1731666 (Refugee)

1731666 (Refugee) [2021] AATA 3660 (4 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731666
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE:4 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 4 August 2021 at 10:30am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – member of house church – arrested, detained and assaulted – credibility – inconsistent and implausible claims and evidence – lawful departure without problems – low knowledge and cursory understanding inconsistent with claimed attendance and activities – no supporting statements from church members or leaders – country information – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
SZJTK v MIAC [2008] FCA 1712
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The applicant who claims to be a citizen of China, applied for the visa on 11 September 2017.
The applicant attended the Tribunal hearing on 29 July 2021. The Tribunal was assisted by an interpreter at hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Meaningful opportunity to give evidence and submissions:
Though said to have been properly notified, the Tribunal notes the applicant did not attend the Department interview, which was said to have been scheduled for 23 November 2017.
That being said, the Tribunal hearing for this case was initially scheduled for 30 June 2021. That hearing date was vacated due to Sydney being subject to a new COVID-19 lockdown. The hearing was then re-scheduled to 29 July 2021. However, as Sydney continued to be in a COVID-19 lockdown, on 26 July 2021 the Tribunal contacted the applicant in order to arrange to conduct the hearing by telephone. The applicant was recorded as saying she would prefer the hearing to proceed face-to-face (as had been initially planned); but that she was not able to provide further detail as to why she preferred the hearing to proceed face-to-face. The applicant was also recorded as enquiring whether she should seek legal assistance.
The Tribunal is aware that in SZJTK v MIAC,[1] the Federal Court commented that, in exercising the discretion to allow an applicant’s appearance to be undertaken by telephone, closed-circuit television, or any other means of communication, the following would generally be considered:
·an appearance using such technology would give the applicant a fair opportunity to give evidence and present arguments
·its questioning of the applicant is likely to be conducted fairly and effectively
·it would be able to properly make any necessary assessment of the applicant’s credibility
·it may need to put a large quantity of documents to the applicant and
·delays and costs may be caused if the appearance were not to be conducted in that way.
[1] SZJTK v MIAC [2008] FCA 1712 at [26].
After having considered the applicant’s request to not proceed with a telephone hearing, the Tribunal decided to assess at the hearing whether the applicant was inter alia given a fair opportunity to give evidence and submissions, and given there was then no clear idea of how long the Sydney COVID-19 lockdown may be kept in place, the Tribunal decided that in this case, it was appropriate to proceed to a hearing. The Tribunal therefore declined the request to further delay the hearing.
Next, when the applicant was contacted by telephone on 26 July 2021, the following was also recorded:
[The applicant] asked to be advised of the hearing start time, I had provided the hearing date but not the start time; she advised that her memory was going and she may forget. I referred her to her written hearing invitation and that I was looking at our copy and confirmed that the hearing invitation had included the hearing start time, 10:30 am (NSW time).
Regarding the applicant’s memory, there was no material indication at hearing, that the applicant’s memory prevented her from having a meaningful opportunity to provide her evidence.
In the circumstances, and notwithstanding the applicant is unrepresented, after having considered her evidence, the Tribunal is satisfied the applicant was given a real opportunity to put evidence and submissions, including at hearing.
The applicant’s receiving country / sections 36(3)-(5A) of the Act:
The (ethnic Han) applicant (DOB: [Date]), said she had married in January 1981[2] (her husband remained working in China) and that she last arrived in Australia [in] August 2107. She lodged her passport ([Number] – expiry date [2026][3]). The applicant claimed she had resided in [Town], Changan District, Shijiazhuang, Hebei.[4]
[2] PDF – p.17 (‘PDF’ refers to the merged Department file in the Tribunal Casemate database).
[3] PDF – p.16 & p.45.
[4] PDF – p.21.
The Tribunal therefore accepts the applicant is a citizen of China, and that China is her receiving country.
Given the lack of material evidence to the contrary, the Tribunal accepts the applicant does not have effective protection pursuant to s.36(3)-(5A) of the Act.
