1805665 (Refugee)

1805665 (Refugee) [2021] AATA 5163 (25 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1805665
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Booth
DATE:25 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 November 2021 at 8:00am
CATCHWORDS
REFUGEE – protection visa – China – religion – membership and activity in Local Church – no harm to applicant but father detained and assaulted while applicant in Australia – credibility – vague and unconvincing claims and evidence – voluntary return to home country – delay in applying for protection – applied after long period as unlawful non-citizen – church membership and activity in Australia for purpose of strengthening claim – late, unsupported claim that brother also arrested – members of family unit – partner and Australian-born Chinese citizen child – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1)(a), (2), (6), 5LA(1), 36(2)(a), (aa), (b)(i), (c)(i), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v MZYYL [2012] FCAFC 147
Selvadurai v MIEA (1994) 34 ALD 347
Subramaniam v MIMA (1998) VG310 of 1997
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
Zhang v RRT [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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 15 November 2016. The delegate refused to grant the visas on the basis that the first named applicant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act and the other applicants did not meet the criteria in s 36(2)(b)(i) or s 36(2)(c)(i).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
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.
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.
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.
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).
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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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 judgments 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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the first named applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa) and whether the other applicants meet the criteria in s 36(2)(b)(i) or s 36(2)(c)(i). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The facts are taken from the applicants’ protection visa applications as follows.
BACKGROUND
The visa applicants applied for the protection visas on 15 November 2016.
Identity, country of reference and migration history
[First named applicant (‘the applicant’)]
The facts are taken from the applicant’s protection visa application as follows. The applicant:
·is a [age]-year-old female, born on [date] in Fuqing City, Fujian Province, People’s Republic of China.
·can speak, read and write Mandarin.
·is of Han ethnicity and Christian faith.
·is a Chinese citizen.
·is in a de facto relationship with the second applicant since August 2008.
In summary, the applicant claims that she came to Australia to study but fears persecution on return due to her faith.
The applicant:
·was granted a TU-571 schools sector visa on 6 February 2008 which ceased on 15 March 2010.
·arrived in Australia [in] March 2008 and departed [in] April 2009.
·arrived in Australia [in] April 2009.
·remained in Australia unlawfully from 15 March 2010 until 6 December 2016.
·applied for a XA-866 protection visa on 15 November 2016.
·was granted a bridging C visa on 6 December 2016 which ceased on 17 May 2017.
·is currently on a bridging C visa granted on 17 May 2017.
[Second named applicant (‘second applicant’)]
The facts are taken from the applicant’s protection visa application as follows. The second applicant:
·is a [age]-year-old male, born on [date] in Fuqing City, Fujian Province, People’s Republic of China.
·can speak, read and write Mandarin.
·is of Han ethnicity and Christian faith.
·is a Chinese citizen.
·is in a de facto relationship with the applicant since August 2008.
The second applicant did not make additional claims separate from the first applicant.
The second applicant:
·was granted a TU-571 schools sector visa on 4 April 2008 which ceased on 15 March 2010.
·arrived in Australia [in] April 2008 and departed [in] April 2009.
·arrived in Australia [in] April 2009.
·remained in Australia unlawfully from 15 March 2010 until 6 December 2016.
·applied for a XA-866 protection visa on 15 November 2016.
·was granted a bridging C visa on 6 December 2016 which ceased on 17 May 2017.
·is currently on a bridging C visa granted on 17 May 2017.
[Third named applicant (‘third applicant’)]
The facts are taken from the applicant’s protection visa application as follows. The third applicant:
·is a [age]-year-old female, born on [date] in [Hospital], Victoria, Australia.
·can speak Mandarin.
·is of Han ethnicity and Christian faith.
·is a Chinese citizen.
·is the child of the applicant and second applicant.
The third applicant did not make additional claims separate from the first applicant.
The third applicant:
·applied for a XA-866 protection visa on 15 November 2016.
·is currently on a bridging C visa granted on 17 May 2017.
CLAIMS
866 visa application
The applicants’ claims for protection are contained in the applicant’s protection visa application, attached statement and the Department interview. The second and third applicant did not make additional claims separate from the first applicant. The claims submitted were as follows:
I am seeking protection in Australia so that I do not have to return to:
People’s Republic of China.
Why did you leave that country(s)?
I came to Australia as an international student to pursue my studies at an Australian high school.
What do you think will happen to you if you return to that country(s)?
Please refer to my statement attached.
Did you experience harm in that country(s)?
Applicant selected ‘no’.
Give details:
Did you seek help within the country(s) after the harm?
Not applicable to applicant
Give reasons for why you did not try to seek help:
Not applicable to applicant
Did you move, or try to move, to another part of that country(s) to seek safety?
Applicant selected ‘no’.
Give reasons for why you did not try to move to another part of the country(s):
I did not move to another part of China as I did not suffer persecution when I was in China.
Do you think you will be harmed or mistreated if you return to that country(s)?
Applicant selected ‘yes’’
Give Details:
Please refer to my statement attached.
Do you think the authorities of that country(s) can and will protect you if you go back?
Applicant selected ‘no’
Give details about why you think the authorities could not, or would not, protect you:
Please refer to my statement attached.
Do you think you would be able to relocate within that country(s)?
Applicant selected ‘no’.
Give details about why you are unable to relocate/give details as to where you could relocate:
Please refer to my statement attached.
EVIDENCE AND SUBMISSIONS
The applicant has provided the following submissions to the Tribunal:
a)Media articles regarding Chinese authorities cracking down on Christianity as follows:
i. ‘China's war on religion, academia: President Xi Jinping moves to reassert Communist Party dominance’, News Corp Australia Network, 14 August 2018, < Communist Party doesn't like difference. So it has set about eradicating any trace of it among its 1.38 billion population.
First they moved on Tibet. Its ancient spirituality and unique identity has been suppressed for decades. Its remaining leadership has long since been co-opted by the Party.
China's Christian community has also long been a source of embarrassment. The Bible has been banned. Crosses must not be displayed in public. Its leadership must be approved by the Communist Party. Its teachings must now conform to Party ideals.
But, for the moment, Beijing has another ancient community in its sights: the Uighurs. China invaded the East Turkestan Republic in 1949. It’s now named Xinjiang province, bordering Pakistan and Afghanistan.
To Beijing, it represents the nation’s largest reserve of coal and natural gas.
Now it’s not Chinese enough for the Communist Party.
It’s the primary focus of President Xi Jinping’s determination to “Sinicize” the entirety of China’s domain. “Chinese characteristics” must be incorporated into all
CHRISTIANITY ‘WITH CHINESE CHARACTERISTICS’
In April, China’s religious affairs department published an article saying that churches must endorse the party’s leadership as part of “Sinicization.”
“Only Sinicized churches can obtain God’s love,” the article stated.
It’s part of Beijing’s “Principle for Promoting Chinese Christianity in China for the Next Five Years (2018-2022)” plan, which details how it will “Sinicize” Christianity within its borders.
