1731870 (Refugee)

1731870 (Refugee) [2022] AATA 1001 (29 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731870
COUNTRY OF REFERENCE:                   China
MEMBER:Amanda Mendes Da Costa
DATE:29 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 March 2022 at 9.27am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – membership and activity in house church – arrested, detained and assaulted – credibility – vague claims, evidence and knowledge of Christianity – incorrect information and bogus documents provided with visitor visa application – acquiescence with agent – limited evidence of membership and activity in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5A, 5H(1), 5J(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 455
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 15
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 29 September 2015. The delegate refused to grant the visa on the basis that the applicant was not a refugee or a person in respect of whom Australia owes complementary protection.
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–5LA, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or is a person in respect of whom Australia owes complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s nationality and visa history
The applicant came to Australia on a Chinese passport, a copy of which he provided to the Department. The delegate had no concerns as to his claimed nationality. The Tribunal accepts the applicant is a national of China and has assessed his protection claims accordingly.
The applicant arrived in Australia [in] July 2015 as the holder of an FA-600 Visitor visa and applied for an XA-866 Protection visa on 29 September 2015. He participated in an interview with Departmental staff on 26 July 2017.
Applicant’s protection claims
The applicant’s protection claims (including those provided in his visa application form and interview with Departmental staff on 26 July 2017) are as follows:
·He fears harm on religious grounds based on Christianity.
·He practises in a church which is banned in China and proclaimed an “evil cult”.
·He was arrested and detained in China [in] February 2015 for six days.
·While in detention he was brainwashed, assaulted and intimidated.
·He was arrested together with other churchgoers while he was hosting a church gathering at his house in Fujian Province.
·He was warned by Chinese authorities that if he was found practising his religion again, he would be severely punished.
·If he returns to China, he will continue practising his religion.
The applicant adopted these protection claims in his oral evidence.
Departmental interview
The applicant attended an interview with Departmental staff on 26 July 2017. It was noted in the delegate’s decision, that they did not consider the applicant had demonstrated a knowledge of the Christian faith that would be considered commensurate with a genuine believer in the Christian faith. He was very brief in his description of the main belief of his religion and did not elaborate in his response. The delegate considered the applicant’s response was vague and generalised in nature. He described the applicant’s recitation of his knowledge of Christianity as being given in a rehearsed manner.
Country information
The Tribunal has taken into consideration the following information from the DFAT Country Information Report: China 3 October 2019:
2.50The Constitution provides for freedom of speech, the press, assembly, association, and religious belief. Article 33 states that ‘all citizens of the People’s Republic of China are equal before the law. The State respects and preserves human rights. In practice, however, the Constitution is non-justiciable, and these freedoms are significantly curtailed. The one-party political system lacks effective safeguards to allow independent monitoring and investigation of human rights abuses by the state, such as an independent media, judiciary, or a national human rights institution.
In relation to freedom of religion more generally, DFAT summarises as follows:
3.28China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the “three teachings”, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment pf ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
3.29In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control power state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 percent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
3.30It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious belief (CPPPRFB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total of almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).
The white paper also indicates that there are approximately 5,500 religious groups and an estimated 144,000 places of worship in China.
3.32In practice, the number of religious believers, places of worship and religious organisations is likely to be much higher – particularly with respect to unregistered organisations (including house churches) which operate in parallel to state sanctioned Christian churches. Freedom House estimates there are more than 350 million religious believers in China who are mostly Chinese Buddhists (185 to 250 million), followed by Protestants (60 to 80 million, of which only 30 million are registered), Muslims (21 to 23 million), Falun Gong practitioners (7 to 20 million), Catholics (12 million, of which 6 million are registered) and Tibetan Buddhists (6 to 8 million). Other otherwise unaccounted for groups tend to observe aspects of Buddhism, Daoism and ‘folk religion’. Discrepancies between official statistics and international estimates are due to the fact that China does not recognise worshippers who engage in religious activity outside of state-sanctioned organisations or believers who are under 28.
Christians
3.76China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Centre estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).
3.77In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations) and ‘underground’ churches for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ’House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.
3.78There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and projects (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.
3.79Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or imputed) and Protesters/petitioners).
3.80Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across province in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinse culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei Province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability’. In Changsha, Hunan Province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.