The applicant’s migration history:
As noted in the delegate’s decision record, the applicant’s migration history follows:
[Details deleted].
The applicant’s claims:
The applicant’s claimed religious practise (principally) in China:
The applicant claimed to have studied until [Year] (she completed her high school on [Date]). From [Date] to 14 August 2008, she sold [products]. From [September] 2008 to [October] 2010, she sold ‘products’. From [October] 2010 to her departure from China, she was ‘retired’. She said her financial support in recent times, was her ‘deposit’.[5]
[5] PDF – p.28.
In her Protection visa (PV) application, the also applicant said:[6]
·     She is a proud Christian
·     Her daughter’s mother-in-law was Christian and had taken the applicant to church in 2014. From that time, the applicant became a Christian. She had said that being Christian ‘was about hope, peace, love etc’
·     One night, the applicant and her friends had gathered together to worship; and then police officers ‘broke in’
·     During the ensuing chaos, the gathering was told they were being arrested due to illegally organising an assembly and spreading anti-revolution speeches. The participants attempted to explain they were there to worship but the police did not listen
·     The police took all the participants to the police station, and they were told by the authorities, that privately believing in God was a breach of Chinese laws
·     The applicant had argued with the police and asked to see any evidence they were engaged in illegal activities. The police lost patience and forced the applicant to kneel down on the ground and they commenced to punch her and kick her in the belly, and they then struck her head against the wall. The applicant then said she ‘felt herself almost dying’. She feared ‘this would be a nightmare for the rest of her whole life’
·     After being released (after several days confinement), the applicant said the police continued to visit her ‘all the time’. They visited her home and said they were attempting to take care of her family. The applicant said she had no freedom, and not even basic living rights. She said she was living under stress and fear
·     The applicant believed the authorities ‘did not want her to survive’ so she was ‘forced to leave China after suffering all the torture and inhumane treatment’
·     After arriving in Australia, she commenced to attend local churches and has been involved in religious activities. She feels ‘reborn’. She believes that Australia is a real home where she can completely stick to her belief and free life
[6] PDF – from p.46.
When discussed near the commencement of the hearing, the applicant agreed that she had contact[7] with family members in China. In her PV, it was said her husband and daughter (DOB: [Date]), remained in China. At hearing, she said her daughter’s husband and her grandchildren also remained in China. In response to repeated questions at the hearing, the applicant said she was able to contact family and friends in China – she spoke to her daughter at least once per week and her husband with similar regularity. They spoke of how each other was, and the applicant provided assistance to her daughter, in raising the applicant’s grandchildren. When asked what significant things had been discussed, she told her family about her Christian life in Australia, and that in Australia there was religious freedom.
[7] PDF – p.20.
Next, in the PV application the applicant only claimed to be able to speak, read and write Mandarin;[8] however, and though the PV application was drafted in the English language, she claimed not to have had any assistance in completing the application.[9] When discussed at hearing, the applicant remembered that she was assisted when completing the PV application. However, she could not remember the name of the person who completed the PV application in English, or the person from her own village in China, who recommended this person to her. As the applicant had resided in Hebei province, in the north east of China, the Tribunal put the gist of the following to the applicant for comment:
5.62 Organised irregular migration is common, and is backed by a high level of sophistication with respect to counterfeit documentation for visa applications. Fraud has also evolved to take advantage of online visa application systems. The use of manipulated images has increased and is common (largely manipulated ID numbers and place of residence and issuance locations to reflect lower risk source cities). Organised immigration malpractice regularly floods online application systems using documentation with misrepresented residential locations to identify which locations can circumvent risk tools. Sources report that such issues are more prominent in applications from southern and northeastern provinces.[10]
[8] PDF – p.23.
[9] PDF – p.36.
[10] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
The applicant denied having any involvement with persons engaged in organised irregular migration.