Its censors immediately moved in.
Bibles have been seized and banned. Digital versions can no longer be found online. Only an officially approved version from the government-sanctioned open church is available.
But Beijing’s crackdown goes far beyond that.
Images of Christ are being replaced with posters of President Xi. As with the Tibetans and Uighur’s before them, Christian children are no longer allowed to attend church.
“Through our thought reform, they’ve voluntarily done it,” Qi Yan, a member of the township party committee, told the AP by phone.
“The move is aimed at Christian families in poverty, and we educated them to believe in science and not in superstition, making them believe in the party.”
One Beijing pastor told AP otherwise: “A lot of our flock are terrified by the pressure that the government is putting on them,” he said. “It’s painful to think that in our own country’s capital, we must pay so dearly just to practice our faith.”
“Under Xi, this fear of Western infiltration has intensified and gained a prominence that we haven’t seen for a long time.”
RE-EDUCATING UIGHERS
There are 11 million Uighurs in Xinjiang. With one million in detention, and two million forced into re-education camps, Beijing’s crackdown would be something felt by every family.
They are not ethnic Chinese. They speak Turkic. Their culture was heavily influenced by the Mongols and Islamic caliphates.
They are an ethnic minority in China.
Islamic crescents and minarets have been torn down from mosques. They’ve been banned from naming their children “Muhammad”. Children are not allowed to enter mosques. They’re not allowed to fast during Ramadan. Men cannot wear long beards. Veils are banned in public.
The Uighur detainees are being re-educated. They are being forced to sing Communist Party songs, and recite its slogans. They must vow personal loyalty to President-for-life Xi Jinping.
They must attend lectures about the anti-social nature of Islam.
It wasn’t always so.
One of China’s most revered historical figures — explorer Admiral Zheng He — was Muslim. Though you wouldn’t know that from modern interpretations of his story. However, he is now being used to help justify Beijing’s claims to the South China Sea, and beyond.
Since September 11, 2001, when terrorists claiming to represent Muslim beliefs hijacked aircraft and crashed them into buildings in the United States, Beijing declared the existence of the East Turkestan Islamic Movement (ETIM) — “a major component of the terrorist network headed by Osama bin Laden”.
Its crackdown on the ethnic minority has been extreme.
“There is no doubt that the current peace and stability in Xinjiang is partly due to the high intensity of regulations,” it reads. “Police and security posts can be seen everywhere in Xinjiang.
[words obscured by advertisement] Libya,” it stated.
The Global Times was reinforcing its previous harsh stance on Uighur issues, where it endorsed the extensive use of surveillance technology in the region as well as the enforced relocation of hundreds of thousands of its population.
‘ENHANCED’ PATRIOTISM
Religious belief is not President Xi’s only concern. Critical-thought among China’s academics has also been deemed a problem.
Now, they’ve been told to “learn the proper kind of patriotism”.
The Communist Party’s propaganda arm recently announced a new effort to infuse a “patriotic striving spirit” among its universities and research institutes.
It’s all about “political guidance” and “ideological and political identification”.
The Communist Party’s People’s Daily news service declared it wanted to “make the vast numbers of intellectuals … more determinedly follow the party.”
President Xi must walk a tenuous tightrope.
He’s urgently pushed the need for greater creativity and faster research output in his bid to outstrip the rest of the world economically and technologically.
But educated minds do not always conform with Party lines.
A law professor in Beijing, Xu Zhangrun, is one such example. He recently dared to post to social media: “People throughout China — including the entire bureaucratic class — are feeling a sense of uncertainty, a mounting anxiety in relation both to the direction the country is taking as well as in regard to their personal security. These anxieties have generated something of a nationwide panic.”
He said China’s sudden return to strict ideological control, an international ‘closed-door policy’ the return to totalitarianism and President Xi’s unrestricted term in office had become a source of much anxiety.
“The amendments earlier this year shocked the world and caused a lot of concern among Chinese,” he wrote. “This amounts to a negation of the last 30 years of the reform and opening-up policy. It is feared that in one fell swoop, China will be cast back to the terrifying days of Mao.”
there are no such things as re-education centres.”
It said authorities in Xinjiang have cracked down on “violent terrorist activities,” while convicted criminals are provided with skills to [words obscured by advertisement] counter-terrorism.” But he also said “those who are deceived by religious extremism … shall be assisted through resettlement and education.”
Xinjiang has been enveloped in a suffocating blanket of security for years, especially since a deadly anti-government riot broke out in the regional capital of Urumqi in 2009. ‘
Gay McDougall, the committee vice-chairwoman who raised the issue of detentions last week, said she wasn’t convinced by China’s “flat denial”. She said China “didn’t quite deny” that re-education programs are taking place.
“You said that was false, the 1 million. Well, how many were there? Please tell me,” she said. “And what were the laws on which they were detained, the specific provisions?” There was no direct response to that, which addressed a broad range of issues that went well beyond the Uighurs.
But delegation leader Yu Jianhua said some panel members had treated “some of the unsubstantiated materials as credible information.” He contended that some of that information came from groups which “seek to split China” and have links to terrorist organisations.
ii. ‘Shouters: Crackdown Continues, Devotee Sentenced in Beijing’, Bitter Winter, 29 May 2021, < Beijing, Jiangsu, and Guangxi local communities were forced to close. Several members remain in jail.
This month (May 2021) the Beijing Municipal Court sentenced a man called Lin Xianzan to a jail term of three years under Article 300 of the Chinese Criminal Code for having “used a xie jiao,” i.e., having been active in a banned religious group. The court sentenced Lin as a [words obscured by pop up]
“Shouters,” they were banned as xie jiao banned in 1983, well before an official list of the xie jiao was compiled in 1995.
In fact, “Shouters” is a generic and somewhat misleading label for a constellation of different groups. Some of these groups accept the teaching of Nee but not those of Lee. The name “Local Church,” used in the West to designate Lee’s group (but dating back to Nee’s days), is also ambiguous in China. Some distinguish between the “old Local Church” (Laodifangjiaohui, 老地方教会), who accepted Nee but rejected Lee, and the “new Local Church” (Difangjiaohui, 地方教会), i.e., Lee’s own organization.
According to American scholar J. Gordon Melton, “Interestingly, the Shouters remain banned as a xie jiao but not the Local Church. This means that the Nee groups that do not recognize Lee are not considered xie jiao, but as part of the unregistered Christian congregations that constitute the unofficial Christianity about which the government is so concerned. But the situation of the Lee groups is in turn unclear. Since we are dealing with a network of independent congregations very much different from one another, perhaps the listing as a xie jiao should be, or will one day be, interpreted as referring only to certain Lee groups and not to all of them.”
Recently, however, the CCP seems to be cracking down on all groups in the Nee-Lee tradition. Bitter Winter has learned that in Beijing, Wuxi, in Jiangsu Province, and Nanning, in the Guangxi region, members of congregations they refer to as “Local Churches” have been arrested and sentenced again. Their churches have been forced to close.
