1812711 (Refugee)

[2024] AATA 2314

1812711 (Refugee) [2024] AATA 2314 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812711

COUNTRY OF REFERENCE:                   China

MEMBER:Shahyar Roushan

DATE:20 June 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 20 June 2024 at 12:41pm

CATCHWORDS

REFUGEE – Protection Visa – China – religion – a member of the Local Church – fear harm for breaching China’s family planning regulations by giving birth to a child out of marriage – applicant would be forced to conceal his religious beliefs in a school environment – effective state protection against the harm the applicant fears is not available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 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 dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is [age]years old. He was born in Australia. His parents are nationals of China. The applicant’s father, Mr [A], arrived in Australia in January 2005, and his mother, Ms [B], arrived in September 2007.

2. On 15 August 2012, the applicant’s parents applied to the then Department of Immigration for protection visas. Their first son and the applicant’s older brother, [Master C], who was born in Australia on [date], was added to his parents’ protection visa application.

3. The protection visa application was made on the basis of claims made by [Ms B] to fear persecution in China for the reason of her religion as a member of the Local Church. She also claimed to fear harm for breaching China’s family planning regulations by giving birth to a child out of marriage. [Mr A] initially made no substantive claims in his protection visa application but subsequently claimed to fear harm on the basis of his membership of the Local Church. It was also claimed on behalf of the applicant’s brother that he fears harm in China as a ‘black’ child and because of his Christian beliefs.

4. On 20 February 2013, a delegate of the Minister refused the application, and on 27 November 2013, the former Refugee Review Tribunal (RRT) affirmed the decision not to grant the applicant’s parents and his brother protection visas.

5. On 25 January 2018, an application for a protection visa was lodged on behalf of the applicant by [Ms B].

6. On 20 April 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 the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

7. In a Statutory Declaration, declared by [Ms B] on 25 January 2018, she responded on behalf of the applicant to questions in the protection visa application in relation to his reasons for claiming protection in Australia. [Ms B] provided the following information in her Statutory Declaration.

8. [Ms B] was born in China on [date], in [Village 1], [Town 1] Town, Fuqing City, Fujian Province. She studied at [Village 1] Primary School for six years and at [Town 1] Middle School for three years. She subsequently attended [a] School. She arrived in Australia on [date]September 2007 when she was [age] years old to continue her studies. In Australia, she met her husband, [Mr A].

9. While attending [Town 1] Middle School, [Ms B] formed a friendship with a classmate, Ms [D], and they remained in contact.

10. In 2014, Ms [D]’s boyfriend died as a result of a heart attack, prompting her to return to [Village 1] Village where she was supported by ‘many Christians’ from the Local Church. Ms [D] became a Christian in 2015 and was subsequently asked by the Local Church to organise ‘training classes’, teaching the villagers how to read and write. Ms [D] used this opportunity to evangelise to the villagers. She also organised a Bible study group for the children of the Christian families in the village to study the teachings of the Local Church.

11. From 2016 to 2017, [Ms B] supported Ms [D]’s activities by sending her books, such as ‘[Book 1]’. However, the Chinese government introduced ‘much tougher measures to crack down on the underground churches’ in 2017. These measures particularly affected the Local Church, which was regarded as an ‘evil cult’ by the Chinese authorities.

12. In December 2017, Ms [D] came to the ‘particular attention’ of the Public Security Bureau (PSB) and was arrested due to her activities. She was tortured by the police and ‘confessed everything’, disclosing to the authorities that [Ms B] had sent her copies of ‘[Book 1]’.

13. On 3 January 2018, [Ms B]’s parents’ home was raided by the police. Her parents were taken to the PSB and interrogated. Since then, [Ms B] has been labelled an ‘Evil Cult activist who will seriously jeopardise state security’ and she is at risk of being arrested and imprisoned if she were to return to China. She is concerned that other members of her family, including the applicant, would be implicated in her case and harmed as a result.

14. [Ms B] further stated that despite changes to the family planning laws in China, she is still concerned that she has ‘violated the relevant regulation’ by having children out of wedlock. This means that she would be required to pay social compensation fees if the family were to return to China and the applicant would be unable to ‘have access to normal education system and public health service’ and ‘it will be impossible for him to survive in China’.

    The interview

15. On 12 April 2018, [Ms B] attended an interview with the delegate to give evidence on behalf of the applicant. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, [Ms B]’s evidence to the delegate is referred to in the Tribunal’s analysis below.

