1807812 (Refugee)

1807812 (Refugee) [2024] AATA 4301 (5 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1807812
COUNTRY OF REFERENCE:                   China
MEMBER:Shahyar Roushan
DATE:5 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 05 August 2024 at 1:24pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Yiguandao member – land resumption without compensation – home demolition – detention – physical assault – exit procedures – delay in applying for protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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
BACKGROUND

The applicant is [an age]-year-old national of the People’s Republic of China. He arrived in Australia [in] June 2014 on a [Student] visa granted on 15 May 2014. His Student visa was cancelled on 15 March 2017 and he applied for a Protection visa on 18 July 2017.
On 12 March 2018, a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to his Protection visa application, the applicant resided at a single address in Fuzhou City, Fujian Province from birth until his departure from China in 2014. He completed his schooling in Fuzhou in [specified year] and was subsequently enrolled at the [a named college], where he studied ‘[a named course]’.
In a Statutory Declaration attached to his Protection visa application, the applicant made the following claims.
His parents operated a [service 1] business, which required them to travel frequently. As a result, he and his younger brother were cared for by their grandparents.
His grandfather owned a house in [a] District of Fuzhou City, which he had inherited from his father. The property was leased by his grandfather’s friend, [Friend A], who had converted the house into a [store].
In June 2013, the applicant’s grandfather and [Friend A] were notified that the property would be ‘expropriated’ by the [District] Government to make way for a new property development. However, the compensation offered to his grandfather was inadequate and his grandfather protested, seeking higher compensation. [Friend A] decided not to participate in this protest and ‘surrendered’ his store in November 2013. The applicant’s grandfather was not deterred and continued protesting by refusing to leave the property.
In December 2013, the property was demolished with the applicant’s grandfather still inside. His grandfather was killed, and the applicant decided to seek justice. However, his complaints to the [District] Real Estate Development Company, the [District] Government and the Public Security Bureau (PSB) were futile.
On [a day in April 2014], the applicant held a ‘memorial service’ for his grandfather at the demolition site. He gave a speech to passers-by, condemning the local authorities and the construction company for killing his grandfather. He was able to attract the attention and sympathy of a large crowd. As a result, he was arrested by the police and ‘accused of inciting anti-government activities and jeopardising social security’. He was detained for [number] days and was treated ‘inhumanly’. Eventually, he promised not to cause any more trouble and was released [in] April 2014 after his father bribed the PSB with ‘a lot of money’. Following his release, he was required to report to the PSB once a week, as he was still under investigation.
The applicant’s father had commenced making arrangements through a friend in January 2014 for the applicant to travel to Australia to study. After the applicant’s release from detention, his father urged his friend to arrange the trip as soon as possible. The applicant obtained his Australian visa in May 2014, and he departed China [in] June 2014 from Beijing airport after his father paid bribes. Following his departure, his parents were threatened and warned by the police ‘from time to time’ and their [service 1] business was ‘severely damaged’.
The applicant is now a member of Yiguandao[1] and believes that he will be persecuted by the authorities if he were to return to China.
[1] As recorded throughout these reasons, in the various evidence before the Tribunal, including the applicant’s evidence, the delegate’s decision record, and the country information considered, Yiguandao is also referred to as Yiguan Dao, Yi Guan Dao, YGD and I-Kuan-Dao.
In support of his application, the applicant submitted to the Department a copy and translation of his Yiguandao initiation card.
The interview
The applicant attended an interview with the Department on 16 November 2017. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
Following the interview, the applicant’s representative submitted an undated letter from [Leader A], stating that the applicant is a member of [Organisation 1] and has attended the temple regularly since June 2017. He was initiated on [a date] according to the Chinese lunar calendar, which converts to [a day in] July 2017. He also submitted two undated photos depicting the applicant at a temple and country information relating to the ‘treatment of Yiguandao practitioners in China, particularly in Fujian’.