Next, the applicant said her daughter’s mother-in-law introduced the applicant to Christianity and the applicant attended church with the mother-in-law, in 2014. The applicant referred to the church as an underground church (normally Catholic) and also a house church (Protestant). However, she did recall the church was in fact a Protestant church. She then commenced to attend the church two or three times per week. The church (located in a rural area) did not have an official premise, and the services and or teachings took place in the private houses of people in the church (usually between 10-20 persons attended each session).
When the Tribunal asked whether the church was registered or unregistered, the applicant said she was anti-Communist and it was a house church (unregistered). She also said she started to ‘spread the Gospel’ and would speak about the Bible and Jesus to her friends and co-workers. When the Tribunal noted she had retired some four years prior to claiming to have become a Christian, she explained that she meant her former co-workers.
After having practised her Christianity for around three years in China, the applicant was attending the house of another practitioner called the ‘teacher’ (he had attended the church for longer than the applicant – however, he did not teach the applicant or others about Christianity). The police then raided the house, accused the group of illegally organising an assembly and spreading anti-revolution speeches, then took everyone to the police station (around 7 or 8 persons were arrested).
When asked when this arrest took place, the applicant was not initially certain, but eventually remembered that the arrest took place in or around March 2017. As this was six months before the applicant departed China, and as this was a significant reason that caused the applicant to flee China (and therefore a relatively recent and significant event in her life), the Tribunal said it may not appear plausible she would not have more readily been able to name the approximate date of the arrest if this claim was true. The applicant said the claim was none-the-less true.
When then asked, the applicant was also not able to remember the name of the ‘teacher’, in whose home the 7 or 8 persons were at the time of the arrest. Again, given the arrest constituted a relatively recent and significant event in the applicant’s life, the Tribunal does not accept it plausible, she would not have remembered his name if the claim was true. Given the significance of the event, neither does the Tribunal accept the applicant’s claimed ‘memory’ issues, sufficiently explain her inability to remember the ‘teacher’s’ name.
When also asked what had happened to the other persons arrested, the applicant said that on their release, they continued to practise their religion without any claimed issue. However, since she departed China (in August 2017), the applicant had no further news about these other persons. When asked why, the applicant said it was not safe to speak of such things on the phone (though she later claimed to have spoken on the phone about how her family were allegedly harassed by the authorities after her departure – discussed below). Also, at the commencement of the hearing, the applicant said she was able to speak about her Christian life in Australia, and that in Australia there was religious freedom. Based on the Tribunal’s knowledge, it is not uncommon for an applicant with such claims, to have at least made some attempt to identify what had happened to the other 6 or 7 practitioners detained with her in 2017, if the claim about the arrest was true.
The Tribunal then put the gist of the following to the applicant, regarding Christians in China, relating to the time around which the applicant departed:
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 [State Administration for Religious Affairs] 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.[11]
[11] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
The Tribunal notes that more recent country information refers to more pressure brought to bear on unregistered churches in China, but the country information more proximate to the time of the applicant’s departure from China, did not necessarily support the claim that she was arrested as claimed. Further, the UK Home Office referred to a 2016 report:
6.1.1 … ‘Religious observance in China is on the rise. The Chinese Communist Party (CCP) is officially atheist, but it has grown more tolerant of religious activity over the past forty years. Amid China’s economic boom and rapid modernization, experts point to the emergence of a spiritual vacuum as a trigger for the growing number of religious believers [12]
[12] UK Home Office, Country Information and Guidance China: Non-Christian religious groups Version 1.0 August 201

At hearing, the Tribunal said the country information did not support the claim the applicant’s church was raided in March 2017, and/or that the attendees were arrested. The Tribunal said she and the group, were accused of being anti-revolutionary. When asked, the applicant said she spoke about her beliefs at her church, and she also spread the gospel. She was not a member of any other groups or organisations, and she only spread the gospel by mouth (to friends and family). The Tribunal accepts the applicant might not like the Chinese Communist party, however, other than her alleged religious beliefs (discussed herein), the Tribunal is not satisfied the applicant would come to the adverse attention of anyone in China, for reason of being ‘anti-Communist’ as she had claimed.