    The delegate’s decision

16. The delegate was satisfied that the applicant fears persecution amounting to serious harm in China for the reason of his religion and imputed political opinion. The delegate based this finding on the applicant’s claim that his mother is a member of the Local Church, and it would be likely that he (the applicant) would also join the Local Church. The delegate, however, was not satisfied that [Ms B] would be targeted by the Chinese authorities on the basis of her religion, and by extension was not satisfied that the applicant would face a real chance of serious harm due to his mother’s religion. The delegate found that the applicant’s fear of harm is not well-founded. The delegate also found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant would suffer significant harm as required by s 36(2)(aa).

    The review application

17. On 3 May 2018, the applicant applied for a review of the delegate’s decision to the Tribunal. He was represented in relation to the review by Mr Harry Huang, a registered migration agent.

    Pre-hearing submissions

18. On 28 February 2024, Mr Huang submitted a number of documents in support of the application for review, including medical and psychological evidence in relation to the applicant’s older brother, [Master C]; school reports and other records in relation to the applicant, issued by [a] School; two letters of support from members of [Ms B]’s congregation, attesting to her Christian devotion and piety; undated photographs of the applicant and his mother attending various church-related activities; and screenshots of [Ms B] attending video calls.

19. Mr Huang also submitted a Statutory Declaration, declared by [Ms B] on 27 February 2024. In her Statutory Declaration, [Ms B] reiterated that she fears being arrested and imprisoned by the Chinese authorities due to having previously sent copies of the Recovery Version of the Bible to her friend. She also stated that, due to the significant changes to the family planning laws and policies in China, she no longer believes that the applicant is at risk of harm in China as a consequence of the application of these laws and policies. However, she firmly believes that the applicant continues to be at risk of harm in China due to his Christian faith as a follower of the Local Church.

    The hearing

20. [Ms B] appeared before the Tribunal on 7 March 2024 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant, [Ms B]’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

21. Following the hearing, [Ms B] submitted a Statutory Declaration, declared on 5 April 2024, in which she provided further explanations and additional comments in response to concerns put to her at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant law

22. 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.

23. 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.

24. 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).

25. 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.

26. 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

27. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, reasons and findings

28. For the following reasons, I have concluded that the decision under review should be remitted for reconsideration.

29. In this matter, the applicant’s claimed fears of harm are inextricably linked to his parents’, and more specifically his mother’s, fears of harm. The applicant’s parents are not included in the application under review. As noted above, their own application for protection visas was refused by the Department and that decision was affirmed by the RRT on 27 November 2013. Nevertheless, before I assess the claims made on the applicant’s behalf by his mother, it is necessary for me to determine whether or not I accept the applicant’s parents’ claims of harm in China, upon which the applicant’s claims rest.

30. In essence, [Ms B] had previously claimed that she had been involved with a branch of the Local Church in China from a young age and that she and her parents attended gatherings of this church. The RRT was prepared to accept these claims. The RRT was also prepared to accept that she may have involved herself with the Local Church in Australia at some level following her arrival. The RRT, however, did not find credible [Ms B]’s claims that she or other members of her family ever suffered harm because of their involvement with a branch of the Local Church in their village. More specifically, the RRT rejected [Ms B]’s claim that her mother had been arrested and detained by the authorities as a consequence of her involvement with the same branch of the Local Church.

31. The contents of [Ms B]’s Statutory Declaration of 25 January 2018 in connection with the present application build upon claims she had previously made to the Department and the RRT in relation to her religious beliefs and practices in China. At the core of her more recent evidence was her claim that she had sent Christian books to China to support her friend’s religious activities. Her friend was subsequently arrested and disclosed to the authorities under duress that [Ms B] had sent her copies of ‘[Book 1]’. This admission had led to the home of [Ms B]’s parents being raided and her parents being interrogated in January 2018, further implicating [Ms B] and, by extension, other members of her family.

32. I have serious reservations in relation to the reliability [Ms B]’s claims. When giving evidence on behalf of the applicant at the Tribunal hearing, [Ms B] stated that her parents were detained for two days in January 2018, but have suffered no further harm since then. When asked if they had ever been harmed previously, she said no. This response was consistent with [Ms B]’s oral evidence at the interview with the Department, conducted on 12 April 2018, where she stated that while her parents’ movements were always monitored by the local police, the police never raided their family home or obtained any evidence against her parents. However, it was inconsistent with [Ms B]’s claims in her own protection visa application, where she had stated that her mother was arrested and detained in labour reform for three months, and in 1985 her father was arrested and placed in labour reform for one year. At the RRT hearing, [Ms B] added to these claims, stating that after she entered Australia, she continued to attend her Local Church in China by video and that in March or April 2012, there was a raid on a gathering which she was watching, and the video feed was cut off. Her mother was detained for three days, and her sister nearly lost her job.

