribunal 1 that his friend was in the IT industry and the website explained the true free Catholic religion and his friend wanted to spread this information to other persons. In October 2013 the police searched his shop and arrested him because the Chinese government were taking a stronger stance against information provided on websites.

100.    During Tribunal 2’s hearing the applicant claimed that his friend had been arrested [in] October 2013 because the applicant had given him an Australia Catholic Church website address ( The Tribunal Member put it to the applicant that the website had not contained anything critical of the Chinese government and just contained information about different organisations that came under the Chinese Catholic Pastoral Centre. It did not refer to the situation for Catholics in China. He stated that the Chinese authorities were sensitive to this kind of information. Tribunal 2 put it to the applicant that the government was not overly sensitive to the issue; there were a huge number of Catholic churches operating in China. Further Bibles were available to be purchased in China and the possession of a Bible would not put his friend at risk of harm.

101.    The applicant claimed that the website made it easy to access speeches given by the Vatican, that is, all the letters written by the previous Popes and there were some references to the underground Catholic Church. Tribunal 2 put it to him that many Bishops have now been ordained from validly ordained Bishops and they do not face the same problems any longer. The applicant stated that the issue with the Bishops is still a problem. Tribunal 2 put it to him there were closer ties between the Vatican and Catholic Church in China.

102.    The applicant claimed that his friend was talking about this information in his social media accounts and the internet police paid attention to him. He claimed his friend was detained and his computer shop searched. He claimed the police found the Bible he had given his friend; he was detained, tortured and confessed. He stated the applicant had given his friend the details of the website. He also claimed the Bibles are only available through the registered Patriotic Association and his friend was not a member. The Tribunal Member put it to the applicant that there is a liberal attitude to Catholicism in Fujian Province and no evidence of people being detained or tortured because they have a Bible or material about Catholic organisations in China which might have links to the Pope. The applicant disagreed and referred to media articles concerning the treatment of activists, restrictions on freedom of religion and actions being taken by the government against Catholics.

103.    The applicant claimed his friend was sentenced to four years detention in China and his friend’s wife is on a blacklist. He claimed that he did not know where the applicant’s wife was living; they had lost contact.

104.    The applicant claimed his name was on the Bible he gave to his friend and the police discovered this when they went to his friend’s place, they had details of the Australian website and they had a record of the applicant travelling to China on two occasions. He claimed his friend was tortured and confessed that he obtained the material through the applicant. He claimed the Chinese authorities believed the applicant was the source of the internet material. The applicant told the Tribunal that even though the Chinese authorities blocked many internet sites his friend was skilled in IT and would be able to find a way of accessing these sites. He claimed his friend had accessed other information sources but had not been able to find a website with as much information as the Catholic Pastoral Centre. The Tribunal put it to him that if he had found a way of accessing restricted websites he would have been able to find sources with the information he was seeking. The applicant stated that his friend’s IT skills may not have been as good as the applicant thought.

105.    He claimed his friends became Catholics in about 2010 and nothing had happened to them prior to 2013. They advised him not to attend the registered Catholic Church as it was not the real church.

106.    Tribunal 2 put it to him that it appeared to be coincidental that he claimed his friend was detained just after his student visa refusal was affirmed by the Migration Review Tribunal. He claimed there was no significance in the timing.

107.    Tribunal 2 asked the applicant why he delayed making an application for protection until 2013 if he had started to attend church and decided to become a Catholic in February 2012. He stated he was not aware that Australia could protect persons for religious reasons. Tribunal 2 pointed out that the applicant had been in Australia since 2008, there was a large Chinese community in Australia, he had contact with the Department and it was hard to accept he did not know anything about protection visas until he made his application. In response he stated he had not asked people in the church about his situation, he had not heard of protection visas when he was studying and was worried that if he returned he could not practice Catholicism freely. He denied that he had started attending the Catholic Church to create claims for protection.

108.    The applicant claimed if he returned to China he would continue to share information on the internet regarding Catholicism and fears he would be harmed for his online activities. He claimed he feared harm because of his involvement with his friend and spreading material on the internet as well as being an underground Catholic.