When then asked what she said and or what she knew about the beliefs of her Chinese Christian church, the applicant said:
·     Christians walk on the right path
·     God created everything
·     That Christians are taught to respect and love each other
·     Jesus is the saviour of all humans
·     People must be cleansed and repent their sins
The Tribunal understands that strict or unbending doctrinal testing of a religious belief system is not appropriate. However, when an applicant claims to have attended her church for services and or ‘teachings’ around three times per week for around three years, and given the applicant is claiming to be prepared to risk harm for the practise of her faith in China, the Tribunal would commonly expect such a person would be able to recall more about their religious practise than the present applicant has been able to. This is one of the reasons that eventually satisfied the Tribunal the applicant is not generally credible.
Be that as it may, and though the applicant commenced to attend church in Australia, immediately after her arrival (she had some difficulty recalling the church but she thinks it was called the [Name] Church – not apparently related to the Almighty God Church), she had not attended any physical church in Australia for over 18 months prior to the hearing (which period commenced just prior to the COVI(D-19 lockdown). Neither did she follow those Christian beliefs she adhered to in China. She had now decided to follow the ‘Almighty God Church’, and she had attended online services, around 4 or 5 times per week, since around December 2019 (discussed below).
Next, after claiming to have been arrested in March 2017, the applicant and her family, were visited and harassed by the Chinese authorities around one time per week (or more) up until the time she departed China (in August 2017). The Tribunal put the gist of the following to the applicant at hearing - regarding departure from China:
5.40 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list
And:
5.61 DFAT assesses it would be difficult to depart China on a forged passport. Chinese passports use sophisticated technology and authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials. DFAT is aware of cases where genuine documents obtained by fraudulent means (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards) are submitted in support of visa applications. DFAT assesses such documents are relatively easy to obtain and are commonly used.[13]
[13] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
The Tribunal noted that in her PV application, the applicant said she was ‘legally granted’[14] her travel documents to depart China. At hearing, the applicant agreed that she departed China lawfully. The Tribunal put to her that if she was of any ongoing adverse interest to the Chinese authorities as she claimed, the Tribunal may not accept she was able to depart China without problem. When asked previously, the applicant did provide advice as to the cost of her travel, but she then conceded this was normal travel expenses. She also said she was pressured by her family to depart. The applicant also had subsequently said that her family continued to be harassed after she left China, but this stopped after a short while.
[14] PDF – p.24 & p.25.
The Tribunal noted that near the commencement of the hearing, and when asked, she had not referred to any harm, harassment or even questioning of her family after she departed China (even that which may have stopped after a short while). She said she was not able to speak of such things, but the Tribunal again notes the applicant said she was able to speak about her Christian life in Australia, and that in Australia there was religious freedom. The Tribunal does not believe it plausible the applicant would not have initially referred to any harassment of her family (even that which stopped after a short while) if this claim was true. Furthermore, even though she said she could not speak of such things with her family, she subsequently claimed to know they were harassed by the Chinese authorities for a short while. The Tribunal believes the applicant’s claim her family was harassed is false.
The Tribunal also believes that if the applicant was of any adverse interest to the Chinese authorities, she would not have been able to depart China lawfully, and without problems, as was claimed. The applicant did say that what is recorded in the country information is not what actually happens in China. However, and given the sources considered by the Tribunal, and the travel of Chinese and other citizens to and from China, the Tribunal is satisfied the information considered by it is materially accurate, and would be capable of independent checking.
Therefore, and taking into account inter alia the implausibility findings and rejected evidence referred to above cumulatively, the Tribunal rejects as false, the applicant’s evidence of her Christian practise in China, her arrest, her mistreatment while detained, and her and her family’s harassment on her release. Given the Tribunal’s adverse credibility findings, I am also satisfied the applicant did not attend any church in Australia, and that even if she did, her attendance was not as a genuine Christian (I have discussed the ‘Almighty God Church’ below).
The Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in China, for any reason discussed above.
The applicant’s claimed practise in the ‘Almighty God Church’ in Australia:
As noted above, the applicant had more recently (since December 2019) decided to follow the ‘Almighty God Church’, and she had attended online services, around 4 or 5 times per week, since around December 2019. The country information about this Church included:
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 God), …
…..
3.106 The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning (also known as the Church of Almighty God) …
3.107 The Chinese government listed Eastern Lightning, an offshoot of the Shouters, also known as ‘The Church of the Almighty God (COAG)’, ‘The Congregation’, ‘Oriental Lightning’, ‘Seven Spirit Sect’, ‘Second Saviour Sect’, ‘True Light Sect’, ‘True Way Sect’, and ‘New Power Lord's Church’ as a banned xie jiao (cult) in November 1995. According to Chinese government statistics, COAG had four million members in 2014. However, COAG claims more than a million followers in a seven-level hierarchy. DFAT is unable to verify the number of COAG members practising in China. Chinese government sources claim most members are uneducated rural women aged around 50 years. However, academics suggests COAG membership also includes middle and upper class, Chinese males and females.
3.108 Zhao Weishan, a physics teacher from Henan province who later fled to the United States, is claimed to have founded COAG in 1989. However, academics note COAG members have denied Zhao was their founder, and some claim a small community existed before Zhao’s involvement. COAG adherents believe Jesus returned to earth and was incarnated as ‘Almighty God,’ a living person, sent ‘to bring the fullness of truth to purify and save humankind.’ Most of ‘Almighty God’s’ utterances are collected in the book ‘The Word Appears in the Flesh.’ COAG members also believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will save them from impending apocalypse. According to the COAG movement, ‘Almighty God’ came to inaugurate the third and final age of humanity, the Age of Kingdom, which follows the Age of Law (the Old Testament) and the Age of Grace (of Jesus).
3.109 There is no formal liturgy in the COAG movement, nor sacraments or eucharist, as these are viewed by members as practices of the Age of Grace, not the Age of Kingdom. However, academics report COAG has a structural church system, with local and international leaders, and claim gathering is important to COAG members, who worship by meeting and discussing their understanding of ‘Almighty God’s’ words, listening to sermons and singing hymns.
3.110 Although the movement never mentions the name of ‘Almighty God,’ nor any specific biographical details, academics believe ‘Almighty God’ identifies a Chinese woman known as ‘lightning Deng’ (Yang Xiangbin, the wife of Zhao Weishan). In 2000, Zhao and Yang Xiangbin moved to the United States and led the movement from New York. Academics note members refer to ‘Almighty God’ as ‘Almighty God,’ and not by any civil name, nor by any specific gender.
3.111 COAG reportedly encourages members to break away from family, although academics claim the accusation that COAG’s theology is anti-family does not have any support in COAG’s scriptures, which teach that the family is part of Almighty God’s plan and reiterate Almighty God’s requirement to honour parents and be faithful spouses in the Age of Kingdom. COAG reportedly demands unconditional obedience from low-level believers.[15]
[15] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
When then asked to explain what she understood about The Church of Almighty God (which the Tribunal understands is the Almighty God Church referred to by the applicant), she said it teaches:
·     God has come to earth to pass judgment and do case work
·     They are taught to repent their sins
·     They are taught to teach people about God
When the Tribunal eventually said this did not indicate the applicant knew much about The Church of Almighty God, the applicant continued:
·     They speak about God’s work and they communicate with each other
·     They avoid the devil
·     They cleanse their sins
·     God has a three stage plan – Law / Grace / Saving – and we are in the last stage
When asked if she knew of the Book referred to by adherents to The Church of Almighty God – hereafter ‘The Church’ (the book - ‘The Word Appears in the Flesh), she said she had ten books about The Church. When asked why she had not attended Church services at The Church, the applicant said she had attended one service in December 2019, but since the COVID-19 lockdown in Sydney (commencing around mid-March 2020[16]), and which therefore occurred some three months after her first and only attendance at The Church (or at least at a physical location), she had only listened to services online.