33. [Ms B] was asked to explain the inconsistencies in her evidence at the Tribunal hearing. She responded that there are many things that she cannot recall properly. In her post‑hearing Statutory Declaration, [Ms B] explained that she was under ‘huge pressure during the hearing, mentally and psychologically’ and that she might not remember some ‘events or matters’ that happened about 12 years ago, such as her ‘mother’s troubles in 2012’. I do not find these explanations to be persuasive and do not accept that, despite passage of time, she simply could not recall the significant incidents she had previously referred to. I also share the delegate’s concern as recorded in the decision under review in relation to [Ms B]’s unsatisfactory explanations at the Departmental interview as to why she had become a target of the Chinese authorities, given the material she claims to have sent to China already exist in that country and why her Chinese passport was renewed by the Chinese Consulate in Australia in [2018] and after she claims to have been blacklisted.

34. [Ms B]’s evidence casts significant doubt on her claims regarding the past persecution of her parents, her claims to have sent the Recovery Version Bible and ‘[Book 1]’ to China and the arrest of her friend, harassment of her parents and being placed on a blacklist by the authorities as a consequence. I do not accept any of these claims.

35. However, [Ms B] has consistently claimed over a number of years that she was a member of the Local Church in China and that she remained committed to her faith after she arrived in Australia. The RRT in 2013 accepted that [Ms B] was involved with a branch of the Local Church in her village and that ‘she may have involved herself with the Local Church in Australia at some level’. In their decision in relation to the applicant, the delegate did not reject the claims made on the applicant’s behalf that he would follow in his mother’s footsteps in becoming a member of the Local Church. The delegate, however, was not satisfied that [Ms B] would be a target of the Chinese authorities on the basis of religion.

36. In support of the application for review, [Ms B] submitted two letters of support from members of [Ms B]’s congregation, attesting to her Christian devotion and piety, and numerous undated photographs of the applicant and his mother attending various church‑related activities. At the hearing, [Ms B] stated that she had attended Local Church branches in various locations in Sydney, including [suburbs]. She was baptised in April 2018 but stopped attending church activities after December 2018 due to the challenges posed by her older son’s diagnosis of [a medical condition] and the subsequent outbreak of the COVID‑19 pandemic. I asked her, given her long association with the Local Church, why she had decided to undergo baptism in April 2018. She responded that she was given this opportunity at that time, and she truly believed in God. When pressed, she said she did not think about it much. She was already baptised in China, but she was told by fellow members of her church in Sydney that it would be better for her be baptised again. I also pointed out to [Ms B] the close proximity between the time of the lodgement of the applicant’s protection visa application and her baptism. She stated that this was simply a coincidence. In her post‑hearing Statutory Declaration, [Ms B] offered more explanations, stating that she was baptised at the age of [age] in China. As members of the Local Church can be baptised multiple times, she was baptised once again in Australia in January 2018. Her second baptism was ‘never’ for the purpose of strengthening her son’s claims for protection, but it was ‘due to [her] faith as a Christian of the Local Church and [her] extremely difficult circumstance during that period’. She further stated that, during the pandemic between early 2020 and the end of 2021, she had attended online (Zoom) church meetings on a weekly basis and later she attended church meetings in person in [a suburb]. Despite some reservations, I am prepared to accept this evidence. I accept that [Ms B] has continued to be involved in the Local Church in Australia and remains committed to her faith. While there have been some interruptions to her church attendance in the past, I accept her explanations for these gaps. I also accept that [Ms B]’s husband, her older son and the applicant have also been involved in a variety of church activities on a regular basis over the past few years. I accept that [Ms B]’s two sons have been genuinely brought up as Christians and followers of the Local Church. I am not satisfied that this involvement has been manufactured and designed for the sole purpose of strengthening the applicant’s claims for protection.