This is not the first time these communities are attacked. In Nanning, three men called Lin Zhe, Chen Xianyang, and Chen Weiyi are in jail from two years, although no trial date has been set for them. A man who goes under the name John Yang is also in jail in Wuxi.
b)Statement in both English and Mandarin from [Mr A] dated 31 Jul 2021 as follows:
My name is [Mr A], born on [date], I am a Chinese national and I am living at [Village] [Township] Fuqing City Fujian Province China. My telephone number is: [Number].
I wish to confirm that [the applicant] is my daughter and is currently living in Australia.
I wish to confirm that everyone in our family are devoted Christians and the denomination of the church we attend in China is the Church in Fuqing. We followed the teaching of Watchman Nee and Witness Lee at our local church. Before [the applicant] went to Australia in March 2008
On October [date] 2016, I attended a local church gathering in the City of Fuqing with other church friends from the same church and I was arrested and detained by Public Security Bureau officers. While I was detained at Fuqing Detention Center, I was verbally abused, I was lapped in the face and was beaten by Public Security Bureau officers. I had sustained both physical and emotional abuse and attack by the police force in China.
Until now, local church in China is still strictly banned across the country of China and is still listed on the top of the "14 government banned evil cults". In China, when we attend local church gatherings, we have to do it secretly and fear of being intercepted by Public Security Bureau officers.
I sincerely hope that [the applicant], her husband and their daughter's protection visa application can be accepted by Australian government so that they can practice their religious belief in Australia.
c)Statement from [Mr B] dated 24 June 2021 as follows:
As a leading brother at the Church in Melbourne, I wish to confirm that [the second applicant] (Born on [date]) and [the applicant] ([date]) are both members of our church in Melbourne.
From my memories, both of them started to join our church group in the beginning of 2016, and I can see they are both very devoted Christians from my personal observation.
[The second applicant] and [the applicant] regularly attending our Chinese group gatherings on a weekly basis at [a suburb] on Sundays. Gatherings they had also participated in include our prayer gatherings on Tuesday and small group blending gatherings on Saturday nights.
It is my strong belief that they are both very devoted Christians and I wish them well for their visa application to remain in Australia.
d)Picture of a man and child at a gathering.
e)Pictures of indoor and outdoor gatherings.
f)Custody Release Certificate provided in Chinese with a NAATI-certified English translation. The English translation is in the following terms:
Fuqing Public Security Detention Centre
CERTIFICATE OF RELEASE FROM DETENTION
Certificate Number: (2016) [Number]
This is to certify that Detainee [Mr A], male, born on [date], has been released from detention as a result of the expiration of the detention period.
The Detainee was subjected to administrative judicial) detention (investigation) by Fuqing Public Security Bureau on [date] October 2016. The detention period commenced from [date] October 2016 to [date] October 2016.
FUQING PUBLIC SECURITY DETENTION CENTRE [Round Seal]
[Date] October 2016

The applicant provided the following to the Department:
a)A document in Mandarin the applicant described as the ‘Dad’s release certificate’ provided without an English translation.
b)Statement from the applicant for a protection visa application dated 12 November 2016 in the following terms:
I, [the applicant] of [address], currently a full-time mother make the following statement in preparation for a Subclass 866 Protection visa application which I intend to lodge with the Department of Immigration & Border Protection.
This protection visa application includes myself, my de facto partner [the second applicant], born on [date] and our daughter [the third applicant] who was born in Australia on [date]. All the family members included in this application are Chinese citizen by birth.
Both my partner and I arrived in Australia on a student visa to pursue our overseas studies in Australia. We both came to Australia in Year 2008. It was our plan to come to study at an Australian school and return to China at the end my studies to find a good employment in China.
I belive it was Lord Jesus's arrangement that my partner and I both attended the same high school in Melbourne namely [School name] and it was there that we met each other and fell in love. We started to live on a De Facto relationship in August [2008].
My partner and I returned to China to visit our family members between April [date] 2009 and April [date] 2009. At the time, neither side of our family members had suffered direct harm and persecution by Chinese government.
Our daughter [the third applicant] was born into our relationship on [date] and the arrival of our baby brought a lot of joy and happiness to our family.
We are applying for this protection visa as we did not wish to return to People's Republic of China on religious grounds. As a result of practising our religious practice at our family church in China, my father [Mr A] was detained on October [date] 2016 by Fuqing Public Security Bureau officers and was released one week later. Dad suffered serious harm and was interrogated, intimidated and threatened by Public Security Bureau officers. He was also assaulted by the custody officer and was physically and psychologically abused.
Both my partner and I came from the same Christian family background before coming to Australia.
Starting from when I was young, I had been following my parents to attend our church gathering and participated in different activities when I was in China. I can remember that our family church gatherings were conducted very secretly in China and I had some understanding that our local family church was not allowed by Chinese government. Since l 980's local family church had been banned in China and many church friends had suffered government crackdown and persecution in the course of practising their religious belief
Since coming to Australia, I have been able to attend our local family church gathering in Melbourne and I can enjoy the freedom of our religious practice in Australia where we don't have to fear for being discovered and arrested by Chinese authority. In China, our local family church is strictly banned and our family church was proclaimed as "evil cult" "shouters" by Chinese communist party.
I have previous sought for legal advice on the possibilities of lodging a protection visa application in Australia and the advice I had received was that unless there is evidence to prove that members of my family had come to the direct harm and persecution by the authority in China, otherwise, I am not entitled to be granted a protection visa in Australia.
When I discovered the recent incident, my father had come across while attending a family church gathering and was arrested and detain by the authority, I spoke to my church friends and my church friend encouraged me to lodge this protection visa application.
Until now, our local family church is still strictly banned in China and still remained on the top list of 14 Illegal religious sects in China. In China, once a religious organize is proclaimed as an evil cult, it become absolutely impossible for such status to be changed.
As my whole family are devoted local family church members, I am concerned that if I have to return to China in the future, I can come across the same dilemma as my father and can be arrested and placed in custody Centre for breaching the religious policy in China and suffer serious harm and persecution by Chinese government in the course of pursuing my religious goal.
I am also unable to be relocated to other part of China as the whole country of China is under the ruling of the same Communist Party. Laws and policies are formulated and implemented on a unified basis in China all over the country.
I sincerely hope that my protection visa application can be accepted by the Department of Immigration & Border Protection so that I don't have to return to China.
c)Media articles regarding Chinese authorities cracking down on Christianity as follows:
i. ‘China has clearly identified the call group and other 14 cult organizations (list)’, Comprehensive Study: Youth Times, 3 June 2014, < the reform and opening up, China's cult organizations gradually developed, In the 1980s, most of the cults were active in remote areas. In the 1990s, the new cults were expanded to the center cities. In the 21st century, the trend of contemporary cult began to be internationalized. In our country, there are 14 cults that are clearly identified.