The delegate’s decision
The delegate did not find the applicant’s claims to be credible. While she accepted that the applicant’s grandfather’s house was demolished in 2013, she rejected all other claims in connection with or arising from that claim and found that he had overstated his claims regarding his protest and subsequent detention in 2014. The delegate also found that the applicant’s ‘new-found faith’ and his temple attendances were opportunistic and undertaken because he saw this as a pathway to obtaining a protection visa. The delegate found the applicant’s delay in applying for a protection visa and his preparedness ‘to engage in fraud in order to obtain a Student visa by altering a passport and submitting false employment record’ further undermined his credibility. The delegate was not satisfied that the applicant is a refugee as defined by s 5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk they will suffer significant harm under s 36(2A) of the Act. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
The review application
On 22 March 2018, the applicant applied for a review of the delegate’s decision to the Tribunal. He was represented by Mr Harry Huang in connection with his review application. In support of his application, the applicant submitted a copy of the delegate’s decision record to the Tribunal.
Pre-hearing submissions
On 23 April 2024, Mr Huang forwarded to the Tribunal a number of photographs depicting the applicant’s ‘practice of Yiguan Dao in Australia’ and four letters of support from members of Yiguandao in Sydney, attesting to the applicant’s practice of, involvement in and activities in connection with Yiguandao.
On 26 April 2024, the applicant submitted a further letter of support from [Ms A], stating that the applicant is a ‘very devoted Yiguandao practitioner’, who was initiated [in] July 2017. She listed the various ways that the applicant has participated in religious activities and stated that he is of good character.
The hearing
The applicant appeared before the Tribunal on 1 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
Following the hearing, the applicant submitted a Statutory Declaration, declared on 12 May 2024, in which he provided further explanations and additional comments in response to concerns put to him at the hearing. He stated that the interpreter had significant difficulty interpreting Yiguandao terminology from Chinese to English and that the Tribunal’s concerns in relation to his knowledge of Yiguandao should be understood in this context. He stated that he is a ‘faithful believer’ of Yiguandao and a ‘major activist’ in the Yiguandao temple. It would be ‘impossible’ for him ‘to cease’ his practice of Yiguandao, to give up his faith or to ‘modify [his] behaviour’ by concealing his faith in China. If he were to return to China, he would ‘spread teachings’ of Yiguandao, ‘develop study groups’, and set up temples, bringing him to the adverse attention of the Chinese authorities.
The applicant provided further clarification and details in relation to his initiation, practices, Yiguandao beliefs and its benefits. He acknowledged that the religion had gradually established itself underground in China since the 1980s but noted that the threat of harm remains for Yiguandao leaders and major activists.
The applicant also submitted an updated letter of support from [Leader A], [title], dated [in] May 2024. [Leader A] referred to the applicant as ‘a faithful believer of Yiguan Dao and a major activist of the temple of Yiguan Dao – [full name], which is called ‘[Organisation 1] (‘[Temple 1]’)’. [Leader A] stated:
[The applicant] began to attend [Temple 1] in June 2017. He was initiated on [day] of Year of Ding You according to the Chinese lunar calendar (a.k.a. [date]/07/2017). Since then, he has been playing more and more important role in [Temple 1], such as spreading teachings of Yiguan Dao to others, bringing people into temple, acting as the first or the secondary ritual conductor, leading holy songs, assisting organization of Yiguan Dao conferences, and so on. Meanwhile, [the applicant] has regularly been attending weekly studies, celebrations on every New-Moon and Full-Moon monthly, as well as all other kinds of studies or activities of Yiguan Dao.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The applicant has made two central claims for protection: claims relating to the demolition of his grandfather’s property in China and claims regarding his practice of Yiguandao. As detailed below, I have found that the first set of claims lacks credibility and must be rejected. However, I have formed a different view in relation to the second set of claims and have concluded that the decision under review should be remitted for reconsideration on that basis.