109.    At the Tribunal hearing held in October 2019 the applicant stated that he feared returning to China as he believed the police would still be looking for him and would arrest him. He also claimed he would not be able to practice his religious beliefs freely as he has in Australia.

110.    He claimed that police are looking for him because he brought a Bible to China and gave his friend a website link for a Chinese Catholic group in Australia. This website had information about the previous Pope’s messages in 2007 and his friend was spreading that information around.

111.    He claimed the police noticed his friend’s activities and they arrested him. When the police searched his shop they found the Bible with the applicant’s name. He explained that the Bible was published in Hong Kong. His friend was asked by police about the applicant and why he had given him a Bible. He did not know much about details of interrogation but believed his friend told police that the applicant had given him the Bible and the website link.

112.    The Tribunal asked the applicant to explain why bringing a Bible to China would cause such a severe reaction when Bibles can be purchased in China. He claimed you could only purchase Bibles published by the state registered church. He referred to media articles mentioning that police had confiscated Bibles which had not been produced by the registered church.  The Tribunal put it to him that confiscating Bibles is quite different from arresting and detaining persons for four years for the possession of a Bible. He claimed the reason his friend was arrested was because he spread information online regarding the Pope’s letter.

113.    The Tribunal put it to him that the Pope’s letter was not a secret and many people were aware of the contents of that letter. He stated that his friend spread this information online and the police thought he was violating the constitution and trying to overturn government control over the church.

114.    The Tribunal noted country information that the Chinese authorities have sophisticated methods of stopping dissemination of information of which they do not approve. He claimed this is why they noticed his friend. The Tribunal noted that the website is not a critical of, and does not undermine, the Chinese government. He claimed that the website conveniently linked all the letters from the Pope in the Chinese language and had links to all Catholic churches in Australia and all over the world. While he conceded that the website did not look controversial, from the point of view of underground Catholics, it showed how people overseas practiced their religious beliefs.

115.    He claimed his friend [Mr G], told police that the applicant gave his friend the website information. When asked how he knew this he claimed his friend’s wife [Ms H], gave him this information after she had visited her husband in detention. He stated that she felt obliged to tell the applicant what had happened.

116.    The Tribunal put it to him that the timing of the claimed incident appeared to coincide with his application for protection. He stated it was a coincidence but this is what happened.

117.    The Tribunal put it to him that Bibles were available in China. Country information indicates that Bibles are sold in registered churches and state sanctioned bookshops in China and are available to those who purchase the Bible through these sites. Religious adherents own Bibles and have them in their possession. The Chinese government recently prohibited the sale of online Bibles from internet sites and does attempt to regulate which organisations can publish the Bible, but Bibles are available and have been since the 1960’s.

118.    The applicant claimed the Bible had been published in Hong Kong and this is why it was not acceptable to the Chinese authorities. The applicant first made this claim at the latest Tribunal hearing and the Tribunal considers this evidence was given to overcome the country information on the availability of Bibles in China put to him by the Tribunal. In any event, even if the Tribunal accepted that the Bible was published in Hong Kong the country information on the authorities’ attitude to foreign Bibles indicates that such material may possibly be confiscated; however, there is no country information before the Tribunal that the possession of a foreign Bible in Fujian Province would result in arrest, detention and a sentence of four years detention for an ordinary churchgoer or adherent.

119.    The website identified by the applicant is a website which essentially outlines pastoral care activities for Catholics in Australia. The Tribunal accepts there may be links to speeches given by the Pope and other material not available in China, however, at the time of the claimed incident it appeared that the website did not have any material critical of the Chinese government. The applicant conceded there was no critical material, but stated that the problem was that it was a foreign site and that the government wanted to regulate foreign influences on the practice of religion in China.

120.    The country information indicates that the Chinese authorities do attempt to restrict and control foreign influences in matters of religion. Further sources from 2007 to the present date indicate that the internet in China is one of the most controlled in the world. Legal and administrative regulations reportedly support the government in the strict supervision of all online content. Censorship is said to be highly organised. In addition, the government filters news by using key words.