Document clear seven cults
Shouting factions
Organization: Li Chang was founded in 1962 in the United States, in 1979 to penetrate into China. 1983 activities have been involved in 20 provinces, autonomous regions, 360 countries and cities, to deceive the masses of more than 20 million people.
Social harm: Li often referred to as “Christ is me, I am also Christ”. Resulting in the Zhaoyuan murder of the “Almighty God” leader Zhao Weishan was the backbone of the group in Heilongjiang. In recent years, the organization gradually evolved “often taught” “mainland China administrative decon station” “was king” “Lord God” “Oriental Lightning” and other factions.
Discipleship
Organization: …
ii. ‘Cults "cries" harm’, Summer, 2 September 2016:
Some people ask: cult "cry faction" harm?
Q: "Calls" also known as "the church of God", claiming to be "local church", also known as "restoration sect", by the American Chinese Li often in 1962 established in the United States. Because his members in the party shouting and named. The cult organization was seized in China in 1979 and spread rapidly, is to enter the territory of China's earliest cult organization, is also the most closely linked inside and outside the cult one of the cult. The United States, "the flow of traffic station" as the center, to Taiwan "Gospel study", Hong Kong "Bible Learning Center" as the base, to Thailand, Malaysia, the Philippines and other Southeast Asian countries as the base of the church, focusing on the Chinese mainland to infiltrate the cult The
Cult "cries" false sense of evil
Li often denies the basic belief in Christian "Trinity", propaganda "a tri-shaped", that "Christ is human, in the body of Christ there Satan's temperament", "I am God, God is me" and so on Heresy, incitement to the believers "eat the Lord", "cry", so that believers in the party shouting "often by the Lord", in view of this, my department will be its default as "cry".
Cult cult "evil cult" and social harm
1. Publicly promote the "doomsday", wantonly create social panic .
2. Most of the content of the cry of believers is in conflict with the normal society, making it easy for believers to go to extremes.
3. Openly attack the party and the government, secretly planning to incite trouble, disturb the social order, shouting "to organize the church, and the Chinese Communist Party and the government confrontation in the end."
4. Associated with foreign organizations, attacking the country's religious policy, claiming to "pound the whole of Christian chaos."
5. To organize various youth training courses to poison young people thinking.
6. Intervene in grassroots village elections, plot to control the leadership of grassroots organizations.
Identify the elements of the cult "shouting faction" are:
Known as their own Christian is what school, the teachings of the "often subject" like the title; before the party loudly shouting, and now convergence; use of promotional materials are "New Testament", "Morningside" "Life Reading" and other books; online information provided by the "water service station" and "Taiwan Gospel study."
d)Copy of [the applicant]’s passport.
e)Copy of [the second applicant]’s passport.
f)[The third applicant]’s Victorian Birth Certificate.
g)Photos of a gathering.
h)Screenshot of a group call.
i)Documents in Mandarin that are not translated.
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 her claim for protection in Australia was that she cannot return to China because she fears persecution on the basis of her religious beliefs. She also confirmed that she did not make any claim for protection in Australia on any other basis.
The Tribunal asked the applicant why she left China and now claimed protection in Australia. The applicant responded as follows:
because of religious belief because of that my father was arrested in the past, I fear if I go back to China same thing will happen to me because of religious beliefs, the incident that happened father in 2016, in 2017 my brother was also arrested because of meeting, therefore I fear that if I go back to China I will be arrested because of meeting, I father knows in Australia there is freedom of religion so I can enjoy my Lord in Australia, therefore I hope I can get Australian protection I can freely worship the Lord here in Australia, also I came over here when I was [age] years old, been here 10 years while I am enjoying the Lord freely here in Australia, my parents will also feel relieved for me, they don’t wish me to return to China and subject to same treatment as my father and my brother, I am very lucky to be able to come to free country, therefore he also hope my application will be approved this time, my parents hope I can be here safely and happily I also hope my children can be here safely and happily, my parents don’t want things happen such as three family return home and they will be prosecuted, I also don’t wish that I bring my children back home that they will be harmed because of meeting, I think all parents will hope that their children will be safe, because religious belief is very important for us, belief return back home we can’t worship our Lord freely, every time we gather we will be concerned.
The Tribunal informed the applicant that it was asking why she was seeking protection not as to other people’s concerns. She replied, “my parents concern is same as my concern”. She was again asked to confine her answer to her concerns and fears. She said “my concern is same as parents both my father and brother were persecuted if I go back same thing will happen to me”.
The Tribunal proceeded to ask the applicant some questions, the substance of which and her responses were as follows.
She was asked whether she practised her religious belief at the family church in China. She said “yes”. When asked when she commenced practising her religious beliefs she said “since primary school”. When asked with whom she practised her religious beliefs she said “my parents”. She was asked how often she practised her religious beliefs in China and she said “we would have gathering two or three times each week”. When asked whether this frequency of religious attendances continued until she left China she said “yes”. She was asked where she practised her religious beliefs whilst she was in China. She said “at other brother and sister house”. When asked whether she carried out these religious beliefs openly or secretly she said “secretly”. The applicant was asked why she practised her religion in secret. She said “because religion is deemed as a cult so cannot have public gathering”.
The Tribunal asked the applicant whether she was afraid of persecution on the basis of her religious beliefs while she was in China. She said “yes”. She was asked whether she identified as a Christian. She said “yes”. When asked whether she attended authorised Christian churches in China she said “no”. When asked to explain this she said “because they go against the theory of Bible”. When invited to expand upon her answer she said “those registered churches violated the truth of Bible because the leader is not Christ”. She was asked whether she had any proof of this assertion. She said “they listen to government head”. When the question was repeated she said “the registered churches follow government, our local church we don’t have hierarchy system everyone is equal”.
She was asked why she had no corroborative evidence of her involvement in the local church in China except for the statement of [Mr A]. She said “I am here in Australia I cannot get”.
The Tribunal asked the applicant whether she had been harmed or threatened with harm because of her religious beliefs while she had been living in China. She said “yes”. When invited to expand she said “my father and my brother are best example”. The Tribunal asked again whether the applicant had been harmed or threatened with harm because of her religious beliefs while she had been living in China. She said “will be arrested, will be detained probably be beaten up”. She was asked whether it was true these things had not happened to her. She said “yes thankful of mercy, but something didn’t happen in past doesn’t mean it won’t happen in future”.
The applicant confirmed that she arrived in Australia [in] March 2008. When asked what visa she held at that time she said “student visa”. She was asked what she studied when she arrived in Australia. She said “attended language school and high school”. She was asked what year of high school she commenced. She said “[Number] year”.
The applicant confirmed that she returned to China [in] April 2009. When asked why she returned on that occasion she said “international student returned to see their parent once a year that is pretty common”. She was asked whether that was why she returned to China. She said “yes”. She added “because my parents have health condition so I went back to see them”.
She was asked whether she attended the local church when she had returned to China on that occasion. She said “yes”. She was asked how often she attended the church. She said “twice each week”. When asked whether she carried out her religious beliefs openly or secretly she said “secretly”. The Tribunal asked whether she was afraid of being harmed or threatened with harm because of her religious beliefs when she was in China on this occasion. She said “I was scared I was concerned but there because of Lord mercy I didn’t encounter same treatment as father and brother”.
