1733162 (Refugee)

[2021] AATA 1394

1733162 (Refugee) [2021] AATA 1394 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1733162

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Booth

DATE:18 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 March 2021 at 6:52am

CATCHWORDS

REFUGEE – protection visa – China – religion – member of the “Shouters” church – unlawful non-citizen – failure to provide relevant details and documents – delay in lodging a protection visa – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavan v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramanium v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT & Anor [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 December 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be Chinese citizens, applied for the visas on 3 July 2017. The delegate refused to grant the visa on the basis that the primary applicant (the applicant) did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.

8. Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

9. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

10. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

11. 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.

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

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

14. Pursuant to s.36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgements of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of “practicable”, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne and Crennan JJ, Callinan J agreeing.

15. Pursuant to s.36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a “real risk”: MIAC v MZYYL [2012] FCAFC 147.

    Pursuant to s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally.

    Mandatory considerations

16. 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 (the Department), 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

17. The issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

18. The facts are taken from the applicant’s protection visa application as follows.

    Identity and country of reference

19. The applicant is a [age] year old male, born on [date] in Shenyang, Liaoning, China.

20. The applicant can speak, read and write Mandarin.

21. The applicant states that he is of Han ethnicity and of Christian (NFD) faith.

22. The applicant claims to have Chinese citizenship by birth and a copy of the applicant’s passport, held on the Department file, confirms that he is a citizen of China.[1]

    [1] Passport, Department file [[number], at folios 28-52].

23. The applicant stated that he is in a de facto relationship. The de facto partner is included in the application as a secondary applicant. No separate protection claims were made by the secondary applicant.

24. The applicant stated that he was unemployed when he lodged the protection visa application and advised he was employed as a [skilled worker] in Australia between February 2014 and December 2016. No employment has been recorded for the periods of residence in China.

25. The applicant completed primary and middle school in China. The applicant has not provided any details of Australian educational courses attempted after arrival in Australia.

26. In summary, the applicant claims that he fears persecution by the Chinese authorities due to his religion (“the Shouters” church).

    Migration history

27. The applicant arrived in Australia [in] July 2013 on a student visa (Subclass 573).

28. The applicant became an unlawful non-citizen [in] April 2016 after the student visa was cancelled for non-enrolment.

29. The applicant applied for a XA-866 protection visa on 3 July 2017.

    866 visa application

30. The applicant advised that he would not attend an interview with the Department which was scheduled on 14 December 2017.

31. The applicant’s claims for protection are contained in his protection visa application as follows:

    Provide reasons why this applicant left that country or those countries?

    REFER TO ATTACHED PERSONAL STATEMENT

    Did this applicant experience harm in that country or those countries?

    Applicant selected “no”.

    Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

    Applicant selected “no”.

    Give details for why this applicant did not try to move to another part of the country or those countries.

    REFER TO ATTACHED PERSONAL STATEMENT

    Explain what the applicant thinks will happen to them if they return to that country or those countries:

    REFER TO ATTACHED PERSONAL STATEMENT

    Does this applicant think they will be harmed or mistreated if they return to that country or countries?

    Applicant selected “yes”.

    Give details including:

    • the type of harm or mistreatment this applicant is likely to experience
    • the person/people who would be responsible for the harm or mistreatment
    • why they would harm or mistreat this applicant.

    REFER TO ATTACHED PERSONAL STATEMENT

    Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

    Applicant selected “no”.

    Give details about why this applicant thinks the authorities could not, or would not, protect them.

    REFER TO ATTACHED PERSONAL STATEMENT

    Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

    Applicant selected “no”.

    Give details about why this applicant is unable to relocate.

    REFER TO ATTACHED PERSONAL STATEMENT

    EVIDENCE AND SUBMISSIONS

32. The applicant had not provided submissions to the Department.

33. The applicant provided the following undated statement to the Department (Folio 91):

    Personal Statement

    My name is [applicant name]. I was born on [date] in Shenyang, Liaoning Province, China.

    [In] February 2014, I arrived in Australia on a student visa. Later my student visa was cancelled and I had to overstay my visa in Australia because I feared to return to China.

    I am a devoted member of “the shouters” church in China, but Chinese Government thinks it is evil cult. We could only practice our religious belief secretly and underground. If I was identified, I will be persecuted and/or suffer significant harm, mentally and/or physically if I went back to China because of my religious belief. The Chinese constitution provides for freedom of religious belief, but limits protections for religious practice to “normal religious activities”. The government applies the term “normal religious activities” in a manner that does not meet international human rights standards for freedom of religion. The government’s respect for and protection of religious freedom deteriorated. Religious groups independent of the five official government patriotic religious associations have difficulty obtaining legal status and can be vulnerable to coercive and punitive action by the Religious Affairs Bureau, the Public Security Bureau and other party or government security organs. My religion does not fall into the category of the five official government patriotic religious associations. Therefor I will not be able to have the freedom of religious belief in China.

    As a devoted member of our church community, if I go back to China, I will be forced to stop to believe, which I surely could not do. If I keep practising my religious belief, there will be a real chance of being arrested and put in jail and be mistreated.

    The whole country has only one policy to the religion as authorized by China Communist Party. The religion control applied to the whole country. I will not stop my religious belief, therefore wherever I hide in China, there is still significant risk that I would be persecuted by the local authorities. Furthermore, as a person, I should have the natural right to live as a person, but not hiding everywhere to avoid persecution due to my belief. The government agencies will for sure detain me if I continue belief. They will force me to give up my belief and stop religious activities. It is persecution and significant harm to me. They will not protect my freedom of religious belief which they are ought to protect.

    It is the authorities in China that put our sisters and brothers in horror. It is well-known and published that Chinese government’s respect for and protection of the right to religious freedom deteriorated. The Chinese Communist Party thinks the religion is an adverse factor of the society, which might damage the society and their rule. They refer many religious groups as “Evil Cult”. They persecute our brothers and sisters.

    I hope Australian government can protect my religious belief so I could practice my religion freely without fear of persecution.

    EVIDENCE AND SUBMISSIONS

34. The applicant provided submissions in support of the application to the Tribunal. They are dated 11 December 2020 and are in the following terms (photographs and newspaper or internet articles omitted):

    [The applicant] claimed that he is a member of “the shouters” church in China which was defined as “evil cult” by Chinese authority. Members of “evil cult” will face harassment, detention and imprisonment for engaging in practices according to Australia’s DFA report. (Australia 21 Dec. 2017, para. 3.54, 3.55) …

    Members of the shouters are tortured and forced to work without time to pee and rest…..