The property
In essence, the applicant claims that a property owned by his grandfather was demolished in December 2013 by a real estate development company with approval from the relevant district authorities. His grandfather was inside the property at that time and was killed. In April 2014, the applicant staged a ‘memorial service’ for his grandfather at the demolition site and gave a speech to passers-by, condemning the local authorities and the construction company. He was subsequently arrested by the police, accused of engaging in anti-government activities and detained and mistreated for [number] days. He was released after the authorities were bribed by his father, but he was required to report to the PSB on regular bases as he was still under investigation. His father was assisted by a friend in arranging for the applicant’s departure from China in June 2014.
I have significant concerns in relation to the credibility of the applicant’s claims regarding the events that took place and his experiences before he departed China.
Firstly, I found the applicant’s evidence at the hearing as to why a single speech to random passers-by had attracted such severe reaction from the authorities unpersuasive. The applicant stated at the hearing that about 20 to 30 people had gathered to hear him speak. When I asked him why his speech had resulted in his arrest, detention and requirement for continuous reporting and monitoring, he responded that his love for his grandfather was deep, and he could not accept what had happened to him. When pressed, he stated that his grandfather’s property was worth more than the compensation offered. He added that the authorities wanted more money and they asked for bribes. I found this evidence unpersuasive in explaining why his speech on that occasion to a relatively small group of random passers-by had resulted in such a severe response by the authorities and their continuing adverse interest in him.
Secondly, the applicant claimed that he was required to report to the PSB on a regular basis following his release from detention and was under investigation prior to his departure. He claimed that his passport and visa were obtained through the assistance provided by his father’s friend and the payment of bribes. Nevertheless, the passport he had used to depart China from Beijing was issued in his own name and with the correct date of birth. When I asked him at the hearing if he had any difficulties departing China through Beijing Capital International Airport, he said ‘no’. Later in the course of the hearing, I put to the applicant the country information before me sourced from DFAT, indicating that exit and entry is strictly regulated in China and the government knows when people enter or leave the country through air and seaports. DFAT has assessed that ‘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’.[2] It was put to the applicant that, in light of this information, it is difficult to accept that if he was under investigation, he would have been able to depart China without any difficulties using his own passport. He responded that his father’s friend is a ‘tourist agent’ and he knows many people. When pressed, he stated that he was not sure how his father’s friend had made the necessary arrangements, but someone in uniform took him through the security checks. I put to the applicant that he had never previously mentioned that his departure was assisted in this manner. In response, he denied not having disclosed this information previously. I did not find the applicant’s explanations to be credible, let alone persuasive. His evidence demonstrated his tendency to improvise and manufacture claims to suit his purpose. I find that the applicant was able to exit China on his own passport because he was of no adverse interest to the authorities.
[2] DFAT, DFAT Country Information Report: People’s Republic of China, 22 December 2021, See also DFAT Country Information Report: People’s Republic of China, 21 December 2017 (‘A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese 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. 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)’; and DFAT Country Information Report: People’s Republic of China, 3 March 2015.
Thirdly, I do not accept that the applicant’s departure from China was in response to his claimed actions and the consequential adverse interest of the authorities in him. As noted in the delegate’s decision record, the applicant had applied for a Student visa in July 2012. The passport submitted with this application was found to be fraudulent and his visa application was refused in October 2012. This suggests that the applicant had planned to travel to Australia some two years prior to the events he claimed had prompted his departure from China.
The applicant’s unpersuasive evidence at the hearing further supported this view. I asked the applicant at the hearing if he had ever applied for an Australian visa prior to 2014. He said ‘no’. When pressed, he said he might have done so in 2008. I put to the applicant the information in the delegate’s decision record in relation to the 2012 visa application, and he denied any knowledge of that application, stating that his father must have applied on his behalf without his knowledge. I asked him why he thought his father had concealed this information from him. He replied he did not want to leave China and his father did not want to inform him about the application. I find the applicant’s evidence highly unpersuasive. I do not accept that the applicant’s father would have invested resources into applying for a student visa on the applicant’s behalf without his knowledge. I do not accept that the applicant had no knowledge of the 2012 application or any plans his father might have had with respect to facilitating his travel to Australia.