The applicant confirmed that she returned to Australia [in] April 2009. She also confirmed that she held the same student visa on that occasion. She was asked whether she studied year 12 in high school. She said “no”. She was asked what study she undertook. She said “at the time because family couldn’t support me with tuition fee so I didn’t go to school”. She was asked when her family’s financial support had ceased. She said “roughly after I came back, because family suffer from financial crisis so they stopped”. She was asked whether she attended any school when she returned to Australia. She said “yes I did until tuition fees stopped”. She was asked when the tuition fee or financial support ceased. She said “roughly 2010”. She was asked what happened then and she said “2010 I stopped daily because no tuition fee”. The Tribunal observed that her answers appeared inconsistent and invited her to reconsider her response. She said “because it has been a long while what I said is all true I didn’t go back roughly after I arrived I studied until 2010”. The Tribunal observed that that was approximately one year after she returned. The applicant agreed and added “beginning of 2010”.
She was asked why she did not return to China when her financial support ceased. She said “I spent a lot of parent money to go overseas so if I go back then [I need] money for my parents first, if I go back with empty hand is wasted money”.
The Tribunal observed that her student visa had expired on 15 March 2010. The applicant responded “roughly should be”. The Tribunal put to her that was the exact date of the expiry of her student visa and asked whether she disagreed. She said “I agree I don’t have some of accurate date, I can remember”.
The Tribunal asked the applicant why she did not return to China when her student visa expired. She said “just as I said my parents spend a lot of money to me study overseas, I want to save up money for them”. When asked how much had been committed to her overseas study she said “200,000”. She was asked whether the money had been borrowed by her parents. She replied “half of them borrowed half was there”.
She was asked what she had done to repay the money. She said “when I stop study I went to [work]”. She was again asked what she had done to repay the money. She said “I went to [work], [deleted]”. She was asked how much of the loan she had repaid. She said “I haven’t paid back the full amount because some times I could not get salary”. When invited to respond directly to the question she said “my answer is I did casual job”. The Tribunal again asked her how much she had repaid. She said “I paid back 50,000”. She was asked why she produced no evidence of the loan or of the repayments. She said “I did not know who was needed”.
She was asked whether she attended Christian churches in Australia. She said “the church we went to local church is different from Christian church here”. She was asked to explain when and where she attended Christian churches in Australia. She said “I started roughly in beginning of 2016 I went to [a named] primary school, later on change to [Suburb]”. She was invited to be more precise rather than stating “beginning of 2016”. She said “can’t remember”. She was asked how often she attended church in Australia. She said “we have gathering three times each week”.
The Tribunal asked the applicant why she did not seek protection in Australia prior to 16 November 2016. She said “because of this incident of my father happen in October, I applied after that happened”. The Tribunal observed that the applicant had stated that she was afraid of being harmed because of her religious beliefs and again asked why she did not apply for a protection visa at an earlier time. She said “because at that time the incident hasn’t happened to my family member yet I came here to study I wasn’t aware of persecution of refugee”.
The Tribunal observed that in her statement she had stated she sought legal advice about the possibility of seeking a protection visa in Australia. She was asked when that occurred. She said “I learned about this from brother and sister in church, a lot of them granted protection through this channel”. She was asked whether she had a copy of her statement dated 12 November 2016. She said that she did. The Tribunal read the passage to her about seeking legal advice and again asked when this had occurred. She said “after my father was arrested after [date] October”. She was asked who provided legal advice to her. She said “I consulted from brother and sister”. The Tribunal reminded her that in her statement she said that she had received legal advice and again asked who provided the legal advice. She said “legal advice? I went on Internet to search for myself”. The Tribunal asked her whether her statement to that extent was untrue. She said “why did not true, on Internet to search and consult I also called them but I was told successful rate was low”. The Tribunal observed that the applicant was being evasive and again asked her who provided the legal advice. She said “forum online, I consulted from them”. She was asked whether the online forum was a law firm. She said “no”. The Tribunal informed the applicant that it was having difficulty accepting the reference in the statement that she had sought legal advice. She was invited to comment. She said “legal advice, lots of brother and sister around me who had the experience I also sought information on Internet, why you not accept my claim”.

She was asked when she became aware that her father had been detained. She said “when they were arrested my mother told me”. She was asked when her mother informed her of those events. She said “roughly after he was arrested, the day after”. She was asked to explain why her father was arrested. She said “because of gathering because government don’t recognise us, they think we’re cult, so gathering was illegal”. When asked how many people were arrested she said “over 10”. The Tribunal asked why she had no statement from any of those 10 people or from her mother regarding these events. She said “statement, you need more proof”. When invited to respond to the question she said “no I don’t understand what part of evidence you want or evidence from brother and sister who are arrested”.
She was asked whether her father had been the subject of interest by the police since he had been arrested. She said “yes they come out randomly to see if parents have gathering”. She was asked how often this occurred. She said “sometimes three times each month, some time every week”. She was asked whether these attendances had ceased and how long they have been continuing for. She said “it hasn’t stopped still going on now, crackdown is really severe”. The applicant was asked why she had no statement from her mother regarding ongoing harassment by police. She said “I didn’t know I need to provide this”. She was asked why these matters were discussed in the statement from her father, [Mr A] dated 31 July 2021. She said “that is from father, you know I apply for visa”. When the question was repeated she said “we have mentioned verbal, beat up and harassment, we didn’t know we do need to provide so much detail”. She was asked why she did not provide the statement from [Mr A] prior to 31 July 2021. She said “I didn’t know I need, brother and sister remind me to provide more convincing”.
The Tribunal observed that she had previously made reference to her brother being arrested and asked whether she had more to say on that topic. She said “my brother arrested when he was attending gathering, think about it, my brother and father arrested, what will happen to me”. She was asked when this occurred. She said “2017, roughly half year after father was arrested”. She was asked whether her brother was detained. She said “yes”. When asked how long her brother was detained she said “a week”. She was asked whether any other persons were detained in the same circumstances. She said “yes there were other brother”. When asked how many other persons were detained she said “over 10 people”. She was asked when she became aware of this event. She said “later on because usually some bad thing happen they did not want to tell me”. The Tribunal observed that her response was vague and invited her to respond directly to the question. She said “two or three a day after brother was arrested”. The Tribunal observed that she had said this occurred sometime in 2017. The applicant agreed. When invited to be more precise she said “roughly about 19 or 20 April”. She was asked whether her parents were aware of her brother’s detention at the time. She said “yes”. She was asked why her brother’s arrest and detention were not mentioned in her father’s statement dated 31 July 2021. She said “because it was evidence for me, for my case, also I apply for refugee status so I write my father”. She was asked why she had no statement from her brother or her mother regarding her brother’s arrest and detention. She said “you mean proof was written by my mother for me”. When the question was repeated she said “I didn’t know I need to provide evidence from mother and brother, statement from my father, I didn’t know need to provide evidence from mother and brother”. The Tribunal asked the applicant why she had not mentioned her brother’s arrest until giving evidence at the hearing. She said “because you didn’t ask in part asked me question answer”.