    Some members of “the shouters” even received lengthy prison sentence. Just because different religion, some people will be put into prison for life time…

    In addition, the applicant has a [child] who was born and raised in Australia. Because the religion of child’s parent, the child will be harnessed in school and in society, and grow up in a discriminate environment which will be very bad for the child. Let alone the parent were captured and sent into prison, the child will grow up in a foster care with even worse biased. We hope you can also consider this factor when deciding whether the applicant and his family are suitable for protection visa.

    Because the applicant is a member of “the shouters”, his name was recorded in the system and will be caught whenever he return to China. Please see following sentence evidence about shouters members which was reported by state media (China Youth Daily) and other websites.

35. The applicant gave evidence at the hearing, with the assistance of a translator, the substance of which was as follows. The applicant confirmed that, in summary, the basis for his claim for protection in Australia was that that he fears persecution by the Chinese authorities due to his religion (“the Shouters” church). The applicant was asked whether he made any claim for protection in Australia on any other basis. The applicant responded as follows: “a member of Shouters, some get persecuted”. He did not elaborate. When the question was repeated he said “no”.

36. The Tribunal asked the applicant why he left China and now claimed protection in Australia. He responded “because I was persecuted when I was in my country”. He did not elaborate. The Tribunal invited the applicant to explain his case. He said “after I came to Australia I had my own child, therefore I think it is the child goes back with me the child will also be persecuted”. He did not elaborate. He was asked whether he wanted to say anything further. He responded “if I go back to my country my wife and I will be arrested, no one will look after the child, and the child will be impacted a lot, and will be discriminated also, because his parents are members of Shouters, therefore child will be severely discriminated”. He did not elaborate. When invited to continue he said “when I’m in Australia I can believe in my religion, and in Australia I can pursue my own religion beliefs, I can freely express my own thinking, when I’m in Australia, I can sleep with the peace of mind and I can do anything I like to do, and I can stay with my wife and child, in China I cannot believe my own religion and cannot express my thinking, police will arrest me, if my wife and I are arrested, how the child will be, the child needs the parents, some of our members after they have their meal, they are arrested the next day by the police, and put into custody five years or 10 years, or the whole life, that is done with force”. When asked whether he had anything further to add to his application for review he said “basically that is the situation I will face if I go back to my country, in Australia I’m living happily, my wife and family can believe in our own religious beliefs, and we can leave a free life, and my child can grow up healthily, in Australia I don’t have to worry the police will arrest me in the night”.

1. The applicant declined an invitation to add anything further. The Tribunal proceeded to ask the applicant some questions arising from his evidence; the substance of the questions and the applicant’s responses were as follows.

2. The Tribunal observed that the applicant had mentioned in his declarations that he had been arrested in China in 2009. He was invited to explain his comment. He responded “in 2009 I had joined the Shouters and after a while suddenly police came to my house”. He did not elaborate. When asked whether he wanted to add anything further he said “after I was arrested, they released me until 2012”. He did not elaborate. When asked why he was arrested he said “because I join Shouters, I was a member of Shouters”. He did not elaborate. When asked where he was imprisoned he said “[a Jail] in Sheng Yang city, in Laio Ling province”.

3. The Tribunal observed that detention and incarceration had not been mentioned by the applicant in his written application for a protection visa. He was asked to explain the discrepancy. He replied “previously I did not tell”. He did not elaborate. When asked whether he had any documents to prove his incarceration he responded “later I asked my family member and asked for verdict”. The Tribunal observed that the applicant had lodged his protection visa application on 3 July 2017 and had ample time to prepare. He was again asked whether he produced any documents to prove his incarceration. He said “later I can get it to my lawyer”.

4. The Tribunal turned to the applicant’s visa history in Australia. The applicant confirmed that he arrived in Australia [in] July 2013 as the holder of a student visa. The applicant, in response to a question, confirmed that he was able to leave China freely and voluntarily. The applicant confirmed that his student visa was cancelled [in] April 2016. When asked whether he had completed any courses of study between [July] 2013 and [April] 2016 he said “no”. The applicant confirmed that he applied for a protection visa on 3 July 2017. When asked why it had taken him so long to apply for a protection visa he said “because previously I did not know, later I heard from members of our group, later I met members here and they told me I could get protection visa”. He did not elaborate.

5. The Tribunal asked the applicant when he had become involved in the Shouters church in Australia. He said “in 2017, but I forget which month”. When asked whether he had involvement with the Shouters church prior to 2017 in Australia he said “because I did not meet the members previously”. The Tribunal invited the applicant to say anything further about that Shouters church or religion generally. He said “in Shouters we can say anything we want to say, we can discuss our religious beliefs, here with the members I can any time or anywhere do I gather in or outdoor”. He was asked where he attended for the purposes of practising the Shouters religion. He said “your home or in members houses or they come to my house, I casually I go to the religious church, in the south-west area”. He was asked to provide the name and address of the church. He said “I don’t know, every time the member pick me up and I did not pay attention to that”.

6. When asked whether he believed he would be persecuted if he returned to China he said “yes”. He did not elaborate. When asked whom he believed would persecute him he said “by police”. When asked whether there was any reason he could not relocate within China if he returned he said “because in China, the whole police are united in whatever you go they are the same, because our Shouters are defined as a cult, our illegal organisation”.

7. When asked whether the applicant was currently employed in Australia he said “I do some job”. He did not elaborate. When asked as to his income he said “a little, only go for support of family”. The Tribunal put to the applicant he was being evasive and asked him to state his income to which he said “round $1000 per week”.

8. The Tribunal asked the applicant whether his wife was currently employed to which he said “no”. When asked whether his wife had worked while she had been in Australia he said “yes when she did not have the child”. He was asked to provide details of his wife’s employment and when she ceased working. He responded “she did [some work] in 2017”. When asked as to his wife’s income he said “no income, she worked for free”. When the applicant was asked if he had understood the question he said “she was illegal and did not lodge tax returns”. When asked as to his wife’s income he said “about $180 each day”.

9. When invited to add anything further he said “I still want to tell you of three people of family will be arrested”; he added “I will provide evidence of employment in 2019 and verdict it possible”. The Tribunal invited the applicant to provide any further document by 4 pm on 19 February 2021.