1. While I have accepted that the applicant has been genuinely brought up to follow his parents’ religious beliefs, there are inherent difficulties in assessing whether a [age]-year-old child is capable of having developed a genuine commitment to the religion of their parents. Arguably, a young child may simply be following their parents’ directions and instructions in the manner they involve themselves in a church or express their faith. In the circumstances of this case and in view of the applicant’s age, I did not consider it appropriate to question him with regard to his subjective beliefs and adherence to the Local Church at the hearing. Nevertheless, I have accepted that the applicant has undergone religious education and has participated in religious activities from a young age. I accept [Ms B]’s evidence that the applicant has been growing up in ‘the Christian environment of the Local Church’ and attends meetings and Sunday schools. [Ms B] also described how the applicant prays and ‘talks to God’.

2. I accept that [Ms B] and [Mr A] would continue to practise their faith in China. I accept that they would seek to attend underground Local Church gatherings and participate in other activities, albeit secretly. I accept that the applicant and his brother would continue to receive religious instructions from their parents or other church members.

3. The country information before me indicates that China has implemented a series of laws and regulations that place significant restrictions on religious education for minors, aiming to align religious practices with the socialist values of the state and the ideology of the Chinese Communist Party (CCP).

4. The Regulations on Religious Affairs as revised in 2017 and effective from 1 February 2018, in essence, banned minors from participating in religious activities or receiving a religious education. While the Regulations on Religious Affairs did not appear to explicitly ban minors from religious activities, they heavily restricted religious education and practice.[1] The State Administration of Religious Affairs (SARA) is responsible for implementing the CCP’s Regulations on Religious Affairs and administers the provincial and local bureaus of religious affairs.

   [1] ‘Regulations on Religious Affairs (2017 Revision)', State Council of the People's Republic of China, State Council of the People's Republic of China [English.gov.cn], 1 February 2019, 20190620101102

5. According to the 2018 US Department of State Report on International Religious Freedom for China:

   The revised religious regulations implemented in February and policies enacted by the state-sanctioned religious associations inhibit children under the age of 18 from participating in religious activities and religious education. For example, one provision states that no individual may use religion to hinder the national education system and that no religious activities may be held in schools other than religious schools. At the county level, religious affairs bureaus in localities including Henan, Shandong, Anhui, and Xinjiang have released letters telling parents not to take their children under 18 to religious activities or education.[2]

   [2] International Religious Freedom Report 2018 - China (Including Hong Kong and Macau), US Department of State, 21 June 2019,

6. The 2022 US Department of State Report for China stated:

   Regulations allow only the five state-sanctioned religious associations or their affiliates to form and register religious schools. Children younger than 18 are prohibited from participating in religious activities and receiving religious education, even in schools run by religious organizations. One regulation states that no individual may use religion to hinder the national education system and that no religious activities may be held in schools. The law mandates the teaching of atheism in schools, and a CCP directive provides guidance to universities on how to prevent foreign proselytizing of university students.[3]

   [3] International Religious Freedom Report 2022 - China (Including Hong Kong and Macau), US Department of State, 15 May 2023,

7. The Law of the People’s Republic of China on Protection of Minors, as revised in 2020, also prohibits parents or guardians from allowing or abetting ‘minors to participate in religious cults or superstitious activities …’[4]

   [4] Law of the People's Republic of China on Protection of Minors - 2020 Revision, National People's Congress (China), 17 October 2020, Art. 17.

8. An October 2023 article by the Pew Research Center noted:

   Children under 18 are constitutionally prohibited from having any formal religious affiliation in China. There is also a ban on religious education, including Sunday schools, religious summer camps and other forms of youth religious groups. Schools focus on promoting non-religion and atheism, and many children join CCP‑affiliated youth groups, where they must pledge commitment to atheism.[5]

   [5] 10 things to know about China’s policies on religion', Pew Research Center, 23 October 2023, >

   Christian advocacy organisation, Open Doors, identified two broad areas in which the children of Christians have been impacted in their 2022 reporting period:

   … Parents have been hindered in raising their children according to their Christian beliefs …

   As indicated above, in some parts of China, children have been set under pressure to tell teachers (who in turn have been pressured by their superiors, see Block 2.8 above) and the local authorities if their parents are active adherents of a specific religion. The CCP goes to great lengths to encourage an anti-religious mindset in children and warns that religious activities are to be regarded as illegal behavior. Strong atheistic education and promotional opportunities based on a young person's loyalty to the CCP, as well as restrictions on minors attending church, make it difficult for Christian parents to raise their children according to their Christian beliefs. Another area where the CCP places a lot of emphasis is on influencing the younger generation to fully take on board Communist culture. It is therefore of no surprise that home-schooling is totally illegal, as is religious instruction for minors under the age of 18 (Christianity Today, 7 April 2022). Christian parents looking for ways for their children to avoid imbibing CCP ideology in the state education system have no real options. Although international and private schools exist, they are heavily restricted and financially inaccessible for most families (South China Morning Post, 5 December 2021). For converts from Muslim or Buddhist background, members of their wider family will try to influence the education of their children.