Moreover, according to the Statutory Declaration submitted with his Protection visa application, the applicant had attended [a named] Training Centre from August 2013 to December 2013 in order to prepare for an IELTS test. In December 2013, he sat the test. I asked him at the hearing why he had prepared for and sat the test if he had no intention of leaving China. He responded that it was ‘good’ to have an IELTS certificate and insisted that there was no connection between his 2014 Student visa application and the IELTS test he undertook in December 2013. Again, I found this evidence dubious and highly unpersuasive. I do not accept that the applicant would have invested much time and resources to prepare for and sit an IELTS test, which is specifically designed for ‘those want to move abroad for work and require a visa’,[3] for the sole reason that he merely thought it was good to have an IELTS certificate despite any lack of intention to leave China. I find that the applicant had planned and prepared for his departure from China with the intention of studying in Australia long before the claimed demolition of his grandfather’s house. I do not accept that the applicant decided to leave China as a consequence of his claimed actions in April 2014. I find that the applicant’s claims with respect to staging of the memorial service at the demolition site, his speech and criticism of the government and his arrest, detention and other consequences to be fabricated.
[3] IELTS, Why choose IELTS?, IELTS | Why Choose IELTS.
Finally, as noted by the delegate in her decision record, the applicant applied for a Protection visa application three years after he arrived in Australia. At the interview, he explained this delay by stating that no one told him about this option when he first arrived, he was not sure if his application would succeed, and he only found out about Protection visas when he joined Yiguandao. At the hearing, when I put to him his delay in seeking protection in Australia, he said he was afraid and did not want to get his family involved and was not sure if he would meet the criteria for the grant of the visa. He added that it was only after he attended the Yiguandao temple that other followers informed him about Protection visas. I put to him that, given his level of education, it was difficult to accept that he did not know or was unable to obtain information that he could seek protection in Australia. He said he was afraid. The authorities are still after him and had visited his parents as recently as the Chinese New Year to enquire about his location. I find the applicant’s explanations for his significant delay in seeking protection unconvincing. I do not accept that he had no knowledge of or was unable to make reasonable enquiries with regard to seeking protection in Australia in the period following his arrival in 2014 and before attending the Yiguandao temple in 2017. As I have already found that the applicant’s account of his experiences in China is fabricated, I do not accept that the authorities had any adverse interest in him or that they had visited or harassed his parents prior to or in the 10 years since his departure from China for the reasons he has provided. I do not accept that fear was a factor in the applicant’s failure to seek protection soon after he entered Australia in 2014. I am of the view that the applicant’s lengthy delay in seeking protection in Australia raises further significant doubts in relation to the veracity of his claims.
While I am prepared to accept that the applicant’s grandfather’s property was demolished in 2013, for the reasons outlined above, I do not accept any of the other claims arising or stemming from this claim. I do not accept that his grandfather was killed in the course of the demolition, that he staged a memorial service and a protest in April 2014 on the demolition site, that he was arrested by the police, that he was detained and mistreated for [number] days, that he was released by bribing officials, that he was required to report to the PSB on a weekly or monthly basis, that his family had to pay bribes to the PSB, that his father was forced to sell his business in order to meet demands for money from the PSB, that he departed China as a result of his actions, that his departure was facilitated through the payment of bribes or any form of intervention, that the authorities have any adverse interest in him or that they have continued to visit and harass his parents. I find these claims to be fabricated.