10. The applicant’s representative declined an opportunity to make any submissions to the Tribunal.

11. No further material has been provided to the Tribunal.

12. Based on the applicant’s answers to other questions in the application for a protection visa, the substance of which is also set out above, the Tribunal finds that the applicant:

    • is a [age] year old male, born on [date] in Shenyang, Liaoning, China.
    • can speak, read and write Mandarin.
    • is of Han ethnicity and of Christian (NFD) faith.
    • is a citizen of China.
    • is in a de facto relationship. The de facto partner is included in the application as a secondary applicant. No separate protection claims were made by the secondary applicant.
    • was unemployed when he lodged the protection visa application but he was employed as a [skilled worker] in Australia between February 2014 and December 2016.
    • completed primary and middle school in China.
    • arrived in Australia [in] July 2013 on a student visa (Subclass 573).
    • became an unlawful non-citizen [in] April 2016 after the student visa was cancelled for non-enrolment.
    • applied for a XA-866 protection visa on 3 July 2017.

    THE COUNTRY INFORMATION

13. In accordance with Direction No.84 made pursuant to s.499 of the Act, the Tribunal had regard to country information assessments prepared by DFAT. The DFAT report titled “People’s Republic of China” dated 3 October 2019 relevantly stated as follows (footnotes omitted):

    SECURITY SITUATION

    2.55 Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration (hukou, see Hukou (household registration) system, Health and Children)); the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military (see also Military and Police). In November 2013, President Xi established a new National Security Commission to strengthen coordination of both international and domestic security issues.

    2.56 Security personnel and surveillance technology are ubiquitous throughout China. Increased artificial intelligence (AI) capabilities serve China’s economic and military modernisation interests, while simultaneously enhancing Party stability through increased power to surveil and control the population (see The Social Credit System).

    2.57 Some reports estimate 170 million surveillance cameras have been installed in cities and towns across the country in the past decade. Everyday street crime and violence in China’s major cities is generally low. Sensitive social groups, including religious organisations, Uighur and Tibetan ethnic groups, Falun Gong practitioners and human rights activists, have alleged that the government uses a range of surveillance methods to monitor their activities. Since 2016, media have reported that Chinese police and security agencies have begun combining photo databases, artificial intelligence and facial recognition technology installed in surveillance cameras to track down criminal suspects and ‘destabilising agents’ in society.

    2.58 Since 2010, China’s expenditure on internal security agencies such as the police, the PAP, the courts and the prison system has outstripped spending on the military. In 2016, the gap between domestic security and defence expenditure reportedly reached a record high of 13 per cent, with domestic security expenditure increasing by 17.6 per cent compared to the previous year, to exceed RMB 1 trillion (AUD 209.4 billion), while defence expenditure only increased by 7.5 per cent. However, the actual amount China spends on its military and domestic security is widely debated. Most foreign experts, governments and relevant publications concur that Chinese statistics on security spending do not include some outlays that are standard reporting for most other countries, and note there is no way to verify the accuracy of official figures reported by China.

    2.59 Domestic security expenditure across all provinces and regions increased by 215 per cent between 2007 and 2016, and continued to grow in 2018 - particularly in sensitive minority regions such as Xinjiang and Tibet, where security remains volatile due to heightened ethnic tensions and government attempts to curb perceived threats to social stability (see Ethnic Uighurs and Ethnic Tibetans). Over the same 10 year period, security expenditure increased by 411 per cent in the Xinjiang Uighur Autonomous Region (XUAR, Xinjiang), by 404 per cent in the Tibet Autonomous Region (TAR) and 316 per cent in Qinghai (where the population is approximately 25 per cent Tibetan). In February 2018, Xinjiang reported a 92.8 per cent increase in its domestic security spending, from RMB 30.05 billion (AUD 6.3 billion) in 2016 to RMB 57.95 billion (AUD 12.9 billion) in 2017. The increase in security spending in TAR is estimated at 9.3 per cent, although TAR maintains its position as the region with the highest per capita domestic security expenditure of all provinces and regions since 2008, ahead of Xinjiang. Analysts of Chinese security expenditure suggest that per capita domestic security spending in sensitive minority regions is now higher than per capita domestic security spending in the US or Russia (PP adjusted by wage levels).

    2.60 In June 2017, China’s National People’s Congress Standing Committee also passed a new National Intelligence Law (2017; amended 2018) which forms part of a national security legal architecture introduced in 2014 which includes the Counter-Espionage Law (2014), Criminal Law (1979; Amended 2015), National Security Law (2015), Anti-Terrorism Law (2015) and Cyber Security Law (2017). The National Intelligence Law calls upon all elements of Chinese society, including individuals, to contribute to national intelligence work. The law inter alia empowers security agencies: to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’; to monitor suspects, raid premises or seize vehicles during the investigation of domestic or foreign individuals or groups; to gain priority use of transportation or telecommunications equipment, buildings or enterprises; and to employ ‘technical reconnaissance’ measures with permission. The law explicitly requires security agencies to act in strict compliance with laws relating to the protection of human rights, and states agencies should not exceed their authority or abuse their powers. DFAT is aware of reports of kindergarten children being given homework instructing how they should assist state security officers.

    ARBITRARY DEPRIVATION OF LIFE

    4.1Article 37 of China’s Constitution states that ‘freedom of the person’ of citizens of the People’s Republic of China is inviolable.

    Enforced or Involuntary Disappearances

    4.3Chinese law permits security agencies to detain suspects without charge for varying lengths of time during an investigation, with the conditions dependent on the nature of the offence investigated (see Arbitrary Arrest and Detention). Police have broad powers of detention during investigations relating to national security or intelligence matters, as defined by the CCP or state agencies. In the course of the anti-corruption campaign, the CCDI has detained many Party members suspected of corruption, holding some for several months before delivering them to the state criminal justice system (see Corruption).

    4.4The authorities' power to restrain the liberty of citizens through a number of legal or extra-legal measures applies to children as well as adults: Then six-year-old Gedhun Choekyi Nyima disappeared with his parents in 1995, after the current Dalai Lama recognised him as the reincarnation of the Panchen Lama, Tibet’s second most senior spiritual leader. The Chinese authorities declared the nomination invalid and installed another six-year-old, Gyaltsen Norbu, as Panchen Lama in his place (see Buddhists). No international observer (diplomatic, media or NGO) has seen Gedhun Choekyi Nyima since 1995. The then 16-year-old son of a ‘709’ lawyer (see Human Rights Defenders (including Lawyers)) was arrested in 2015 at Beijing airport on his way to school in Australia, and again later that year on the Chinese-Myanmar border. In November 2017, he was denied exit from Beijing airport while again seeking to travel to Australia for study.