3.81In December 2018, police raided a children’s bible class in Guangzou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down (see Government Framework regarding religion). Members of the early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.
3.82Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China, NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the Mainland.
3.83DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion(actual or Imputed). DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.
Churches designated as ‘xie jiao’ (commonly referred to as ‘evil cults’ but also understood to translate to ‘heterodox teachings’):
3.93The Criminal Law provides for prison sentences of up to seven years for individuals who use superstitious sects, secret societies, or evil religious organisations to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong (a traditional Chinese exercise discipline), or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious idea, and endangering society’. While the criminal provisions principally target Falun Gon, others who engage in practices deemed superstitious or cult-like can face harassment, detention, and imprisonment.
3.94In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’ (cult) and launched an anti-cult platform on social media called ‘Say No to Cult’, which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, eastern Lightning (also known as the Church of Almighty G-d), the Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of G-d, Dami Mission, the new Testament Church, the World Elijah Gospel Mission Society, the Lord G-d Sect, the Yuandun Dharma Gate, and the South China Church.
3.95Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19^th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.
Christians in Fujian Province
The Tribunal has also considered the more localised independent information collated in the Department of Immigration’s Background Paper on Protestants in China, August 2015 about Fujian Province:
Fujian is a province on the south-eastern coast of China and is the province from which most asylum seekers have come to Australia. Many come from the county of Fuqing City,[1] which is part of the prefectural city of Fuzhou in the north of the province. Although both the province and the county contain relatively large numbers of Protestants, there are few reports of repression of house-church Christians in the province and the country. In the 2006 edition of China’s Christians Millions Lambert also describes religious policy in Fujian as ‘relatively liberal’ however, he also notes the occurrence of ‘occasional crackdowns on house churches’. Lambert provides the following information on the Christian community in Fujian and the treatment of house churches:
Fujian has a thriving and rapidly growing Christian community. As a coastal province in the south east, it was one of first to be evangelised from the early 19^th century. By 1949 there were about 10,000 Protestants. Official estimates of Protestant Christians in 2004 were 1,179,000 – a twelve-fold growth after fifty-five years of Communism. In early 1999 a TSPM spokesman stated there were 4,000 registered churches and meeting points. In 2000 the TSPM magazine Tianfeng revealed there were over 1,200 pastoral workers in Fujian.
Fuzhou, the capital, with its six surrounding rural counties and two smaller municipalities had at least 350,000 Protestants in 2002, meeting in 300 registered churches and 2,000 meeting points. In 2004 Fuqing City had 350,000 believers meeting in 520 churches, according to a Hong Kong Pastor. After Wenzhou, it is the area with the second greatest number of churches in the whole country and has been dubbed ‘China’s Second Jerusalem”. About 26 per cent of the population are Christian. Pingtan, a large island off the coast, has also seen incredible growth, from under 5,000 Christians in 1959 to 60,000 today, divided equally between registered and unregistered congregations. At least 15 per cent of the island’s population are Christians.
The ‘Little Flock’ or ‘Assemblies’ were started by Watchman nee in the 1930s and are still strong in Fujian, especially in the Fuzhou and Fuqing areas where they number many thousands. Many of them prefer to have no links with the TPSM. In Xiamen at least one third of the believers meet in over 100 independent house churches, according to a knowledgeable Hong Kong Christian. The ‘True Jesus Church’, another indigenous church is also strong in the province with some 70,000 members in total. They are very strong in Putian County, numbering about 20,000 there. There are about 210,000 Roman Catholics in Fujian. In general, the official religious policy has been applied relatively liberally in Fujian, although there have been occasional crackdowns on house churches and ‘underground’ Catholics.[2]
Lambert’s characterisation of Fujian as a relatively liberal province in relation to religious policy was supported by a Canadian government fact-finding mission to the province in 2000[3] and the executive secretary of the Hong Kong Christian Council in 2005.[4] A 2009 report on the Protestant Church in Fujian Province in a Global Chinese Ministries[5] newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that ‘[i]n general, local government in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecution of house -church Christians in the province’. It should be noted that one of the sources for this report is the TSPM/CCC.[6]
The DFAT Country Information Report China 3 March 2015 in respect of unregistered religious organisations (and other groups) in China assesses, broadly speaking, that religion in China can be practised within state-sanctioned boundaries, provided such practices do not challenge the interests or authority of the Chinese Government. Religious adherents are therefore subject to a range of restrictions that vary in extent and intensity according to local conditions.