Yiguandao
The adverse credibility findings I have made above regarding the property claims raise significant doubts about the credibility of the applicant’s claims concerning Yiguandao. According to his own evidence, the applicant began attending [Temple 1] sometime in June 2017 and he was initiated soon after [in] July 2017. Two days later, he applied for a Protection visa. In my view, this strongly suggests that the applicant was motivated by boosting his claims for protection and achieving a favourable immigration outcome when he joined Yiguandao in 2017. However, having critically assessed the evidence before me, I am unable to dismiss the proposition that in the course of the past seven years the applicant has come to genuinely believe in and commit to Yiguandao. Nor am I persuaded that the activities and conduct engaged in by the applicant in Australia with respect to Yiguandao over this period has been for the sole purpose of strengthening his claim to be a refugee.
In support of his claims, the applicant has submitted a number of letters from fellow practitioners and two letters from the [leader at] [Temple 1]. The letters of support, which appear to have been authored by longstanding practitioners of Yiguandao at [Temple 1], all attest to the applicant’s devotions and regular participation in various activities, including introducing ‘new comers’ to Yiguandao. I accept that these letters reflect the genuine views of their authors in describing the applicant’s faith, commitment and activities.
In responding to my questions at the hearing about the doctrinal aspects and practices of Yiguandao, the applicant seemed to struggle at times and some of his answers did not appear to be commensurate with his professed level of knowledge and involvement with Yiguandao. In the Statutory Declaration submitted following the hearing, the applicant explained that the interpreter had significant difficulty interpreting Yiguandao terminology from Chinese to English. I accept this submission. While the interpreter assisting the applicant at the hearing was competent in every other respect, it was clear to me that they were experiencing difficulties in interpreting Yiguandao lexicon and related theological terms. I accept that this would have affected the presentation of the relevant aspects of the applicant’s evidence. Therefore, I have drawn no adverse inferences on the basis of this component of the applicant’s presentation at the hearing.
I accept that the applicant plays an active role in [Temple 1] by attending meetings, scripture reading, study groups and lectures. I accept that he has acted as the ‘ritual’ and ‘chanting’ conductor and has assisted with the organisation of meetings and conferences. The applicant has insisted in his evidence that he is involved in proselytising and talking to others, particularly his friends about Yiguandao. [Leader A] stated in his second letter that the applicant has taken part in ‘spreading teachings’ of Yiguandao and ‘bringing people into temple’. This claim was also reflected in the other supporting letters submitted by the applicant. I’m prepared to accept that the applicant has been involved in the activities referred to. I further accept that, if he were to return to China, the applicant would seek to locate, attend or even establish a Yiguandao temple. I accept that he would seek to continue his activities at the same level in China, including proselytising and distributing material to worshippers.
According to the country information sources before me, Yiguandao is a syncretic movement that contains aspects of Buddhism, Daoism, Confucianism, Christianity and Islam.[4] The basic beliefs incorporate many widespread Chinese folk beliefs (the Venerable Mother, use of Chinese lunar calendar) and adopted Buddhist features (the three treasures concept).[5] Yiguandao beliefs, however, may vary among different communities.[6] The group was banned in the 1950s and driven underground in China before attempting a resurgence following China’s Cultural Revolution, which resulted in a campaign of arrests.[7] While reports of arrests and imprisonment of members continue, Yiguandao was not included on official lists of banned cults (xie jiao) issued in 2000, 2005 or 2017.[8]
[4] Ching-chih Lin, ‘Yiguandao under the Shadow of Nationalism: Traitors, Conspirators, Traditionalists, or Loyalists?’, Chapter 8 in ‘Religion and Nationalism in Chinese Societies’, edited by Cheng-tian Kuo, Amsterdam University Press, 2017, p.243.
[5] Canadian Immigration and Refugee Board, REFINFO, 12 September 2001, CHN37199.E, (Tian Dao contacts), quoted in ‘China Country Report’, UK Home Office, October 2003, CHN8896.
[6] DFAT, DFAT Country Information Report - People’s Republic of China, 21 December 2021.
[7] ‘The Persecution of Unorthodox Religious Groups in China’, Dui Hua Foundation, 29 March 2022, Dui Hua Human Rights Journal: The Persecution of Unorthodox Religious Groups in China: A report by Dui Hua (duihuahrjournal.org); DFAT 2021, ibid.