    TORTURE

    4.14China ratified the Convention against Torture and Other Inhuman and Degrading Treatments in 1988. Chinese law prohibits the physical abuse of detainees and forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. Amendments to the Criminal Procedure Law that exclude evidence, including confessions, obtained through illegal means, including under torture, took effect on 1 January 2013.

    4.15In 2015, the UN Committee against Torture expressed serious concern over consistent reports indicating torture and ill-treatment were still deeply entrenched in China’s criminal justice system (see Torture). In 2016, in its concluding observations on the Fifth Periodic Report of China in January 2016, the UN Committee against Torture also expressed concern over a number of continuing practices that it assessed increased the risk of torture of detainees. These practices include: lengthy pre-trial detention; denial of access to a private lawyer; withholding of information from the detainee’s family in cases deemed ‘endangering state security’, ‘terrorism’ or serious ‘bribery’; ‘residential surveillance’ (see Arbitrary Arrest and Detention); the lack of independence of medical practitioners examining detainees; revisions to laws that prohibit (undefined) ‘conduct that disrupts court order’; lack of judicial or procuratorial oversight of criminal investigations; lack of information on past investigations of allegations of torture by security officials; unexplained deaths in custody; solitary confinement and use of restraints; a lack of information on inspection of detention facilities; exclusion of matters relating to ‘State secrets’ from the government’s reporting on torture; and the broad definition of many offences, including ‘endangering State security’, ‘picking quarrels and provoking troubles’, and ‘gathering a crowd to disturb social order’.

    4.16Family members of the ‘709 lawyers’ (see Human Rights Defenders (including Lawyers)) wrote an open letter to world leaders on 1 March 2017 detailing allegations of mistreatment of their family members while in detention. The allegations included: forced consumption of drugs; marathon interrogation sessions and sleep deprivation; beatings; the application of heavy weights on legs; being almost entirely submerged in water for several days at a time; and threats and detention of family members. Individual lawyers detained during the ‘709’ crackdown have also detailed allegations of mistreatment at the hands of the authorities.

    4.17Falun Gong practitioners have reported mistreatment in custody including sleep deprivation, enforced standing and kneeling for extended hours, nasal feeding (forced feeding through a tube inserted into the nostril), being forced to drink dirty or salty water, shackling and beatings (see Falun Gong). International human rights reporting continues to document use of psychological pressure against Falun Gong practitioners. Media, human rights groups, members of the international community, and Uighurs have also reported the use of violence and torture of Uighurs in re-education centres in Xinjiang (see Ethnic Uighurs, Muslims).

    4.18Media and Uighurs’ reports of physical and psychological maltreatment have included, but are not limited to, interrogation, inappropriate clothing for climate, sleep deprivation, administration of electric shocks, having weights tied to feet, indefinite confinement, forced administration of medication, psychiatric drugs, injections, blood tests, DNA sampling, and medication to stop menstruation, as well as intrusive medical examinations.

    4.19DFAT considers allegations of torture, particularly those detailed in cases deemed politically sensitive, to be credible.

    CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

    Arbitrary Arrest and Detention

    4.20The Ministry of Public Security manages pre-trial detention facilities and procedures. Authorities with the power to authorise the detention of a criminal suspect include (but are not limited to) the Public Security Bureau (PSB), Ministry of State Security, and the Anti-Smuggling Bureau.

    4.21Under the Criminal Procedure Law, the term ‘arrest’ refers to the stage of the criminal prosecution process when authorities determine there is sufficient evidence to proceed with prosecution. A suspect can be, though is not necessarily, detained prior to being formally arrested. A detention warrant must be issued to a suspect’s family within 24 hours of their detention. The formal arrest of a detainee must be approved by the Procuratorate, which can take up to 37 days. Unless released on bail, criminal suspects will generally remain detained until the conclusion of the judicial process, including appeals. In practice, the rate of release on bail is extremely low. Bail is not considered a right; under the Criminal Procedure law bail ‘is not an individual right designed to minimize restraints on freedom, but an alternative pre-trial coercive measure. When bail is granted, it is usually on the initiative and for the convenience of the police.’

    4.22These procedures are not subject to judicial oversight. The post-arrest investigation period can be up to seven months, and preparation of indictment can take up to six and a half months. The total time required to hear a case and issue a verdict in standard cases ranges from twenty months to an indefinite period. Security agencies can hold individuals for years while they progress through the charge, arrest, investigation, court hearing and sentencing processes. Individuals convicted of an offence do not move into the prison system until their case is finalised, including any appeal processes. Time served in a detention centre is deducted from their custodial sentence.

    4.23Amendments to the Criminal Procedure Law (1979; amended 2012, 2018) require the prompt delivery of suspects to detention facilities following arrest. The law stipulates that interrogations must take place in the detention facility, and must be recorded in audio and video. The revised law also requires judicial officials to investigate cases of extraction of confessions under torture.

    4.24Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. Police can hold individuals for up to 30 days in criminal detention before deciding whether to pass the case to prosecutors, and for an additional seven days prior to formal arrest. Police detention beyond 37 days requires prosecutorial approval of a formal arrest and notification of family members within 24 hours of detention. The law permits officials not to provide notification if doing so would ‘hinder the investigation’ or for cases pertaining to ‘national security, terrorism, and major bribery’. During periods and anniversaries considered politically sensitive, authorities often detain activists without charge for the full 37-day period.

    4.25Administrative detention is regulated under the law on Penalties for Administration of Public Security (2006). Administrative detention is imposed for crimes of a minor nature, and which are not serious enough to warrant criminal prosecution and punishment under the Criminal Procedure Law or Criminal Law. It is imposed by public security organs at the local (county) government level. While there are various forms of administrative detention in China with different procedures and time-limits, the maximum period of administrative detention for any one act is 15 days, and where multiple periods of administrative detention are imposed concurrently for several acts, the maximum period of detention is 20 days.