The Local Church have a range of practices and theology that differs from more mainstream theological sects. Witness Li or Lee re-translated the Bible and added extensive commentary, as referred to by the applicant in his evidence, but the Church also holds distinct views, considering humanity totally sinful, humans as divided into flesh soul and spirit, the practice of pray reading where people read together aloud from scripture, calling on G-d, and proscribed group rituals.[7]
More generally, it is understood that China has a long history of Christianity but also one that because of the way the State has sought to control, and because of successive waves of different evangelists as well as local re-interpretations such as that of Witness Lee, Christianity is divergent from many other parts of the world in practice and form.[8]
[1] Fuqing is a ‘country-level’ city and is largely agricultural with over 90% of its one million population living in rural areas. It has a long history of legal and illegal emigration abroad.
[2] Lambert, T. 2006, China’s Christian Millions, Monarch Books, Oxford, pp.240-1, CISBE8E6BE680
[3] Immigration and Refugee Board of Canada 2000, CHN34099. E ‘China: Report of a fact finding mission to Fuzhou by political counsellor, Canadian Embassy, Beijing’ 23 March <http:/
[4] In comments to the Immigration and Refugee Board of Canada (Immigration and Refugee Board of Canada 2005), CHN 100387.E – China Situation of protestants and treatment by authorities, particularly in Fujian and Guandong (2001-2005), 1 September OG8866BA47)
[5] Global Chinese Ministries is described on the website of the Overseas Fellowship Mission (OFM) as: “Written by China expert Tony Lambert, this monthly newsletter shares current events, milestones and testimonies from around China to help you pray for Chinese people all over the world.” Source: Global Chinese Ministries 2009, ‘The Protestant Church in Fujian province’, OMF (overseas Missionary Fellowship) International website, April
[7] RRT Research Response, CHN31015, 8 December 2006
[8] See Sven-Erik Brodd (2019) Chinese Christianity in international perspective: some remarks on ecclesiology and fundamental concepts engaging East and West, International Journal for the Study of the Christian Church, 19:2-3, 81-102, DOI:10.1080/1474225X.2019.1656465

The DFAT Country Information Report, People’s Republic of China (dated 22 December 2021) provides the following information regarding Christians in China:
3.28Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.
3.29Authorities have regulated Christianity to make it more ‘China-oriented’. Bibles are increasingly difficult to obtain and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media but have not been implemented at the time of writing. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.
3.30Consistent with Yang’s theory of the three markets, many ‘grey market’ churches have operated relatively openly for many years. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.
3.31In a 2018 report, the Pew Research centre ranked social hostility to people of different religions as low in mainland China, much lower than in Australia. Similarly low scores on hostility are found in other parts of East Asia. DFAT does not rule out the possibility of isolated societal discrimination. For example, a Christian may miss out on job opportunities based on fear that they will proselytise to clients and attract adverse government attention, but DFAT is not aware of incidents.
Applicant’s oral evidence
The applicant was born in Fuqing City, Fujian Province, China and is currently aged [Age 1] years. He completed the third year of Senior High School but did not undertake any tertiary studies. Until he arrived in Australia, he worked in [Workplace 1]. His parents, wife and three children are still living in Fuqing. His daughters are aged [Age 2] and [Age 3] and his son is aged [Age 4] years. The applicant also has a younger married brother living in Fuqing City.
All of the applicant’s family are Christians and regularly attend church. His parents, brother and wife and children attend different churches. His parents attend a different church from that attended by him and his wife and children because they don’t speak Mandarin well and attend a church where the members speak a dialect.
The applicant arrived in Australia [in] July 2015 on a Visitor visa. He experienced no difficulties in leaving China.
The applicant considers himself to be a Christian and was raised as one for as long as he can remember. As a child he attended church meetings with his parents and his brother. The meetings were held in the homes of brothers and sisters at the church and at times they were held at the home of the applicant and his wife. The church members met twice per week (Tuesday and Sunday) when they prayed together and had bread. On Friday small groups of members had meetings. At the Sunday meetings, the members got together to pray and sing, have bread and drink from a cup and read the Bible together. They also spoke out for Jesus. Approximately 30 to 40 members attended the Sunday gatherings and between 5 and 10 members met in the Friday groups.