[8] DFAT 2021, ibid.
I found limited information about Yiguandao, including attitudes towards Yiguandao by the authorities, in Fujian province. In April 2021, the US-based Dui Hua Foundation reported that Yiguandao is ‘likely’ to be concentrated in the two provinces of Guangdong and Fujian.[9] In 2019, DFAT reported that the status of Yiguandao in China is ‘unclear’ and that ‘there are no current estimates of the number of Yi Guandao followers in mainland China’. Furthermore, Yiguandao ‘is not included on the list of active cults released by the China Anti-Cult Association ... [t]his suggest Yi Guandao is not considered to have a significant active presence in mainland China by Chinese authorities’. DFAT also noted that authorities’ action against Yiguandao appears to be ‘localised and discreet’, highlighting very few incidents.[10] Prior to this, a 2005 report quoted an expert on religion in contemporary China who said it is ‘unlikely’ Yiguandao exists in China.[11]
[9] ‘The Ongoing Crackdown on Yi Guan Dao’, Dui Hua Foundation, 8 April 2021,
[10] Yi Guandao DFAT cable IC69305L, Department of Foreign Affairs and Trade, 18 February 2019.
[11] ‘China: The treatment of Tian Dao (also Yiguan Dao, various other spellings) followers by authorities; any reports of arrests in Guangdong (2001-2004)’, Immigration and Refugee Board of Canada, 6 January 2005, CHN43233.E.
As Yiguandao is not recognised as an official religion but is also not currently officially banned, it appears that the authorities in Fujian tacitly permit Yiguandao to operate in a discreet manner and are tolerant towards small gatherings and activities that focus on aspects of Chinese classical culture rather than the religious aspects of Yiguandao. The situation, however, varies from place to place. According to DFAT, ‘It is unclear in most cases whether Yiguandao followers have been criminally charged for their religious activities’.[12]
[12] Yi Guandao DFAT cable, n10, above.
In its April 2021 report, Dui Hua documented the prosecution of Yiguandao practitioners, mostly for proselytization offences and noted that the sentences appear shorter than for other xie jiao groups.[13] In an older report dated December 2018, Dui Hua discussed the more recent resurgence of Yiguandao following its past banning by the Chinese government as an ‘illegal secret society’ and ‘heretical sect’ at the conclusion of China’s civil war more than 70 years ago. Notably, the article pointed out that spiritual movements that have the potential of attracting a large following are considered a threat to the Chinese government, not tolerated, and are stigmatised by the government. The report also noted that information about Yiguandao activity on mainland China is scarce and offered varying perspectives for why. Noting its proximity to Hong Kong and Taiwan and legal status within both of these jurisdictions, one view is that if Yiguandao is active in mainland China its followers are likely concentrated in Guangdong and Fujian provinces.[14] Whilst the article did not provide any evidence that Yiguandao is active in Fujian, it referred to a crackdown on Yiguandao activities in February 2018 in Jiangsu province. It also noted that in May 2018, government authorities in a rural district of Guangdong issued a public notice about a ban against Yiguandao and followers were reportedly directed to register with the police and repent Yiguandao.[15]
[13] ‘The Ongoing Crackdown on Yi Guan Dao’, Dui Hua Foundation, 8 April 2021, See also; ‘The Resurgence of Yi Guan Dao’, Dui Hua Foundation, 31 December 2018, Dui Hua Human Rights Journal: The Resurgence of Yi Guan Dao (duihuahrjournal.org).
[14] ‘The Resurgence of Yi Guan Dao’, ibid.
[15] Ibid.