   … Children of Christians have been harassed or discriminated against because of their parents’ faith …

   If children remain strong in their Christian faith, despite being constantly taught otherwise, teachers (and peers) discourage them from attending Christian activities in order to avoid pressure from superiors. Religious books are seen as "reactionary readings" and students are strongly discouraged from reading them. By law, all children are required to attend state school education according to the 9-year free education scheme. This policy has been very strictly implemented by the authorities. Reportedly, a new survey form investigates the religious affiliation of college students and graduates in China and prohibits them from expressing any religious convictions at all (China Aid, 27 May 2022). Young people in some areas have been threatened with not being allowed to graduate or not being accepted for further studies. This pressure is even stronger on children of known converts.

9. The China Aid ‘Annual Persecution Report’ for 2021 referred to examples of children being present during raids of house churches, including one where a child was struck on the head by a water bottle during a raid on the Early Rain Convent Church and 10 children (along with 18 adults) were taken to the police station by bus.[6] China Aid’s 2022 Report also included references to a number of cases in which children were located by the authorities in house churches, including taking a nine-year-old child to the police station in Shilpa for interrogation, ‘reportedly traumatising the child with intimidation’. In another case, a parenting event organised and attended by 70 Christians from Linfen Covenant House Church was raided by more than 100 police officers, detaining children for a few hours. In another raid on Beijing Zion Church’s subsidiary church in Mentougou District, the police ‘seized nine Christians and two children’.[7] The organisation’s 2023 Report referred to further instances of harassment and monitoring by the authorities, including sending letters to parents of kindergarteners asking them to pledge to not believe in religion, issuing data collection surveys on the religious beliefs of students and their family members in elementary and high schools, interfering with church-sponsored education and youth activities, raiding Christian schools and co-op groups attended by children, and imposing restrictions on Christmas celebrations in schools and businesses.[8]

   [6] 'ChinaAid’s Annual Persecution Report 2021', China Aid Association, 1 March 2022, ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023,

   [8] 'ChinaAid’s Annual Persecution Report 2023', China Aid Association, 1 March 2024, >

   In January 2024, China’s ‘Patriotic Education Law’ came into effect. This new law aims to strengthen patriotism and loyalty to the CCP across all sectors of society, including religious groups and education institutions.[9]

   [9] China’s New Patriotic Education Law Tightens Grip on Church Leaders, Persecution.org, 17 January 2024, Hu Zimo, China: Guidelines Instruct Religions How to Implement the New Patriotic Education Law, Bitter Winter, 12 January 2024, and Lin Ganfeng, China's Patriotic Education Law Further Cracks Down on Religious Freedom, VOA, 5 January 2024,

10. The law requires religious groups to adapt their educational activities to promote the CCP’s official ideology and ‘sinicize’ religions to align with socialist values[10] and mandates that religious staff and followers must enhance their ‘patriotic sentiment’ and awareness of the primacy of state laws over religious rules.[11] The law also places significant restrictions on children’s religious education. It tightens the CCP’s control over religious groups and aims to instil party loyalty in religious believers from a young age, severely limiting religious education opportunities for children.[12] The law states that schools must incorporate patriotic education across all subjects and grades, including trips to ‘patriotic education sites’.[13] Religious groups are prohibited from providing religious instruction to minors under 18, such as Sunday schools or youth camps. Local authorities in some regions have explicitly banned minors from entering churches and imposed heavy fines for holding religious youth activities.[14]

    [10] Matthew Santucci, China’s new ‘Patriotic Education Law’ places further limits on religious instruction, CAN, 9 November 2023,

    [11] Hu Zimo, China: Guidelines Instruct Religions How to Implement the New Patriotic Education Law, Bitter Winter, 12 January 2024, China’s New Patriotic Education Law Tightens Grip on Church Leaders, Persecution.org, 17 January 2024, Lin Ganfeng, China's Patriotic Education Law Further Cracks Down on Religious Freedom, VOA, 5 January 2024,