When asked by the Tribunal about what he meant by “drinking from a cup”, the applicant explained that after baptism everyone drinks from a cup. This represents the blood of Jesus who died on the cross to take away everyone’s sins.
The applicant further explained that the church in China he attended used a different version of the Bible than those used by other churches. This Bible (known as the Restore Bible) was translated from the Greek language by Brother Lee who died in the United States of America. He was a close colleague of Watchman Nee who established the family church in Fujian Province by “breaking bread” in a meeting with others in 1922.
The applicant told the Tribunal that there were two types of churches in China – registered and unregistered. His church is an unregistered one. In government controlled registered churches (which are called Three Cell Patriotic churches), the church is led by the Chinese Communist Party, the meetings are led by a minister and the members are ranked into different levels. In his church, the leader is Jesus and the church is the body. The members are part of the body of the church. In his church the services are led by an elder and they call each other brother and sister. They repeatedly use the words in the Bible, pray to Jesus and worship the Father, Son and Spirit. Their practice of calling for the Lord’s spirit and stamping their feet on the floor to express their heart and love of “our Lord” is different from the practices in government churches.
The applicant described himself as a devoted local church Christian who believes that the Bible is G-d’s word revealed and is the “breath of G-d”. He said he believed in G-d as three in one, being the Father, Son and Spirit. He believes that Jesus is the son of G-d and who was conceived within Maria by the Spirit and is the King of Redemption. In order to save all people, Jesus died on the Cross and three days later he was raised. At the end of the world, and the second coming of Jesus, he will judge and build his kingdom. All Christians will then be able to enter New Jerusalem forever.
The applicant explained that he did not celebrate any Christian festivals because the birth date of Jesus is not recorded in the Bible. However, he was aware that Christmas Day was celebrated by other Christians as the day Jesus was born and Easter was important as the day he was crucified. He said Easter means the day Jesus died and was buried and three days after his death he was raised. However, he was not aware whether the day Jesus was crucified had any special name.
When asked by the Tribunal about how he knew that his church in China was banned by the Chinese government, the applicant explained that he was aware it was banned because they defined his church as an “evil cult”. The church had been meeting since he was a young child and his parents had brought him into its activities. Although his parents attended different church meetings from himself and his wife, they were part of the same church. The only reason his parents attended different meetings was because that congregation conducted their meetings in a dialect, rather than in the Mandarin language.
The Tribunal discussed with the applicant, his claim that he was arrested and detained by Chinese police [in] February 2015. The applicant told the Tribunal that on that date he was attending a church meeting with six other members of the congregation. Shortly after the meeting commenced, Public Security Police (PSP) wrecked the door of the premises and rushed in. They pulled out an arrest warrant and accused the members of participating in an illegal religious meeting. They confiscated the worshippers’ Bibles and Bible study books. The brothers were assaulted by police and the group were handcuffed and taken in police cars to the Fuqing Detention Centre.
The applicant said that the staff at the Detention Centre used harsh measures to force the applicant and the other members of the church to make confessions. The applicant was questioned about the identities of the church elders and was detained in custody for six days. When the applicant and the other church members were released, they were put together and threatened. The police told the group that they had been lightly punished on this occasion but if they were caught again, they would be punished harshly by being placed in prison. Apart from the warning, the PSP fined the applicant RMB2000.
The Tribunal discussed with the applicant what he meant by saying that he was “brainwashed” by police. He explained that the police told him that their religious meeting was illegal and that they were part of an “evil cult.” They said that if they wanted to practise their religion, they should join a government approved Three Cell Patriotic Church.
None of the other members of the applicant’s family were detained with him [in] February 2015. The applicant explained that his wife and children were attending his cousin’s wedding. He did not attend the wedding because he had chosen to attend a church meeting on that day. According to his family’s tradition, only one adult family member needs to attend a wedding and in this case his wife had agreed to attend.
The applicant told the Tribunal that his wife had never been detained by police as a result of her religious activities. In 1987 his parents attended a church meeting with the applicant and his brother. All of the adults at the meeting were arrested by police because the authorities deemed it an illegal church meeting. The Tribunal suggested to the applicant that the country information it had considered, indicated that the crackdown on religious organisations by Chinese authorities commenced in the 1990s and not the 1980s as he asserted. The applicant’s response was that he was a devoted Christian. He explained that the Chinese government and media were controlled by the CCP and it kept information away from the public.