    4.26Under the Criminal Procedure Law, police may also detain individuals in ‘residential surveillance at a designated location’ (RSDL) away from their home for up to six months before formal arrest or release. RSDL can be used to detain individuals suspected of crimes endangering national security, involving terrorist activity, or involving serious corruption (see Corruption), or where the suspect or defendant does not have a fixed residence. Authorities must notify relatives of individuals placed under formal arrest or residential surveillance in a designated location within 24 hours, unless notification is impossible. The notification does not need to specify the reason for or location of detention. Suspects do not have the right to meet defence lawyers in these categories of cases. In cases involving national security or terrorism, police are authorised to detain a suspect after arrest for up to an additional seven months while investigating the case. Following investigation, the procuratorate has an additional 45 days to determine whether to file criminal charges of detention, during which time detention can continue. The law explicitly allows detainees to meet with defence counsel before criminal charges are filed but this rarely happens where cases are considered politically sensitive. After filing charges, authorities can detain a suspect for an additional 45 days before beginning judicial proceedings.

    4.27RSDL has been criticised for exposing detainees to risk of mistreatment (see Torture) and for enabling conditions of detention that produce forced confessions. While evidence obtained while in RSDL should be able to be excluded in court, rarely is this the case. Human rights groups report RDSL has been increasingly used to detain activists, human rights lawyers and government critics in recent years, and claim police training dormitory facilities have been repurposed for RSDL.

    4.28Locations used to enforce RSDL are often referred to as ‘black jail,’ however the term ‘black jail’ more correctly describes short-term detention in rented/owned, run down hotel rooms or similar, often used for petitioners, criminals and those under suspicion of less sensitive allegations, as a coercive measure. The primary distinction between RSDL and ‘black jail’ is that RSDL is a formal feature of the Chinese legal system. RSDL also reportedly often entails treatment more severe than in ‘black jails,’ and occurs in government-run, custom fit for purpose facilities, whereas black jails are quasi-administrative holding centres for petitioners and criminals.

    4.29Public security authorities continue to use other forms of administrative detention to suppress political and religious dissidents, sex workers, drug users and petitioners. Authorities also detain family members of dissidents: poet Liu Xia, widow of Nobel Peace laureate Liu Xiaobo, was released in July 2018 after being under house arrest for nearly eight years following her husband’s nomination for the Nobel Peace Prize in 2010 (see Deaths in Custody). Authorities have also curtailed the freedom of family members of ‘709’ lawyers (see Human Rights Defenders (including Lawyers) and Uighur and Tibetan activists (see Ethnic Uighurs and Ethnic Tibetans). The law does not provide for house arrest. Individuals facing this type of detention do not have the right to legal counsel or due process. The Chinese government abolished its ‘re-education through labour’ policy in December 2013, although media and human rights groups claim re-education through labour (including in prisons and linked to Xinjiang-based re-education centres) continued in 2018 and supported production in factories for overseas markets (see Detention and Prison and Ethnic Uighurs).

    4.30DFAT assesses that reports that security authorities use extra-legal detention for politically sensitive investigations are credible.

    STATE PROTECTION

    5.1 Article 5 of the Constitution states that ‘no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws’.

    5.2 There is no organisation in China tasked with enforcement of the Constitution and courts do not have the general power of judicial review which would allow them to invalidate laws on the grounds they violate the Constitution. The Constitution states the National People’s Congress and its Standing Committee have the power to review laws that violate the Constitution, but, in practice, these powers are rarely exercised, with only one instance of regulations being rescinded.

    5.3 Crimes are investigated by public security organs, generally the PSB, but also including other organs such as the Anti-smuggling Bureau, Ministry of State Security and National Supervision Commission, prosecuted by the People’s Procuratorate, and tried in the People’s Courts. All lawyers must be registered with, and operate in compliance with, regulations issued by the All China Lawyer’s Association, which is directly supervised by the Ministry of Justice (see Human Rights Defenders (including Lawyers)).

    5.4 The Criminal Procedure Law and Criminal Law regulate arrest and detention. The Criminal Procedure Law sets out the procedures to be followed in the criminal process. It applies prior to a verdict being issued by a court and the Criminal Law is applied after a verdict has been issued. Criminal prosecution can be lengthy, and it can take in excess of one year for a case to progress from initial detention to verdict and sentencing.

    Military

    5.5 China has the largest active military service in the world. The People’s Liberation Army (PLA) reports to the Party’s Central Military Commission, which is headed by the president (and Party General Secretary). The PLA currently has over two million members. It serves the Party, rather than the Chinese state. In March 2018 the Ministry of Finance proposed increasing China’s defence budget by 8.1 per cent, from RMB 1.044 trillion (AUD 218.6 billion) in 2017, to RMB 1.107 trillion (AUD 231.8 billion) in 2018. The PLA has shrunk significantly from an estimated three million active personnel in 1992. It continues to decrease as it seeks to improve the quality of its staff and systems. The PLA has five branches of service: Army, Navy, Air Force, Rocket Force (strategic missile force) and Strategic Support Force (space and cyber forces). While China reported spending 1.28 per cent of GDP on the military in 2016, actual military expenditure is probably higher. The military service age is 18-24 years for selective compulsory military service, with a two-year service obligation. There is no minimum age for voluntary service (all officers are volunteers). The PLA has not been deployed against Chinese citizens in China since June 1989, when PLA units killed several hundred protesters in Beijing’s Tiananmen Square and surrounding areas.

    Police

    5.6 The Ministry of Public Security oversees the police force, which is organised into specialised police agencies and local, county, and provincial jurisdictions. The government no longer publicises the size of its police force, but media estimates place the number at around two million. The People’s Armed Police, a paramilitary force responsible for internal security issues such as riots, terrorist attacks, natural disasters and other emergencies, has an estimated 660,000 members. Police undertake four-year training programs that include courses in procedural law and public order, as well as extensive physical training. Performance is statistics-driven and a national ranking system provides incentives for compliance. Local-level police are generally entitled to receive housing and food allowances as part of their monthly salaries, which are calculated according to local conditions rather than a national standard.

    5.7 Maintaining public order and social stability – defined as defending CCP rule – are the key priorities of the police force in China, and outweigh protection of the public from criminal activity. Regular police do not generally carry firearms but can do so in areas of heightened security (such as in Xinjiang and Tibet). Reflecting the power held by the Ministry of Public Security, procuratorate oversight of the police is limited, localised and ad-hoc.

    5.8 Chinese citizens have the right to lodge complaints against the police in their city of residence through a telephone hotline, or online complaints website, in person, or in writing to the Public Security Bureau Complaints Office. Local authorities have targeted petitioners (including those with complaints against police) with punishments including arrest and detention (see Protesters/petitioners). Complaints against police rarely lead to disciplinary action and, where investigations are announced, their outcomes are not publicly released (see also Deaths in Custody).