The Tribunal asked the applicant whether she contended that she would be harmed if she returned to China due to her religious beliefs. She said “yes”. She was invited to explain why she held that belief. She said “because lots of brother and sister were encountered same situation as father when harmed father same things will happen to me, we believe in same thing”.
The applicant was asked whether she could relocate within China. She said “no matter where I locate to as long as relocate in religion, government will crack us down”.
When invited to add anything further to her application for review the applicant said “I want to ask something, no one would stay in another country fluent for the other country for over 10 year and not return to home country no mother can bear not to see their own child for more than 10 year, but no other way, my grandparent passed away this year, I could not see them, I feel heartbroken, my Lord grant them not to suffer, also I hope I persevere many years I will have good ending, to ask is a different good thing I mother myself and figure for better for my children praise God, may the love of God surround you”.
The second applicant, the applicant’s partner was invited to give evidence. He said “first of all I would like to thank you to spend time”. When asked whether he had anything relevant to say he said “relevant information no whatever I want to say she has already said”.
In summary, the applicant’s claims are that:
·she is a Christian since she was young and her Christian faith (Local Church) is banned in China.
·she came to Australia with her partner in 2008 to study and has been attending a local family church.
·her father was detained on [date] October 2016 by Fuqing Public Security Bureau officers while he was practising his religion at a family church.
·her father suffered serious harm as he was interrogated, intimidated, assaulted and threatened by the custody officer.
·her father was physically and psychologically abused.
·she fears persecution on her return to China due to her religion.
Based upon 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 female, born on [date] in Fuqing City, Fujian Province, People’s Republic of China.
·can speak, read and write Mandarin.
·is of Han ethnicity.
·is a Chinese citizen.
·is in a de facto relationship with the second applicant since August 2008.
·was granted a TU-571 schools sector visa on 6 February 2008 which ceased on 15 March 2010.
·arrived in Australia [in] March 2008 and departed [in] April 2009.
·arrived in Australia [in] April 2009.
·remained in Australia unlawfully from 15 March 2010 until 6 December 2016.
·applied for a XA-866 protection visa on 15 November 2016.
·was granted a bridging C visa on 6 December 2016 which ceased on 17 May 2017.
·is currently on a bridging C visa granted on 17 May 2017.
The Tribunal finds that the second applicant:
·is a [age]-year-old male, born on [date] in Fuqing City, Fujian Province, People’s Republic of China.
·can speak, read and write Mandarin.
·is of Han ethnicity.
·is a Chinese citizen.
·is in a de facto relationship with the applicant since August 2008.
·was granted a TU-571 schools sector visa on 4 April 2008 which ceased on 15 March 2010.
·arrived in Australia [in] April 2008 and departed [in] April 2009.
·arrived in Australia [in] April 2009.
·remained in Australia unlawfully from 15 March 2010 until 6 December 2016.
·applied for a XA-866 protection visa on 15 November 2016.
·was granted a bridging C visa on 6 December 2016 which ceased on 17 May 2017.
·is currently on a bridging C visa granted on 17 May 2017.
The Tribunal finds that the third applicant:
·is a [age]-year-old female, born on [date] in [Hospital], Victoria, Australia.
·can speak Mandarin.
·is of Han ethnicity.
·is a Chinese citizen.
·is the child of the first and second applicant.
·applied for a XA-866 protection visa on 15 November 2016.
·is currently on a bridging C visa granted on 17 May 2017.
COUNTRY INFORMATION
In accordance with Direction No.84 made pursuant to s 499 of the Act, the Tribunal also had regard to country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The DFAT report titled ‘People’s Republic of China’ dated 3 October 2019 relevantly states as follows (footnotes omitted):
SECURITY SITUATION
2.55Gaining 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.
2.56Security 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).
2.57Some 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.
Detention and Prison
Prison
5.19Prison conditions vary significantly among different parts of the country depending on local economic conditions; however, conditions in prisons are generally better than conditions in detention centres. Chinese law provides for prison accommodation to be ventilated, clean and warm with natural light. Prisons are required to provide adequate medical, living, and sanitary facilities. In practice, there is no independent monitoring of the prison system and the lack of transparency into China’s legal system makes it difficult to make generalised assessments of prison conditions.
5.20In general, prisoners are segregated by gender, and four to eight prisoners are allocated to each cell, although DFAT is aware of reports of up to 20 to 40 people in cells. Conditions can be overcrowded, and detainees can be required to sleep on the floor and denied regular exercise. Nevertheless, prisoners generally have beds, shower facilities, access to telephone calls and family visits. However, conditions vary depending on the location, resources available, training of prison or detention guards, and perceived level of political sensitivity and profile of the individual concerned. Foreign prisoners generally receive better treatment in detention than locals receive.
5.21Meals are served regularly, but nutritional quality is poor (often plain rice and vegetables) and quantities are small. Many detainees rely on supplemental food, medicines and warm clothing provided by relatives. Sanitation facilities are limited to buckets and sanitation troughs and/or open toilets. Prison officials sometimes deny these privileges as a form of punishment, particularly for political dissidents (see Torture). Prisoners do not always receive adequate medical care (see Deaths in Custody).
5.22All prisoners are put in the same cells, irrespective of their crime. There is no solitary confinement. Those sentenced to the death penalty are shackled during the day, and locked to a permanent position in the cell at night in the period before execution. Due to shackling, those sentenced to the death penalty have reported they were required to seek the assistance of other non-shackled prisoners to access basic needs like food, water and toilet facilities. Only family members can visit prisoners in China, and prisons generally allow one family visit per month. Women’s prisons are more likely to have better conditions than men’s, and tend to have more psychosocial support services.
5.23Prisoners are generally required to perform work tasks. Prisons operate a merit points system (similar to The Social Credit System), whereby work (such as factory or circuitry work) can be performed to earn points to reduce sentencing, to pay off fines, or supplement inadequate food supplies. In order to be eligible for prisoner exchange, sentences need to be reduced from ‘life sentences’ to a tangible fixed-term sentence of a number of years. However, DFAT is aware it is difficult for prisoners to use work to successfully achieve sentence reductions, and understands working conditions are generally poor. The government formally abolished its ‘re-education through labour’ policy in December 2013. Media and human rights observers claim, however, that forced labour in prisons continued in 2018, supporting production for overseas markets.
5.24Medical facilities in prisons can be comprehensive. Most prisons have a hospital wing, where medical conditions can be treated and monitored. There is at least one prison hospital in each province, and prisoners suffering serious or long-term medical conditions can be transferred to the prison hospital.