121.    A September 2007 report on by-passing internet censorship, published by The Citizen Lab at the University of Toronto[10], stated that the Chinese government controlled internet access with a combination of regulations, guidelines and technical filtering methods:

In China, the government controls access to Internet content and online publishing by a combination of technical filtering methods and extensive regulations and guidelines. The technical filtering is implemented primarily at the national backbone level, with requests for information filtered for both banned Internet Protocol (IP) addresses and keywords. Although sometimes inconsistent, China’s centralized system of content filtering ensures uniform blocking of access throughout the country to human rights, opposition political movements, Taiwanese and Tibetan independence, international news, and other web sites. There is very little transparency about Internet filtering, and no public accountability process.

122.    The Citizen Lab report also outlined some technologies available to circumvent internet controls.[11] Another report also outlined methods of circumventing internet censorship and filtering by using proxy servers. However, the author also noted that, with time, tools and websites used for circumventing internet restrictions could also be censored by the monitoring country.[12]

123.    This level of censorship and control has continued to the present day and has strengthened in recent times. The most recent DFAT report[13] notes

China has the world’s largest internet-using population, with 772 million users. Over 95 per cent of the online population is able to access the internet via a smartphone. However, while the rise of the internet has created a non-traditional space for the expression of political opinion in China, authorities have developed and applied increasingly sophisticated methods to limit online expressions of dissent. The Freedom House ‘Freedom on the Net’ 2018 report rated China as the most restrictive country in the world in terms of internet access for the fourth consecutive year in a row. China’s security apparatus invests heavily in monitoring and controlling the internet. The Cyberspace Administration of China monitors all use of approved networks and many foreign websites (including Facebook, Twitter, Google and many foreign media sites) are blocked. Censorship tightened significantly prior to the 19th Communist Party Congress in October 2017 and the March 2018 annual meetings of the national legislature and its main advisory body, during which the constitutional changes to end presidential term limits were announced (see Political System).

[10] The Citizen Lab 2007, Everyone’s Guide to By-passing Internet Censorship for Citizens Worldwide, Munk Centre for International Studies, University of Toronto, September, p.6 align="left">[11] The Citizen Lab 2007, Everyone’s Guide to By-passing Internet Censorship for Citizens Worldwide,[ibid] at pp.17-27

[12] Vitaliev, Dmitri 2007, Digital Security & Privacy for Human Rights Defenders, February, FrontLine International Foundation for the Protection of Human Rights Defenders website, Chapt. 2.6/pp.51-58  align="left">[13] DFAT Country Information Report China 3 October 2019 pp.3.149-3.150

124.    The Tribunal does not accept that in October 2013 the applicant’s friend was arrested and sentenced to four years detention in Fujian Province for the possession of a Bible as well as the attempted use of an Australian Catholic pastoral care website. It also does not accept that his friend told the authorities that the applicant had given his friend the Bible and website.

125.    Having considered all the evidence the Tribunal does not accept that the applicant is wanted in China because he provided two friends with a Bible with his name in it and that he gave them details of an online website on Catholic pastoral activities in Australia.

126.    The applicant’s claim that his friend was arrested in October 2013 some 17 months after the applicant’s visit to China in May 2012 is not consistent with his claim that Chinese authorities monitored his friend’s online activities and the dissemination of restricted internet material. The country information indicates that the internet is tightly controlled and the Tribunal considers that the authorities would have been aware of his friend’s use or attempted use prior to October 2013 and would have taken steps to restrict use and possibly give a warning the applicant’s friend. While the country information suggests that there are some methods of circumventing restrictions, when looking overall at the evidence the Tribunal does not accept that the applicant’s friend was only detected in October 2013 around the time the applicant had exhausted all other migration options and applied for protection visa.

127.    The Tribunal does not accept that the applicant’s friend was interrogated and told authorities that the applicant had given him the Bible and website. When asked how he knew what had happened during the questioning in China, he claimed that his friend’s wife called him and told him after she visited her husband in detention. The Tribunal is not satisfied with this explanation as the applicant had previously stated that his wife had been on a ‘blacklist’ and after the arrest had not returned to Fuzhou. The Tribunal considers the applicant stated his friend’s wife visited him in detention and conveyed this information to the applicant to explain how he knew of the details of the applicant’s interrogation by the PSB when he was present in Australia.