    5.9 Police are unable to open a case until the prosecutor is confident there is a high chance of conviction. Police are required to send a brief to the prosecutor seeking formal permission to arrest, and only very clear- cut cases are generally approved, accounting for the 99 per cent conviction rate. When the procuratorate deems there is not enough evidence to justify arrest, it sends the case back for further investigation. Sources report that police are under pressure to obtain confessions prior to trial, and to ensure success in all police investigations. However, China has taken some positive steps to protect individual rights through amendments to the Criminal Procedure Law prohibiting the use of confessions obtained under torture as evidence, and requiring interrogations in major criminal cases to be audio and video recorded. However, these protections do not apply in cases involving national security, which are investigated outside of China’s criminal justice system. In practice, the number of cases in which evidence is not accepted at trial because it was obtained through torture or other coercive means is still very low, and only very few cases of this nature have been reported.

    5.10 DFAT has no additional information on the quality of local policing or responsiveness of the PSB to local crime.

    Judiciary

    5.11 China has explicitly rejected ‘Western notions’ of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. The CPP approves judicial appointments and personnel decisions. Jurors are also appointed to a jury pool by the CCP for a five-year period and therefore serve the needs of the Party. The CCP also exercises direct influence in individual cases through Political-Legal Committees (PLCs) at each level of government. PLCs supervise and direct the work of state legal institutions, including the courts, and are typically staffed by court presidents, the heads of law enforcement agencies, officials of the justice ministry or bureau, and other legal organs. Although PLCs focus primarily on ideological matters, they can influence the outcome of cases, particularly when the case is sensitive or important.

    5.12 China’s 2016 White Paper on Judicial Reform includes measures to reduce political influence on courts, improve access to justice, strengthen professionalism of the judiciary, and increase transparency. In an effort to curb local corruption, new policy shifts funding of courts from the local to provincial level and courts have started recording attempts to influence proceedings. Since May 2015 there has been a mandatory nation-wide case filing system, through which courts cannot refuse to hear cases without sound legal justification.

    5.13 Enforcement of court judgements remains an issue. However courts now publish many routine judgements online on the Open Trial Network (OTN). The OTN is a case database platform, which increases transparency (for listed cases) to help enforce judgements and parole. If individuals or entities do not comply with fines or fulfil judgements, they can face other restrictions in line with the SCS (see The Social Credit System). Nevertheless, OTN coverage is patchy and not all cases reported in the media are listed. The 709 crackdown cases, for example, are not listed on the OTN. Only final judgements can be viewed on the OTN; intermediary judgements are not always accessible if there is an appeal.

    5.14 Articles 183, 274 and 196 of the Criminal Procedure Law require cases involving state secrets, personal privacy, trade or commercial secrets or where the defendant is under 18, to be tried in a closed court. Cases involving trade or commercial secrets are also held in private if any party concerned in the matter requests a closed court session. However, Article 196 requires all verdicts to be issued in open courts.

    5.15 Judicial reforms implemented in recent years have led to an increase in administrative law cases, albeit from a very low base, including local cases of official abuse of power. For example, the Shenzhen court has published figures for administrative cases showing 10,133 administrative cases in 2015, compared with 9,167 in 2014 and only 3,840 in 2013. In 2015, the government lost 381 (15.2 per cent) of 2508 lawsuits against it. While improving, these relatively low numbers - even in one of China’s wealthiest and most international cities (Shenzhen has a population of 12 million) - indicate the difficulties faced by ordinary people in pursuing cases against officials.

    5.16 A number of special courts also play a key role in the judicial system. The Standing Committee of the National People’s Congress has the power to list the functions and powers of special courts and set up new special courts. Special courts include the military courts, maritime courts, railway transportation courts, forestry courts and the intellectual property courts. The military court, established within the People’s Liberation Army, is responsible for hearing criminal cases involving servicemen and women. This is a relatively closed system without external supervision.

    5.17 The maritime court system deals with highly specialised issues related to waters under Chinese jurisdiction. Maritime courts operate in Shanghai, Tianjin, Qingdao, Guangzhou, Wuhan, Haikou, Xiamen, Ningbo, and Beihai, and there are also 39 detached tribunals in major port cities across 15 provinces. Maritime courts have jurisdiction over maritime tort disputes, maritime contract disputes, sea environmental protection cases, and maritime administrative and special procedure cases, including any disputes in this category arising between Chinese and foreign citizens, organisations and enterprises. The procedures of the maritime courts are governed by the Civil Procedure Law (1991; amended 2017), and where there is no provision in the Civil Procedure Law, the Special Maritime Procedure Law (1999) applies. However, maritime courts have no jurisdiction over criminal cases and other civil or administrative cases without a maritime element. In the event of a jurisdictional dispute regarding the existence of a maritime element, the ordinary court at one level higher than the maritime court and the ordinary court seeking to exercise jurisdiction, will determine jurisdiction. The High People’s Court in the locality where a particular maritime court is located has appellate jurisdiction over judgments and orders of the maritime court. Sources claim the maritime court’s remit has, at times, increased to include administrative cases, labour cases involving unpaid workers, shop workers (sailors) and maritime pollution cases. The Maritime Courts connect with port and border authorities, and entry and exit can be prohibited if an Individual has a pending Maritime Court order.

    5.18 DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low.

    INTERNAL RELOCATION

    5.31 There are many opportunities for internal relocation in China and movement of people is fundamental to China’s push for continued economic growth and urbanisation. While there are no legal impediments to internal migration, the hukou system presents the biggest administrative impediment to freedom of internal movement (see Hukou (household registration) system). Those who have otherwise come to the attention of the authorities may also face impediments to freedom of movement (see The Social Credit System and Security Situation).

    5.32 Linguistic and cultural barriers are not an inhibiting factor for ethnically Han Chinese to move away from their place of hukou registration. Ethnic minorities may face varying degrees of difficulty or discrimination, depending on their ethnicity and their destination (see also Uighurs and Tibetans).

    5.33 DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score (see The Social Credit System, Religion, Political Opinion (actual or imputed) and Groups of Interest). People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel (see Security situation and The Social Credit System).

    Hukou (household registration) system

    5.34 The hukou system ties access to government services, such as education above a certain level and health, to a citizen’s place of birth, or even their parents' place of birth, rather than their place of residence. Only an estimated 35 per cent of urban residents have an urban hukou. Chinese migrant workers (estimated at 282 million) who move away from rural areas for better employment opportunities, are unable to access key services and in some cases, face institutionalised discrimination. An estimated 60 to 100 million children have been ‘left behind’, either in their grandparents' care or alone, while their parents work in cities.