    [13] Chris Lau and Simone McCarthy, China feels the country isn’t patriotic enough. A new law aims to change that, CNN, 6 January 2024, Lin Ganfeng, China's Patriotic Education Law Further Cracks Down on Religious Freedom, VOA, 5 January 2024,

11. Sources consulted by the Tribunal confirm that as a consequence of these measures, children of members of underground or unregistered churches in China face significant discrimination and challenges in the education system, including marginalisation and stigma from teachers and school authorities, being excluded from activities and being forced to renounce their faith.[15]

    [15] See China’s War on Children’s Faith, Christian Freedom International, 15 October 2020, Young Christian Banned from Celebration in School, Bitter Winter, EF Gregory, China’s Public Schools Are Failing Christian Families, Christianity Today, 7 April 2022, China’s Public Schools Are Failing Christian Families | Christianity Today; Lydia Blaha, CHINA – Chinese Christian children face bullying, discrimination from Communist gov’t, schools, Christian Persecution Mews (Blog), 6 October 2020, CHINA – Chinese Christian children face bullying, discrimination from Communist gov’t, schools – Christian Persecution News.

12. Regarding the Local Church, in its 2021 China Country Information Report, DFAT noted that the term ‘Local Church’ refers to descendants of a Christian-based religious movement from the 1960s. The group has experienced multiple splits and schisms and they are often collectively referred to as ‘Shouters’, which is sometimes used as a pejorative by critics or the government. DFAT also noted that Shouters are not as actively pursued in China as they once were, and they may not, in practice, be considered or treated as a xie jiao. The report, however, acknowledged that different sources offer conflicting information in relation to the delisting of Shouters as xie jiao. Nevertheless, DFAT assessed that:

    a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination. Local Church members do not attract the same amount of attention as Falun Gong or The Church of Almighty God, but DFAT notes inconsistent sources and information. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment under the same provisions of law as other xie jiao.[16]

    [16] DFAT, DFAT Country Information Report – China, 22 December 2021.

13. According to the US Department of State, however, the Chinese government characterises a number of Christian groups as ‘cult organizations’ or xie jiao, including the Shouters. The 2022 International Religious Freedom Report referred to the human rights publication Bitter Winter, which stated ‘the regime increasingly classified as xie jiao any group the CCP perceived as hostile to the regime, and courts “increasingly interpret the category by including in it even groups that are not part of the official list of the xie jiao”’.[17]

    [17] International Religious Freedom Report 2022 - China (Including Hong Kong and Macau), US Department of State, 15 May 2023,

14. I find that if the applicant were to return to China he would attend a state school. Homeschooling is illegal and an international or private school is not a readily available or affordable option for his parents. I accept [Ms B]’s evidence that the applicant would be forced to conceal his religious beliefs in a school environment. However, I’m also of the view that it would not be possible for a young child, such as the applicant, who has spent all of his life in Australia, has been immersed in Christianity and has only attended a Catholic school, to do so. I find it highly likely that the applicant would seek to give expression to his identity and beliefs as he understands them in one way or another, particularly to peers or teachers in a school environment.

15. Having regard to the country information set out above, I find that there is a real chance that the applicant would be subjected to harassment, verbal and physical abuse, bullying, intimidation and humiliating treatment in a school environment. I further find that there is a real chance that the applicant would be subjected to harassment and intimidation by the local authorities should he be discovered in the company of his parents at Local Church gatherings or other related activities. In assessing the seriousness of the harm, I have had regard to the applicant’s particular vulnerability associated with his very young age.[18] I find that the applicant would be impacted by the harm identified differently, elevating the harm to serious harm under s 5J(4)(b) of the Act. In reaching this view, I have also considered the Department’s Refugee Law Guidelines, which state that an applicant’s personal attributes are relevant in determining whether harm amounts to ‘serious harm’ under the Act. In particular, the Guidelines refer to the UNHCR Guidelines on Child Asylum Claims in describing the vulnerabilities of children, including the impact psychological harm may have on a child.[19] I am satisfied that the real chance of persecution relates to all areas of China.

    [18] See AGA16 v MIBP [2018] FCA 628. See also SZTEQ v MIBP (2015) 229 FCR 497 and SZBQJ v MIMIA [2005] FCA 143.

    [19] Department of Home Affairs, Refugee Law Guidelines, sections 3.11.7 and 3.11.9, as reissued 27 November 2022.

16. 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. I find that effective state protection against the harm the applicant 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.

17. 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

18. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Shahyar Roushan
    Senior 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.

    …