The Tribunal notes that in her decision, the delegate found that the applicant had provided the following bogus documents with his Visitor visa application:
·Chinese passport which shows he was born in Zhejiang Province. During the Departmental interview the applicant said that he was actually born in Fuqing Province and presented a valid Chinese passport of the same document number which confirmed his birthplace as Fuqing Province.
·Certificate dated 26 June 2015 which states that the applicant has worked as [an Occupation 1] for [Employer 1] since August 2012. However, in his Protection visa application form, the applicant states that he was [an Occupation 2] at [Workplace 1] from September 1996 to June 2015.
The delegate noted that the applicant declared in his Visitor visa application that his wife was [Ms A]. However, in his Protection visa application form he states his wife is [Ms B].
The delegate further noted that when these matters were put to the applicant at interview, he claimed that his migration agent had completed the Visitor visa application on his behalf. The delegate found that the applicant was responsible for the inconsistencies and false information.
The Tribunal discussed the above matters with the applicant, including its own concerns about the above discrepancies in the information provided to the Department in his Visitor and Protection visa application forms (as set out in the delegate’s decision) and invited his response. The applicant explained it was only during the interview with Departmental staff that he discovered that his Visitor visa application form contained the name [Ms A] as his wife. This was not correct as his wife’s name is [Ms B].
The applicant further explained that he gave his marriage certificate and other documents to his migration agent to prepare the Visitor visa application on his behalf. However, he did not read the visa application form before it was lodged because his agent told him that he had taken care of everything for him. He did not provide any fake or fabricated documents to his migration agent and did not give the agent the certificate dated 26 June 2015 in respect of his employment by [Employer 1]. The documents he provided were his passport, his identification card and his marriage certificate.
As discussed with the applicant at the hearing the DFAT Country Information Report: China 3 October 2019 states that members of both registered and unregistered religious organisations can face adverse attention by authorities when they are critical of the government or advocate for issues considered politically sensitive by the government or have a prominent role in a religious organisation.
Documentation provided by the applicant
The applicant provided the Department with a letter from [Church 1] in Melbourne[9] advising that the applicant comes to church meetings on a regular basis.
[9] Letter dated 23 July 2017 and signed by [C] and [D].
Following the hearing, the applicant provided the Tribunal with a photograph of himself with a group of people he described as his friends from [Church 1] in Melbourne.
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All of this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim.
The Tribunal does not have responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim (s 5A of the Act). Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[10]
[10] MIEA v Guo 91997) 191 CLR 559 at 596; Nagalingam v MILGEA 91992) 38 FRC 191; Prasad v MIEA (1985) 6 FRC 15 at 169–70.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[11] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.
[11] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 455 per Foster J at p.482.
If the applicant’s account appears credible, he or she should unless there are good reasons to the contrary be given the benefit of the doubt.[12] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[12] The United Nations High Commissioner for Refugees’ handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
Findings
The Tribunal accepts that the applicant was born in Fuqing City, Fujian Province, China and is [Age 1] years of age. He is married and has three children. The applicant’s family together with his parents and brother continue to live in Fuqing City.
Based on the material in the Department’s file and the applicant’s oral evidence, the Tribunal finds that a Chinese passport showing the applicant was born in Zhejiang Province, China and a certificate dated 26 June 2015, showing that he worked as [an Occupation 1] for [Employer 1] and information about the identity of his wife were provided in support of the applicant’s Visitor visa application. The Tribunal is satisfied that these documents were bogus and the information about his wife was false.
On the evidence before it, the Tribunal is satisfied that the applicant gave instructions to his agent to complete his Visitor visa application and provided information to his agent for this purpose. Although the applicant claims that his agent did not inform him of the details he included in the application form, the applicant provided his passport, marriage certificate and other documentation necessary for the application. He also acquiesced with his agent lodging the application on his behalf.
However, the Tribunal does not find as either plausible or convincing the applicant’s explanation for the bogus documents and false information provided to the Department. The Tribunal does not accept that the applicant would have failed to check the information included in his Visitor visa application form before it was lodged. Accordingly, the Tribunal does not find the applicant to be a credible or honest witness and considers that he is a person prepared to provide manufactured evidence in support of a visa application in order to achieve a favourable migration outcome.