128.    In any event, the country information on the situation for Catholics in Fujian in 2013 does not support the claim that the applicant’s friend was arrested and sentenced to four years for the possession of a Bible and dissemination of information from an Australia Catholic website.  While the country information indicates there has been some recent tightening of control in Fujian mainly involving pressure placed on underground Catholic clergy to register with the Catholic Patriotic Association, religious tolerance has always been greater in Fujian than other areas of China and it was so in 2013 at the time of the claimed incident.

129.    As the Tribunal does not accept that the applicant’s friend was arrested, interrogated and detained as claimed it does not accept that the applicant’s friend informed Chinese authorities that the applicant had given his friends a Bible and details of a Chinese Australian pastoral care website. The Tribunal also does not accept his friend was convicted and sentenced to four years imprisonment and that his friend’s wife has lost contact and is on a ‘black list’.

130.    As the Tribunal does not accept these claims, it also does not accept the applicant’s father was questioned by the PSB about his son’s activities as claimed in his written statement.

131.    As the Tribunal does not accept that the applicant’s friend informed Chinese authorities that the applicant gave his friends a Bible or details of a Catholic website it does not accept that the applicant is wanted for questioning or that he is of any adverse interest to Chinese authorities for that reason. The Tribunal does not accept that the applicant will be arrested, questioned or detained on his return to China for any activities in China.

Does the applicant meet the refugee criterion?

132.    Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future he faces a real chance of persecution for reasons of his religion or imputed anti-government political opinion.

133.    As set out above the Tribunal considers that the applicant commenced attending the Catholic Church in Australia in 2012 and later applied for protection around the time he had exhausted all his other migration options. He attended catechumen classes, was baptised in December 2013 and has regularly attended the Catholic Church since he first started attending church. Whatever his initial motivation, the Tribunal accepts he is a regular churchgoer and regards himself as part of the Catholic congregation.

134.    The question for the Tribunal is what will happen to the applicant if he returns to China now or in the foreseeable future.

135.    Firstly there is no evidence or any country information which would indicate that the applicant would be at risk of harm for reasons of his regular attendance at a Catholic Church in Australia or identifying as a Catholic. The Tribunal does not accept the applicant would face harm in China for reasons of his Christian practice in Australia.

136.    The second issue for the Tribunal is whether the applicant would continue to practice his Catholic faith if returned to China. He also claimed he would continue to use the internet to disseminate Christian material if he returned to China.

137.    The applicant gave evidence that if he returned to China he would not attend a registered Catholic church. While the applicant had a good knowledge of Catholic teachings and practices, he could not explain why he would not attend a registered Catholic Church if he returned. He had never attended a registered Catholic Church in China and had no experience of the nature of the services which took place at those churches. He referred to government control of the church and that he would not be able to freely express himself in the registered church, but this appeared to the Tribunal to be a contrived answer designed to support his claims for protection rather than coming from a genuine objection to the registered Catholic Church. When asked how he would normally exercise his freedom of expression in the context of a Catholic service or in a Catholic group he could not provide a satisfactory explanation. The Tribunal put it to him that Catholicism is a structured religion, there were obligations to attend church and perform certain sacraments but there was little room for freedom of individual expression as part of a church service.

138.    He stated that the registered church does not accept the leadership of the Pope and if he attended the registered church he would have to protest against this stance. He would have to accept the registered church or be deemed illegal. Further, the Chinese authorities do not allow anyone younger than 18 years to attend church. This may have an impact on him in the future.

139.    The Tribunal discussed the latest DFAT report on China[14] which was released shortly before the hearing. It noted that there is also a long history of emigration from Fujian Province to the United States, Australia and Africa and economic advancement of Fujianese by going to other countries. The historic willingness of Fujianese to travel overseas continues in 2019.

[14] DFAT Country Information Report China 3 October 2019

140.    The Tribunal noted that there were a wide variety of religions practised in Fujian Province. Religious adherents have generally been able to thrive in Fujian Province, largely due to its ethnic and linguistic diversity and historical isolation from other parts of China. Individuals have practised religion in state sanctioned boundaries as long as practices do not challenge the Chinese Communist Party.

141.    While there has been some tightening of control in Fujian in recent times individuals have generally been able to practice their religion as long as their practice does not challenge the Chinese Communist Party.