Detention
5.25See Arbitrary Arrest and Detention for distinctions between types of detention. Conditions in administrative and pre-trial detention facilities are typically harsh, and often worse than in prisons. Pre-trial detention is highly controlled, and there are no opportunities to work to reduce sentences or for family visitation. Cells in pre-trial detention are approximately 12 metres long and five metres deep, with up to 24 detainees held in each cell.
5.26Detainees are not permitted to leave cells except to meet with investigating and Procuratorate officials, lawyers and consular officials. There is no opportunity to exercise. Meals are delivered to cells three times a day, and detainees are permitted to purchase a limited range of additional food, clothes and personal hygiene items. In pre-trial detention, bright, fluorescent lights are generally switched on 24 hours a day. DFAT is aware of reports of violence and mistreatment in detention centres, with authorities taking immediate action (including shackling violent detainees) to discourage violence.
5.27Hygiene, medical services and food and water provisions are sub optimal and rudimentary at best. Cellmates generally share one open toilet per cell. While detention centres will generally have on-site doctors, they have limited options for treating medical problems.
5.28As in the prison system, national Detention Centre regulations require detainees sentenced to a non- suspended death penalty to be shackled, to prevent self-harm. Detainees subjected to shackling must wear the restraints, which are fixed to an anchor point in the cell, at all times, and require assistance from other detainees for toileting and washing themselves. According to the mandate of pre-trial detention centres, offenders who are sentenced to death are often kept in detention centres (rather than transferred to prisons), thus detained together with pre-trial detainees.
5.29Family visits are technically possible after all judicial proceedings have been finalised and the defendant is sentenced. However, DFAT is aware of reports that family visits to detainees are generally not permitted and, in most cases, families must wait until the defendant has been transferred to a prison and completed their mandatory one-month induction process before they can visit.
5.30Australia has signed, but has not ratified an extradition treaty with China.
Exit and Entry Procedures
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
Biometrics and fingerprinting is conducted at most airports, and the National Immigration Administration (NIA) has taken over from the bureau of entry and exit and is gradually mainstreaming management of regional airports. This is supported by AI enhanced security and surveillance capabilities (see Security Situation), and a document examination centre at Beijing airport with connectivity to all airports across the country.
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.
Provincial Country Information
Religion in Fujian
3.33While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.
3.34Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.
3.35Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.
3.36DFAT assesses that individuals in Fujian have historically practised religion more freely within state- sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country (See Government Framework regarding religion).
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’
3.20The interpretation of what constitutes a cult can vary throughout China, with some local authorities listing behaviours such as “deifying leaders, deceiving people, and spreading superstitions and heretical beliefs” as grounds for labelling a group a “cult”. Practices deemed superstitious, cult-like, or beyond the vague legal definition of “normal,” can attract harassment, detention and imprisonment by authorities (for example, in December 2012, Chinese media reported more than 1,300 people across 16 provinces had been detained for propagating rumours of an apocalypse). A joint interpretation issued by the Supreme People’s Court and Supreme People’s Procuratorate in 1999 stated that punishments for cult crimes can be applied when one “resists group bans by relevant departments, resumes banned groups, establishes other sects, or continues [illegal] activities”. Individuals who organise or use “superstitious sects, secret societies or evil religious organisations” to undermine the state’s laws or administrative regulations can be sentenced from three to seven years in prison under Article 300 of the Criminal Law. Government crackdowns against cults occur with relative frequency in China.
3.21Groups such as the Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Zhong Gong (a qigong exercise discipline), and Falun Gong (see below) are banned by the Chinese government. The government also considers several Christian groups to be “evil cults,” including the DFAT Thematic Report - China 9 “Shouters,” Eastern Lightning, Society of Disciples (Mentu Hui), Full Scope Church, Spirit Sect, New Testament Church, Three Grades of Servants (or San Ban Pu Ren), Association of Disciples, Lord God Sect, Established King Church, Unification Church, Family of Love, and South China Church.
3.22Both registered and unregistered orthodox Christian Churches tend to deride the doctrines of “cultish” organisations as heresy. However, at the same time, government crackdowns on “cults” often bring attention and scrutiny of Christian house churches by government officials, scholars, and ordinary people who can find it difficult to distinguish between the two
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.
PREVALENCE OF FRAUD
5.61DFAT assesses it would be difficult to depart China on a forged passport. Chinese passports use sophisticated technology and authorities have a high surveillance capability, particularly at train stations, airports and ports. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials. DFAT is aware of cases where genuine documents obtained by fraudulent means (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards) are submitted in support of visa applications. DFAT assesses such documents are relatively easy to obtain and are commonly used.
5.62Organised irregular migration is common, and is backed by a high level of sophistication with respect to counterfeit documentation for visa applications. Fraud has also evolved to take advantage of online visa application systems. The use of manipulated images has increased and is common (largely manipulated ID numbers and place of residence and issuance locations to reflect lower risk source cities). Organised immigration malpractice regularly floods online application systems using documentation with misrepresented residential locations to identify which locations can circumvent risk tools. Sources report that such issues are more prominent in applications from southern and northeastern provinces.
5.63DFAT is aware of sophisticated syndicates that provide packages, with targeted background stories, to support fraudulent documents used in visa applications. The ‘ten-year migration plan,’ another form of organised migration malpractice, is also highly prevalent. The ten-year migration plan involves a couple who wishes to migrate their family overseas. One member of the couple will seek to secure an expat husband or wife, or source another form of temporary visa, then travel overseas. Organised migration malpractice syndicates are known to advertise payment (reportedly ranging between AUD10, 000 to 20,000) in return for marrying a Chinese spouse, or to facilitate jobs overseas in support of the ten-year plan. Once in country, the individual will seek citizenship, and once granted they will divorce the expat husband or wife and apply for visas for their entire family. Sources report a spike in ten-year plan cases originating from Fujian.

5.64Borders are not very permeable and fraudulent entry and exit would require high-level facilitation.. DFAT assesses it would be difficult to manage illegal entry or exit through most airports without major corrupt government facilitation. However, following the government’s crackdown on corruption, DFAT assesses official corruption facilitating documentation fraud has reduced, which has forced an increased trend towards electronic manipulation of documents.
5.65Sources report that the government is in the process of centralising identification documentation in an online portal, which when completed, may simplify documentation checks online.
Fraud in Fujian
5.66There is a well-established history of individuals from Fujian using fraudulent documents to obtain visas to Australia and other western countries. Fraudulent activity is supported by highly organised and well-resourced networks of agents and counterfeiters. High-risk documents include financial and employment records, which can be either fraudulent or altered. Organised immigration malpractice and syndicates selling immigration packages for visa applicants are active in Fujian. Syndicates have been known to alter identity documents such as passports or national identification cards to misrepresent the applicant’s place of birth (to avoid greater scrutiny of their applications). Sources report that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance.