[16] COVID-19: A CHRONOLOGY OF STATE AND TERRITORY GOVERNMENT ANNOUNCEMENTS (UP UNTIL 30 JUNE 2020), PARLIAMENT OF AUSTRALIA, COVID-19: A CHRONOLOGY OF STATE AND TERRITORY GOVERNMENT ANNOUNCEMENTS (UP UNTIL 30 JUNE 2020) – PARLIAMENT OF AUSTRALIA (APH.GOV.AU) , ACCESSED 29 JULY 2021.
If the applicant allegedly listened to The Church online services for 4 or 5 times per week since at least March 2020 (as claimed by the applicant), the Tribunal is not satisfied the applicant knew much about the practises of that Church. Further, and more importantly, the Tribunal is not satisfied she knew sufficient about The Church, to satisfy the Tribunal she understood what it was she was claiming to be prepared to risk serious (or significant) harm in China for.
At hearing, the Tribunal noted it did not appear the applicant had (words to the effect) more than a cursory understanding of The Church. The applicant then said she could lodge proof after the hearing. The Tribunal said that in its experience, when a person practised a religion in Australia, fellow practitioners or Priests or Ministers, were generally happy to provide evidence on their behalf, and this had not occurred in this case (though the Tribunal again notes the applicant was not represented). When then asked what proof she could provide, she said proof of her attendance at The Church, what they do in services, and ‘things like that’.
The Tribunal declined to allow further time to lodge evidence. That was because, and as noted above, the Tribunal had sent two hearing invitation letters to the (unrepresented) applicant, and both had advised her to lodge all documents they intended to rely on and or attach additional information if any new information was to be considered by the Tribunal, prior to the hearing. Further, and perhaps more importantly, as to the applicant wishing to (ie) prove her attendance at The Church, the Tribunal was satisfied that irrespective of her attendance, it had provided the applicant with a meaningful opportunity at hearing, to allow the Tribunal to assess whether her claimed adherence to The Church was genuine. For the reasons set out herein, the Tribunal is not satisfied her claimed belief is genuine.
Next, the country information stated:
5.44 … Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China …[17]
[17] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
At hearing, and apart from what is discussed herein, the applicant did not clam to belong to any other clubs, groups or organisations. She had worked in Australia, most recently as [an Occupation] in the [work sector] industry. However, for the previous two years (prior to the hearing) she had lived on the compensation she was paid after being injured at her work. There is nothing the applicant has done that has satisfied the Tribunal she would be considered adversely by anyone in China should she return.
Given the adverse credibility findings made herein, the Tribunal is not satisfied the applicant has a real chance of suffering any harm in China, for any reason related to her alleged adherence to The Church of Almighty God. The Tribunal also finds that her claimed adherence to that church is not genuine.
The Tribunal is not satisfied the applicant has a real chance of suffering serious (or significant) harm in China, for any reason discussed under the above sub-heading.
Failed asylum seeker:
As noted at hearing, the country information stated:
5.44 DFAT is not able to verify the treatment of failed asylum seekers returned to China. DFAT has no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to adverse attention. DFAT is unable to verify whether having sought asylum abroad would worsen the situation of individuals attracting adverse attention from authorities for other reasons. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China …[18]
[18] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
When discussed at hearing, the applicant said she would be harmed in China, for reason of her alleged Christian practise in a house church in China, and for her alleged adherence to The Church of Almighty God in Australia (these are discussed above). After then considering the findings and country information herein, and then considering the applicant’s four year stay in Australia, the Tribunal is not satisfied the applicant would have a real chance of suffering serious (or significant) harm in China, for reason of being returned as a failed asylum seeker.
For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, and again for the reasons set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mr S Norman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K     Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L     Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3660

4 August 2021

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Immigration

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Statutory Interpretation

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Procedural Fairness

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