142.    With respect to Catholics in China DFAT reports that the Vatican and Chinese government have come to an agreement on the ordination of bishops. The report notes that there has been some tightening of religious regulation for Catholics and Protestant and the Chinese government has moved to ‘sinicize’ religious practice to counter overseas influence. The report also estimates that there are100 million Christians in China and the numbers of adherents are growing.

143.    The applicant claimed that persecution and control have continued and there are many incidents of persecution of Catholics in Fuzhou. He stated that the agreement between the Pope and the government has strengthened persecution of Catholics. He claimed the government’s motivation is to move underground members to practice in registered churches.

144.    With respect to the country information on Fujian Province he stated that underground church members keep police corruption secret. According to some people from Fujian underground churches are monitored by government. He is also sceptical about the country information.

145.    The Tribunal accepts that the applicant has been baptised as a Catholic in Australia and if he returned to China he may seek to continue his involvement in the Catholic Church.

146.    The applicant gave evidence, which the Tribunal accepts, that the applicant was born and educated in Fujian Province and the Tribunal considers that if the applicant returned to China he would return to Fujian Province.

147.    Catholics mostly live in the northern inland provinces, but are scattered throughout the country. Fujian Province is in the south, but is an exception, with some counties being majority Catholic. Both the underground and official Catholic churches in Fujian are well-attended[15]. According to Catholic news agencies, the Catholics of Fuzhou (the capital of Fujian) and Mindong Dioceses were forced to join the official CCPA[16]. In Mindong, the underground bishop was forced to resign in favour of a state-appointed bishop but was still allowed to practice as a kind of ‘assistant Bishop’. The official bishop has formally been excommunicated by the Catholic Church. According to academic, Richard Madsen, the relationship between the official bishop and the underground bishop is cordial and at the time of writing there is cooperation between the church congregations[17].

148.    If the applicant returned to China and continued his involvement in the Catholic Church, the Tribunal considers he would either choose to attend the registered church or the underground church. It does not accept he will be forced to attend the registered church if he does not wish to practice there.

149.    The Tribunal has considered current country information on the situation for Catholics who attend both the registered Catholic Church and the underground Catholic Church in Fujian Province. In particular it notes the information that members of the registered churches and underground churches will often move between the two[18].

[15] 'The Chinese Catholic Church', Richard Madsen, Review of Religion and Chinese Society, Vol. 6, Issue 1, 1 April 2019, pp. 12, 15

[16] 131 ‘Two Chinese dioceses forced to join state-run association’, UCA News, 3 June 2019, 20190604160247

[17] 'The Chinese Catholic Church', Richard Madsen, Review of Religion and Chinese Society, Vol. 6, Issue 1, 1 April 2019.

[18] DFAT Thematic Report Fujian Province, Department of Foreign Affairs and Trade (DFAT), 16 December 2016 p.3.10

1. In 2016 DFAT prepared a thematic report[19] on Fujian Province.

   [19] DFAT Thematic Report Fujian Province, Department of Foreign Affairs and Trade (DFAT), 16 December 2016

151.    The report noted

3.8 DFAT assesses that direct interference by local authorities in the operations of TSPM or CPA-linked churches in Fujian rarely occurs (particularly compared to other areas in China) and that worshippers at TSPM- and CPA-linked churches are generally able to openly practice their religion, including with a significant amount of public visibility (by attending clearly identified churches, for example), without interference. Beyond basic operations, some TSPM- and CPA-linked churches in Fujian also provide social services, such as palliative care, which in-country contacts said was encouraged by local authorities.

…

3.10 Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.

3.11 Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.

3.12 Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.

3.13 Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.

152.    In the most recent DFAT country report on China[20], it is stated that:

[20] DFAT Country Information Report: People's Republic of China, Department of Foreign Affairs and Trade, 3 October 2019.

3.33 While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

3.34 Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.

3.35 Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.

3.36 DFAT assesses that individuals in Fujian have historically practised religion more freely within state sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).

153.    One source noted that during 2018 and 2019, authorities in Fujian province attended the premises of various unregistered churches and requested that they register their churches with the Chinese Patriotic Catholic Association[21].