    5.35 The Ministry of Public Security reported 28.9 million new urban residency permits issued in 2016, mostly in third or fourth tier cities. The local governments of the largest cities, including Beijing, Shanghai, Guangzhou, Shenzhen, Chengdu, Wuhan and Xi’an, have historically had tough restrictions on granting new hukou permits given the already high populations and overburdened infrastructure in these cities. Lower-tier cities (with fewer than 3 million permanent residents in downtown areas) have been generally more willing to issue hukou, in line with government’s aim to drive economic growth in less developed and less populated regions.

    5.36 In April 2019, the National Development and Reform Commission announced the 2019 Urbanisation Plan, which relaxed hukou residency restrictions in small and medium-sized cities. The 2019 Urbanisation plan requires cities with populations between one and three million to end all household registration restrictions under the hukou system. Cities with populations between three and five million will relax restrictions on new migrants and remove limits on key population groups, including graduates of universities and vocational colleges. Small and medium-sized cities and towns of under one million permanent residents have already gradually lifted restrictions on household registration. In addition to loosening hukou restrictions, the plan directs local governments to promote basic public services for permanent residents and further develop urban infrastructure to handle increases in population.

    5.37 According to media reports, it will be easier to apply for hukou in big, medium-sized, and small cities (some second-tier and all third and fourth tier cities). China has 13 cities with a population of more than five million in their urban areas, which will not see a relaxation of hukou restrictions under the new policy: Beijing, Shanghai, Guangzhou, Shenzhen, Tianjin, Chongqing, Wuhan, Chengdu, Nanjing, Zhengzhou, Hangzhou, Shenyang and Changsha. Cities that may be affected by the new plan may include, but are not limited to: Xi’an, Harbin, Changchun, Taiyuan, Nanning, Dongguan, Suzhou, Hefei, Jinan, Qingdao, Dalian, Xiamen, Ningbo, Kunming, Shijiazhuang, Nanchang and Fuzhou.

    Country information - Claims Specific

    RELIGION

    3.28 China 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 of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

    3.29 In 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 over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent 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 (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total 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).

    3.31The CPPPFRB white paper indicates there are also approximately 5,500 religious groups in China, including seven national organisations: the Buddhist Association of China, Chinese Taoist Association, China Islamic Association, Chinese Catholic Patriotic Association, Bishop’s Conference of Catholic Church in China, National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China, and the Christian Council. There are also an estimated 144,000 places of worship in China: 28,000 Han Buddhist temples; 3,800 Tibetan Buddhist lamaseries; 1,700 Theravada Buddhist temples; 9,000 Taoist temples; 35,000 Islamic mosques; 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. China also has 91 religious schools, approved by the State Administration of Religious Affairs (SARA), where more than 10,000 students study, including: 41 Buddhist, 10 Taoist, 10 Islamic, nine Catholic and 21 Protestant schools. It has six national level religious colleges: the Buddhist Academy of China, High-Level Tibetan Buddhism College of China, Chinese Taoism College, China Islamic Institute, National Seminary of the Catholic Church in China, and Nanjing Union Theological Seminary.

    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 18.

    Government framework regarding religion

    3.37Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

    3.38Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

    3.39Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed DFAT Country Information Report People’s Republic of China 25 SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office, and has been elevated to a level of importance not seen since 1949.

    3.40The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.

    3.41The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.

    3.42According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations, or raising funds on their behalf.

    3.43The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).

    3.44Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of nonrecognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

    3.45Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.

    3.46Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord.

    3.47Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’

    3.48DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

    3.49While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

    Christians

    3.76China 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).

    3.77In 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 priests (see Government Framework regarding religion). Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

    3.79Leaders 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 provinces 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 Chinese 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 Guangzhou, 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.

    Other groups, including ‘cults’

    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 ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, 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 God), 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 God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God 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 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.

    The Shouters (Local Church)

    3.105The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.

    3.106The 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, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.

    Eastern Lightning (Church of Almighty God, COAG)

    3.107The 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.

    3.108Zhao 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).

    3.109There 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.

    3.110Although 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.

    3.111COAG 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.

    3.112Academics claim the movement has been severely persecuted in China, and many COAG members, including national leader Ma Suoping (1969-2009), have been arrested or killed. According to statistics claimed by the movement, more than 400,000 members have been arrested in China to date. Security agencies have arrested large groups of sect members in Qinghai, Guizhou, Ningxia, Henan, Hubei, Xinjiang, Anhui and Liaoning provinces in recent years. DFAT is unable to verify these claims; however, academics cite semi-weekly references in Chinese State media reports regarding anti-COAG campaigns and arrests. State media reports detail abductions; extortion; beatings; murder; seduction; and aggressive proselytising as part of the group’s practice of recruiting new members and punishing non-believers, including those seeking to leave the group.

    3.113In May 2014, six people, who the Chinese government claim were COAG members, reportedly beat a woman to death at a McDonald’s restaurant in Zhaoyuan, Shandong. Two of the six alleged perpetrators were executed in 2015. Three others received prison sentences of life, ten and seven years respectively for their roles in the attack. The sixth was a minor aged 12. The McDonald’s case triggered an official crackdown on ‘cult’ organisations. Academics claim the McDonald’s murder was not conducted by COAG, but instead perpetrated by an unrelated, but similar religious movement. Zhang Fan, a leader of the movement linked to the McDonald’s murder, denied she had ever been a member of COAG, but was executed in 2015.

    3.114Sources report the government’s efforts to crackdown on Christian ‘cult’ organisations aim to identify and punish the leaders, with disciples viewed as victims. COAG in Australia (which denies connection to the McDonald’s attack) claims Chinese security agencies have monitored, intimidated, detained and mistreated its members in China since 2011, and its Annual Reports detail several such instances. Such treatment would be consistent with government treatment of members of other banned organisations. Stigma associated with cults may make it difficult for members to find defence lawyers, and lawyers taking on their cases are often themselves targets of adverse attention by authorities (see Human Rights Defenders (including Lawyers)). DFAT is unable to verify the extent to which COAG is active in China.