Given these findings, the Tribunal’s concerns about the applicant’s general credibility and the fact that he provided false information to the Department in support of his Visitor visa application, the Tribunal considers that his evidence does not support his claims to be a Christian. This leads the Tribunal to find that it is not satisfied that he is a Christian, practises Christianity or comes from a Christian family. In particular the Tribunal is not satisfied that:
·     He fears harm on religious grounds based on Christianity.
·     He practised in a church which is banned in China and proclaimed an “evil cult”.
·     He was arrested and detained in China [in] February 2015 for six days.
·     While in detention he was brainwashed, assaulted and intimidated.
·     He was arrested together with other churchgoers while he was hosting a church gathering at his house in Fujian Province.
·     He was warned by Chinese authorities that if he was found practising his religion again, he would be severely punished.
·     If he returns to China, he will continue practising his religion.
The Tribunal considers that the evidence given by the applicant about the Christian faith and Christian practices is information that could have been obtained by the applicant from publicly available sources and memorised by the applicant. The Tribunal makes a similar finding in respect of the information provided by the applicant about the practices of local churches in China.
Based on its credibility findings regarding the applicant, the Tribunal does not also find as plausible, the applicant’s claim that he practised in a church (in China) which was banned and proclaimed an “evil cult”. Nor does the Tribunal accept that he was arrested by Chinese police [in] February 2015 whilst participating at a church meeting at his home; was detained in custody for six days; was brainwashed, assaulted and intimidated whilst detained; was threatened with harsher punishment if he was detained again for his religious activities; and would continue to practise his religion if he returns to China.
The Tribunal accepts the country information, which indicates that the crackdown on Christians in China commenced in the 1990s and therefore does not accept as persuasive, the applicant’s evidence that his parents were arrested and detained by police in 1987.
Although the letter from [Church 1] in Melbourne attests to the applicant regularly attending church meetings, the Tribunal notes that the authors of the letter do not explain their positions with the church, the basis on which they are able to provide an opinion regarding the applicant’s involvement with the church and the length of time the applicant has been attending church services. Accordingly, the Tribunal gives this letter no weight.

Whilst the Tribunal accepts that the photograph provided by the applicant depicts him with a group of people of Chinese ethnicity, there are no markings or other indicators on the photograph which indicate that the group are members of a church congregation in Melbourne. Accordingly, the Tribunal gives this photograph no weight.
Based on its findings regarding the church letter, the photograph and the applicant’s credibility, the Tribunal does not accept that the applicant has been attending [Church 1] in Melbourne or practising Christianity whilst living in Australia.
Given the above findings, the Tribunal considers that it is not necessary for it to consider whether it is reasonable to expect the applicant to relocate if he returns to China.
Based on the above credibility findings, cumulatively considered, the applicant does not face a real chance of serious harm arising from his religious faith and activities or any other related reason mentioned in s 5J(1)(a), either on arrival, in his home area or anywhere within the People’s Republic of China – whether now or into the foreseeable future.
Based on the same adverse credibility concerns, cumulatively considered, 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 either his home area in Fujian Province or anywhere within the People’s Republic of China more generally, there is a real risk of significant harm, arising from his claims about his past religious activities. In this regard, the applicant does not meet the Act’s complementary protection requirements as required by s 36(2)(aa).
At no stage did the applicant advance any other reason in his written or oral claims due to which he is owed Australia’s protection obligations.
Having considered the applicant’s claims and accepted circumstances both individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, 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 either his home area in Fujian Province or anywhere within the People’s Republic of China more generally, there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required by s 36(2)(aa).
Conclusion
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 s 36(2)(a).
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). For the above reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Mendes Da Costa
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.
…

1/newsletters/global chinese ministeries/gcm newsletter 2009/global chinese ministeries april 09/the protestant church in fujian province CISE1310071628. The information is said to be taken from November 2008 Tianfeng and History of Christian Missions in China by K.S. Latourette. Tianfeng is a Protestant magazine published by the TSPM/CCC and can therefore not be taken to be unbiased in relation to house churches.

[2022] AATA 1001

29 March 2022

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