[21] 'Underground Catholic Churches Closed in Fuzhou Archdiocese', Bitter Winter, 17 December 2018,

154.    In respect of Christian practice more generally:

3.76 China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

3.77 In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.

3.78 There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

….

3.83 DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

155.    The DFAT report refers to the situation for Catholics:

3.89 The Chinese Catholic Patriotic Association (CCPA) has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time…..

3.90…. In 2018, China reached a provisional agreement with the Vatican under which Pope Francis recognised several Chinese state-appointed bishops who had been ex-communicated.

3.91 In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. Sources report this is no longer required in areas where the Catholic Church has built trust with local officials over time.

3.92 DFAT assesses Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

156.    In 2014 the UK Upper Tribunal handed down a guidance case in 2014[22] which addressed the issues facing Christians in China. The Upper Tribunal found that:

[22] QH (Christians - risk )(China) CG [2014] UKUT 86 (IAC) (14 March 2014) Judge Gleeson; Judge King TD

In general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible…There has been a rapid growth in numbers of Christians in China, both in the three state-registered churches and the unregistered or ‘house’ churches. Individuals move freely between State-registered churches and the unregistered churches, according to their preferences as to worship. (para 137 (1 and 2))

157.    With regard to unregistered or house churches the Upper Tribunal found:

In general, the evidence is that the many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do. (para 137 (4i))

The evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach of fundamental human rights for unregistered churches or their worshippers. (para 137 (4ii))

…in general, any adverse treatment of Christian communities by the Chinese authorities is confined to closing down church buildings where planning permission has not been obtained for use as a church, and/or preventing or interrupting unauthorised public worship or demonstrations (para 137 (4iii))

There may be a risk of persecution, serious harm, or ill-treatment engaging international protection for certain individual Christians who choose to worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views (para 137 (4iv) of the determination).

158.    In November 2019 the UK Home Office issued a Policy and Information Note on China: Christians[23]. It noted that

[23] Policy and Information Note on China: Christians November 2019 UK Home Office.

2.4.6 Since QH was heard the government has continued with a programme of sinicization of religion where religions are required to adapt religious practices and doctrines to conform to traditional Chinese culture and values. In February 2018 revised religious regulations came into effect which allowed state-registered religious organisations to possess property, publish state approved literature, train and approve clergy, and collect donations. The revised regulations also banned under 18s from religious activity, forced churches to install surveillance cameras, imposed restrictions of times and location of religious celebration and required some religious symbols, including crosses, to be removed from churches. In April 2018 the government introduced legislation which banned online sales of the Bible

159.    While acknowledging the increased restrictions on Christian practice in China since the decision in QH the guidance note concluded that

2.4.12 The government of China has continued to impose restrictions on Christians, and these have intensified since QH was heard in 2013. However, the situation for most Christians has not changed significantly, with the risk of treatment amounting to persecution for expressing and living their faith still being very low. There are not 'very strong grounds supported by cogent evidence' to justify a departure from QH.

2.4.13 However, dissident bishops or certain individual Christians who worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views may face an increased risk of adverse state interest, including harassment and detention. Public worship or expressions of a person’s faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being in conflict with its broader ethnic, political or security policies is at high risk of adverse official attention. The onus will be on the person to show that how they observe and express their Christian faith will bring them to the adverse attention of the authorities and result in them facing treatment that amounts to persecution (see State treatment of registered Christians groups and State treatment of unregistered Christian groups).

160.    The Tribunal has considered the current country information and does not accept that if the applicant returns to China he will face a real chance of serious harm for reasons of being a Catholic in Australia or if he attends either the registered Catholic Church or the underground church in Fujian Province now or in the foreseeable future. The Tribunal does not accept that the applicant is a religious leader, a member of the clergy or an activist who will come to the attention of the Chinese authorities because he conducts himself in such a way as to attract the local authorities’ attention to him or his political, social or cultural views.