COUNTRY INFORMATION – SUMMARY
The Tribunal is informed by the country information, in summary, as follows.
a)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.
b)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.
c)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’.
d)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.
e)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.
f)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.
g)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 continues in 2019.
h)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.
i)As to fraudulent documents: DFAT is aware of cases where genuine documents obtained by fraudulent means (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards) are submitted in support of visa applications. DFAT assesses such documents are relatively easy to obtain and are commonly used. There is a well-established history of individuals from Fujian using fraudulent documents to obtain visas to Australia and other western countries. Sources report that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance.
CONCLUSIONS
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 her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant’s claims for protection are contained in her application for a protection visa and in the associated narrative document which she provided to the Department at the same time. The applicant has asserted that she was a practising Christian in China since a young age. She stated that she attended church in China regularly with her parents. She has produced no corroborative evidence from any other person to support this assertion. This is a critical part of the applicant’s case. Notably the statement from [Mr A] does not corroborate her assertions. She said that she was fearful of persecution whilst in China but did not leave China until she arrived in Australia in March 2008 for the purposes of study. This is not the conduct of a person who has a well-founded fear of persecution. Further the applicant was never harmed or threatened with harm whilst in China notwithstanding she carried out her religious beliefs. This is given some weight. She did not attend the authorised churches in China despite informing the Tribunal that she identified as a Christian. The reasons given for not attending the authorised churches were most unconvincing. She did not apply for a protection visa when she arrived in Australia in early 2008. It is reasonable to assume that a person who has a well-founded fear of persecution would seek protection at the earliest possible opportunity. The applicant did not do so. She returned to China [in] April 2009. This is not the conduct of a person who has a well-founded fear of persecution. She practised her religious beliefs in China whilst on that short trip. She was not harmed although she said that she was fearful. Again this is inconsistent with the conduct of a person who has a well-founded fear of persecution to return to the country and carry out activities which give rise to her fear of persecution. She returned to Australia and studied for about a year until financial support ceased. She did not apply for a protection visa when she returned to Australia or when her financial support ceased. This is given some weight. She stayed in Australia unlawfully from 15 March 2010 until 16 December 2016. She did not apply for a protection visa during this period. She has not explained why she did not do so. This is given some weight. The applicant said that the catalyst for her protection visa application was her father’s arrest [in] October 2016. She applied for a protection visa on 15 November 2016. As discussed below, the statement of [Mr A] and the detention certificate are given weight. The applicant’s explanation as to the delay in applying for a protection visa is unconvincing and given some weight. At the hearing the applicant made several references to her brother being arrested and detained. This was not included in any previous material. She asserted that this occurred on 19 or 20 April 2017. There is no statement from any other person to corroborate this assertion. The statement of [Mr A] does not mention it. It has not been previously asserted that this occurred. The applicant’s explanation about why this matter had not been mentioned previously was unconvincing. The Tribunal does not accept that the applicant’s brother was arrested and detained on or about 19 or 20 April 2017 or at all.
Further, the applicant in her statement asserted that she received some legal advice about seeking a protection visa. When asked to explain this in the hearing she became evasive and then said it either came from internet chat sources or from “brothers and sisters” within the church. The Tribunal does not accept the explanation. This is given some weight. The applicant asserted at the hearing that since her father’s release from detention, the local police have visited her parents’ home at frequent intervals. She said that this continues to be so. This has not been previously mentioned in the material and was not mentioned by [Mr A] in his recent statement. This is given some weight. The Tribunal does not accept that the applicant’s father is being harassed by local police as a result of his religious beliefs.
The applicant asserted at the hearing that the reason she did not return to China after her financial support ceased was because she wanted to earn money to repay her parents. The applicant has produced no corroborative evidence of the loan, or of any repayments. The Tribunal does not accept the explanation as to why she did not return to China after her financial support from her parents ceased. This is given some weight. The Tribunal also observes that the applicant did not say she did not return to China because of the fear of persecution. This is given some weight particularly in circumstances where she had earlier said in evidence that at all material times, even when she returned to China for the short visit, she was fearful of persecution.
The applicant produced a variety of documents to both the Department and the Tribunal to corroborate her claims for protection. However she did not refer to them in her oral evidence. 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. However, notwithstanding the applicant’s failure to refer to the documents, the Tribunal has had regard to them and makes several observations. Insofar as the documents provided to the Department are concerned, the Tribunal makes some observations on what appeared to be the most relevant. Photographs of people of Asian appearance were produced. There is no legend or narrative. The applicant did not refer to these documents during the hearing. In the absence of any testimony by the applicant they are given no weight. As to the documents produced to the Tribunal, a statement from [Mr A] dated 31 July 2021 was produced. The author stated he is the applicant’s father and that he was arrested and detained [in] October 2016. He states that he was detained for one week and assaulted. It does not state why he was arrested but does state that the arrest occurred during a church gathering. It does not state that other people were arrested. He does not state that the applicant attended church from a young age. The Tribunal notes that the document was not produced until recently. The Tribunal has no way of verifying whether this person is the applicant’s father and whether it is a statement from the applicant’s father. The document does not refer to the alleged arrest and detention of his son, the applicant’s brother. It is given little weight. A certificate of release from detention was produced. It states that [Mr A] was detained from [date] October 2016 until [date] October 2016. It does not state why he was detained. The Tribunal notes the prevalence of fraudulent documents produced by visa applicants from China especially from Fujian province. The applicant is from Fuqing city in Fujian province. This document is given little weight. A statement from [Mr B] dated 24 June 2021 states that the applicant and the second applicant attend church in Melbourne and have done so since “the beginning of 2016”. It does not refer to any earlier attendances. The Tribunal accepts the applicant and second applicant have attended a Christian church in Australia from “the beginning of 2016”. Several photographs were produced. They are photos of persons of Asian appearance in various pursuits both indoors and outdoors. There is no legend or narrative. They were not referred to by the applicant during the hearing. In the absence of any testimony by the applicant they are given no weight.
The conduct of the applicant in arriving in Australia, returning to China and then returning to Australia, ceasing studying, staying in Australia after the expiry of her student visa in March 2010, and not applying for a protection visa until 2016 are inconsistent with the conduct of a person who has a well-founded fear of persecution. The applicant’s conduct is more consistent with that of a person who is intent on remaining in Australia by any means possible. This is given some weight.
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 her claim for protection in Australia.
It is also relevant that the applicant travelled to Australia as a student in March 2008 but did not claim protection until November 2016. Her 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.[1] 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.[2] 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.
[1] Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.
[2] Subramaniam v MIMA (1998) VG310 of 1997.
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.[3] The applicant did not attend Christian churches in Australia until “the beginning of 2016”. She had been living in Australia since March 2008. She did not apply for a protection visa until November 2016. The conduct of the applicant in attending the Christian church in Australia several months before applying for a protection visa is conspicuous. The Tribunal is not satisfied that the applicant’s attendance at church in Australia was otherwise than for the purposes of strengthening her claim to be a refugee. That evidence is disregarded by the Tribunal.
[3] Migration Act 1958 (Cth), s 5J(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.
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)

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.
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.
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.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2)(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).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visas.
DECISION
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.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 5163

25 November 2021

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