    CONCLUSIONS

1. The Tribunal is informed by the country information, in summary, as follows. As to security generally: gaining support for Chinese Communist Party (CCP) policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. As to the police: citizens can be arrested prior to being charged. Police and other security agencies have broad administrative detention powers and the ability to detain individuals for extended periods without formal arrest or criminal charge. The arrest procedures are not subject to judicial oversight. As to State protection: Article 5 of the Constitution states that “no laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organisations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated. No organisation or individual is privileged to be beyond the Constitution or other laws”. As to the judiciary: China has explicitly rejected “Western notions” of separation of powers and judicial independence. While China has undertaken significant reform to minimise officials’ interference in lower-level court cases and professionalise China’s judiciary, courts remain subject to a variety of internal and external controls that limit their engagement in independent decision-making. DFAT assesses that a lack of separation of powers creates structural vulnerabilities within the judicial system. Judicial autonomy is limited in cases that authorities consider politically sensitive or that involve vested economic or political interests. Public confidence in the ability of courts to enforce judgements, particularly in rural areas, remains low. As to internal relocation: DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese State’s significant surveillance capability and ability to restrict finances and travel. As to corruption: China ranked 87 out of 180 countries and territories measured on Transparency International’s 2018 Corruption Perceptions Index. The most prevalent forms of corruption in China are bribery, diversion of public funds, and favouritism by government officials. Bribery, political interference and facilitation payments are common when acquiring public services and dealing with the judicial system. As to religion: China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. The major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million. Six million people follow Catholicism and 38 million follow Protestantism. There are 6,000 Catholic churches and places of assembly spread across 98 dioceses, and 60,000 Protestant churches and places of assembly. Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues. While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups – faced intensifying official persecution and repression in 2018, which continued in 2019. As to the Shouters church: 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, see Eastern Lightning). DFAT is unable to verify the extent to which Shouters remain active in China.

2. The evidence of the applicant was often unresponsive to the question, vague, imprecise or discursive. Often the evidence of the applicant contained elements of all these issues. The Tribunal has rehearsed the evidence as a representative narrative, given in real time, which was often quite disjointed. The Tribunal’s rehearsal of the evidence is not intended to be a transcript of the evidence, rather the best recording as it transpired. It does give and is intended to give an appreciation of the nature and quality of the applicant’s evidence. The Tribunal notes that it is a requirement of the Act that the applicant provide details of the applicant’s claim and that it is not incumbent upon the Tribunal to prove the applicant’s case. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. The applicant did not produce any documents to corroborate his claims for protection. This is most surprising having regard to the importance of this matter, apparently, to the applicant and the time which the applicant has had to consider and prepare for this application.

3. The applicant’s claims for protection are contained in his application for a protection visa and in the associated narrative document which he provided to the Department at the same time. The applicant has asserted generally that he was persecuted in China because of his involvement in the Shouters church. He provided a narrative statement in support of his application for review. In that statement he provided no details of when he became a member of the Shouters church, the activities in which he was involved, or of any persecution, notably there is no mention of being detained and incarcerated as a result of his religious beliefs. In his oral evidence he provided no details of when he became involved in the Shouters church or of any activities in which he was involved, the names of persons who attended the Shouters church with him, the location of the Shouters church or indeed as to the Shouters church generally. However, he stated that he was detained and incarcerated as a result of his religious beliefs for a period of several years. This was not mentioned in his written application for protection. His reasons for not mentioning it in his written application were most unconvincing. He said that he would provide evidence of his incarceration and the judgement of the court. He has not done so. He has provided no documentary evidence or corroboration of his involvement in the Shouters church in China or indeed of his involvement in the Shouters church in Australia. He said that he did not become involved in the Shouters church in Australia until 2017. His reasons for only becoming involved in the Shouters church in 2017, having arrived in Australia in 2013, were most unconvincing. When asked as to the location of a Shouters church in Australia at which he attended, he could not provide such a location or indeed the name of the church. The vague nature of the assertions, the failure to provide relevant details and documents and the failure to provide corroborative testimony compel the conclusion that the applicant’s assertions cannot be accepted. The Tribunal does not accept the matters asserted by the applicant are the basis for his claim for protection in Australia.

4. It is also relevant that the applicant travelled to Australia as a student [in] July 2013 but did not claim protection until 3 July 2017 having been an unlawful non-citizen since [date] April 2016 when his student visa was cancelled. His reasons for the delay in applying for a protection visa were unconvincing. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[2] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[3] In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgement of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant’s alleged fear of persecution. It is a rational consideration open on the material”. In the Tribunal’s view the applicant’s delay in lodging a protection visa application further suggests that the basis of the claim for protection should not be accepted.

   [2] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [3] Subramanium v MIMA (1998) VG310 of 1997.

5. In determining whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Tribunal they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.[4] The applicant also gave very vague assertions about being involved in the Shouters church in Australia. However, he provided no corroborative document or testimony to support the assertion. He admitted that he did not become involved in the Shouters church until 2017, notwithstanding that he arrived in Australia in 2013. The Tribunal was not convinced that his assertion of involvement in the Shouters church in Australia was for any purpose other than strengthening his claim to be a refugee.

   [4] Migration Act 1958 (Cth), s.5J(6).

6. The Tribunal has considered whether the applicant feared persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in accordance with s.5J(1)(a) of the Act.

7. Having regard to the evidence the Tribunal makes the following findings:

   a)the Tribunal is not satisfied that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   b)the Tribunal is not satisfied that there is a real chance that, if the applicant is returned to China, the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   c)the Tribunal is not satisfied that there is a real chance of persecution that relates to all areas of China;

   d)the Tribunal is not satisfied that the applicant has a well-founded fear of persecution;

   e)the Tribunal is not satisfied that the applicant is a refugee in accordance with s.5H(1) of the Act; and

   f)the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Act.

   Complementary protection criteria assessment – s.36(2)(aa)

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that the applicant will suffer significant harm.

9. The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or if that harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative enquiries and decision-making, the relevant facts of the individual case must be provided by the applicant.

10. While the Tribunal is required to adopt a reasonable approach to such matters, the Tribunal is not required to make the applicant’s case out for the applicant. Neither is the Tribunal required to accept uncritically any and all of the allegations made by the applicant. In respect of the Tribunal’s assessment in regard to complementary protection, the Tribunal adopts the findings stated above in relation to the refugee criterion assessment.

11. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. There is no suggestion that the applicant satisfies s.36(2)(b) or (c) 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).

13. The application having been unsuccessful it follows that the secondary applicants claim also fails.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants protection visas.

Peter Booth
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.

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36     Protection visas – criteria provided for by this Act

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(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.

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