In its April 2021 report, Dui Hua referred to Yiguandao activity in Guangzhou based on court judgments. The report stated that Yiguandao ‘continues to gain traction among the middle-aged rural population in Shantou, Guangdong, where prosecutors accuse YGD [Yiguandao] of conducting ‘reactionary’ activities’. The term ‘reactionary secret society’ pre-dates China’s current Criminal Law and is not typically used nowadays. Rather, the term has been replaced by ‘organizing or using a cult to undermine implementation of the law’ under Article 300 of the current Criminal Law.[16] Details about the profiles of those arrested (seven Yiguandao leaders) and their activities indicate authorities concentrated their efforts on prosecuting leaders who established temples, actively proselytised and distributed material to worshippers. A court judgment that described circumstances surrounding the arrests ‘cited a witness as saying that there were four to five hundred worshippers at one of the temples on one occasion’. Furthermore, ‘[a]mong the new converts were an unspecified number of minors’ and ‘Du [a leader and the principal offender in the case] and other leaders were also accused of soliciting donations and membership fees from worshippers’. ‘The court found that the seven YGD leaders had inflicted great social harm for influencing a large number of members’.[17]
[16] Dui Hua Foundation, n9, above.
[17] Ibid.
The same Dui Hua report also referred to a separate court judgment showing that in May 2020 a Chinese Communist Party member was convicted and ‘received a prison sentence of eight months suspended for one year’ for ‘recruiting 70 members for his self-funded temple’. The convicted Party member ‘belonged to the same [Buddhist hall], a branch of YGD, in Shantou Chaoyang District’ in Guangdong that is linked to the abovementioned 2018 arrests. The group had recruited more than 200 members and appears to be linked to a Hong Kong-based Yiguandao group.[18]
[18] Ibid.
A 2020 book about Yiguandao by Sébastien Billioud provides some information about the different approaches authorities may take in terms of punishments towards Yiguandao leaders and followers. He stated:
Taiwanese initiators and lecturers are occasionally arrested in the PRC when the authorities raid a place of worship. When this happens, what may happen is that they are detained for a couple of days, expelled, and forbidden to come back for a period of five years. Books and material are occasionally confiscated. Punishment, however, might sometimes be harsher for Mainland adepts, and I heard about the case of an altar master condemned to a one-year jail sentence and a heavy fine. This being said, it is noteworthy here that the attitude of the authorities nevertheless varies depending on the location of the activities organized by the Yiguandao and their content.[19]
[19] Sébastien Billioud, ‘Reclaiming the Wilderness: Contemporary Dynamics of the Yiguandao’, New York, Oxford University Press, 2020, pp.170-171.
Billioud stated that in recent years the authorities in Fujian have tacitly allowed Yiguandao to conduct activities on a ‘small-scale’ that focus on aspects of classical Chinese culture rather than religion, despite their knowledge that Yiguandao is a religious sect. He further noted that some Yiguandao places of worship known as Buddha halls have been established in mainland China and tend to operate discreetly like underground Protestant house churches but are nonetheless at risk of being shut down by the authorities.[20]
[20] Ibid.
DFAT, however, assessed in 2019 that:
Restrictions on the free practice of religion continue to tighten in mainland China. These restrictions would likely affect followers of Yi Guandao. While the numbers of Yi Guandao followers in China remains unclear, and the group is not currently considered to be an 'active' sect in China, followers may be subject to suppression by Chinese authorities and police.[21]
[21] Yi Guandao DFAT cable, n10, above.
Having regard to the country information set out above and the applicant’s particular profile, I find that there is a real chance that he would be subjected to harassment, ‘suppression’, arrest, detention and mistreatment by the authorities in China. I find that this amounts to serious harm under s 5J(4)(b) of the Act. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I am satisfied that the real chance of persecution relates to all areas of China. I find that the essential and significant reason for the persecution feared by the applicant is his religion. I am further satisfied that the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution as such modification would be contrary to the requirements of s 5J(3) of the Act. As the applicant’s fear of harm is from the authorities, I am satisfied that effective state protection against the harm he fears is not available to him in China. I find that the applicant has a well-founded fear of persecution. I find that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. Section 36(3) therefore does not apply.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Shahyar Roushan
Deputy President

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.
…

[2024] AATA 4301

5 August 2024

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