161.    The Tribunal finds that the applicant became a Catholic in 2012/2013 and has generally attended church and conducted himself as an ordinary churchgoer in Australia since his involvement. It considers his initial motivation to attend church and become a Catholic was to strengthen his protection claims. Not without some doubt, the Tribunal accepts his evidence that he now regards himself as a Catholic. The Tribunal does not accept his claims that if he returned to China he would protest government control of the registered church and spread Christian information on the internet. The Tribunal considers that this evidence was manufactured to overcome country information suggesting that whilst there are increasing restrictions on the practice of Catholicism in Fujian Province that, generally, the information does not support his claim that he will face persecution simply for his attendance at a Catholic Church in Australia, or a registered or underground church in Fujian Province.

162.    The material provided to the Tribunal includes statutory declarations from two friends who were introduced to Catholicism by the applicant. The evidence indicates he invited his friends to [Church 2] at [Suburb 1] and they later became baptised as Catholics. The Tribunal accepts this evidence but does not consider it indicates that the applicant will return to China and evangelise. As discussed with the applicant Catholic religious obligations do not require him to evangelise and the Tribunal does not consider that he will do so if he returns to China.

163.    The applicant referred to restrictions on minor children being involved in religious activity in China. There are a number of sources which refer to restrictions on children being involved in religious activities in China. However, the applicant does not have minor children.

164.    The USDOS religious freedom report for 2018 noted that revised religious regulations implemented in February and policies enacted by the state-sanctioned religious associations inhibit children under the age of 18 from participating in religious activities and religious education[24].

[24] 'International Religious Freedom Report for 2018 - China (Includes Tibet, Hong Kong and Macau)', US Department of State, 21 June 2019 p 9

165.    One source noted that whilst evangelising children is prohibited in China, most churches have Sunday schools and the authorities typically do not intervene:

Churches in China were already prohibited from evangelising to children, but almost every church in China has a Sunday school, which, according to a local source, authorities generally turn a blind eye to, in order to avoid unnecessary conflicts with churches.[25]

[25] China bans children – and their teachers – from churches', World Watch Monitor, 08 September 2017

166.    As the applicant does not have any minor children the Tribunal does not accept that he faces a real chance of serious harm due to current restrictions on children participating in religious activities or education in China.

167.    Given the findings set out above the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his religion or any other Convention related reason.

Does the applicant meet the complementary protection criterion?

168.    Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

169.    As set out earlier in this decision the Tribunal does not accept that the applicant is wanted by Chinese authorities because he provided a Bible and the details of a Catholic website to friends in China in a visit in 2012.

170.    Accordingly as it does not accept he is wanted or that Chinese authorities have any adverse interest in him, it does not accept he will face a real risk of being arbitrarily deprived of his life; face the death penalty or be subjected to torture; cruel or inhuman treatment or punishment; or to degrading treatment or punishment for this reason.

171.    The Tribunal accepts that the applicant has been attending a Catholic Church in Australia since 2012, that he has been baptised and involved in many church activities. For reasons set out above, there is no evidence or country information before the Tribunal indicating that his attendance and involvement in Catholic activities in Australia would result in the applicant facing a real risk of being arbitrarily deprived of his life; facing the death penalty or subjected to torture; cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

172.    The applicant has given evidence that he will continue to seek to practice his Catholic religion if he returns to China. He claims that he would attend an underground Catholic Church.

173.    The applicant has given evidence which the Tribunal accepts that he was born in Fujian Province and the Tribunal considers that he would return to Fujian if he was removed from Australia to Fujian.

174.    If the applicant chose to attend the registered church he will face some restrictions on how he practices his Catholicism; if he attends an underground church in Fujian Province he may be affected by church closures and pressure from local authorities to join the registered church. The country information indicates that local authorities have a fairly tolerant attitude to the underground churches. Other than for reports of some isolated incidents of harassment, there is no evidence that ordinary underground churchgoers in Fujian Province face conduct which would amount to significant harm.

175.    While accepting that current restrictions on religious practice and steps taken to ‘sinicize’ religion in China have been criticised and unwelcome to those who face such restrictions, the Tribunal does not accept the restrictions the applicant might face amount a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 

176.    Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

CONCLUSION

177.    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

178.    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).

179.    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 any of the criteria in s.36(2).

DECISION

180.    The Tribunal affirms the decision not to grant the applicant a protection visa.

Louise Nicholls
Senior Member

ATTACHMENT A

RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant 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.

Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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 a protection 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 the applicant 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’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

In accordance with the current Ministerial Direction, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.