1824370 (Refugee)

1824370 (Refugee) [2023] AATA 2888 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN 9579277)
CASE NUMBER:  1824370
COUNTRY OF REFERENCE:                   China
MEMBER:Peter Papadopoulos
DATE:9 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the third named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.

Statement made on 09 June 2023 at 2:33pm
CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Catholic – underground church – evangelism – claimed adverse experiences in China – credibility concerns – departure from China without incident – delay in seeking protection – voluntary returns to China – religious practice in Australia – proposed nature and extent of religious practice in China – religious education and practice for minors – bullying, ostracisation and humiliating treatment – particular social group – children of Catholic parents – siblings of a ‘black child’ born in China to Catholic parents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
CASES
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The first named applicant] is a [age]-year-old female who claims to be a national of China. [The second named applicant] is a [age]-year-old male who also claims to be a national of China. [The third named applicant] a [age]-year-old male and is the child of [the first named applicant] and [the second named applicant].
[The first named applicant] first arrived in Australia [in] May 2008 as the holder of a Subclass 571 Schools Sector (Class TU) visa. She was granted a further Subclass 571 Schools Sector (Class TU) visa on 11 September 2008. On 21 March 2011, she was granted a Subclass 573 Higher Education Sector (Class TU) visa. On 11 October 2013, [the first named applicant] applied for a Subclass 866 Protection (Class XA) visas (protection visa). Prior to making her application for a protection visa, [the first named applicant] departed Australia on four occasions where she resided in China between:
·     [April 2009] and [May 2009];
·     [August 2010] and [February 2011];
·     [December 2011] and [February 2012];
·     [November 2012] and [January 2013].
[The second named applicant] first arrived in Australia [in] May 2008 as the holder of a Subclass 571 Schools Sector (Class TU) visa and has not departed since that date. He became an unlawful non-citizen on 15 March 2010 and remained unlawful until he was granted a bridging visa on 15 October 2013. [The second named applicant] was included in [the first named applicant]’s protection visa application as a member of her family unit but protection claims were not initially raised on his behalf.
On [date], [the first named applicant] gave birth to her first child, a son named [Child A]. [Child A] was born in China and is not included in the protection visa application. [Child A] has lived in China since birth, is currently [age] years old and has never physically met his father [the second named applicant] or his younger brother [the third named applicant]. [Child A] has not had any physical contact with his mother since January 2013.
On [date], [the first named applicant] gave birth to her second child, [the third named applicant], in Australia. [The third named applicant] was included in the protection visa application as a member of his mother’s family unit but protection claims were not initially raised on his behalf.
On 3 November 2015, the delegate of the Minister for Home Affairs made a decision to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicants were not persons to whom Australia has protection obligations.
On 20 February 2018, this Tribunal, albeit differently constituted, affirmed the delegate’s decision to refuse to grant the applicants a protection visa. The applicants appealed to the Federal Circuit Court.
On 31 July 2018, the Federal Circuit Court quashed the first Tribunal’s decision and ordered the Tribunal remake the decision according to law.
This is that reconsideration.
The applicant attended a Tribunal hearing on 23 May 2023 and 1 June 2023. At that hearing, protection claims were advanced in relation to each of [the first named applicant], [the second named applicant] and [the third named applicant].
The issue in this case is whether any applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether any applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law and mandatory considerations is set out below.
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act, persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). A non-exhaustive list of instances of ‘serious harm’ is provided in s 91R(2) of the Act, including:
·     a threat to the person’s life or liberty;
·     significant physical harassment of the person;
·     significant physical ill-treatment of the person;
·     significant economic hardship that threatens the person’s capacity to subsist; and
·     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant 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) of the Act. (the complementary protection criterion).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in the protection visa application, the applicants are Chinese nationals. [The first named applicant] and [the second named applicant] were born in Fijian Province in China, while their son [the third named applicant] was born in Australia soon after the protection visa application was lodged. [The first named applicant] was the only applicant who raised claims for protection. She:
·     is a Chinese national who was born in Fujian Province in China
·     is ethnically Han and is a Catholic;
·     lived at [Address 1], Fuqing City, Fujian Province, China before she first arrived in Australia in 2008;
·     completed primary, middle and vocational and technical school in Fujian Province, China;
·     gave birth to her son [Child A] in China on [date];
·     married [the second named applicant] at a civil ceremony in Australia [in] May 2012. [The second named applicant] is also known by the name ‘[name]’, is ethnically Han and is a Catholic, and completed primary, middle and professional school in Fujian Province, China;
·     gave birth to her son [the third named applicant] in Australia on [date];
·     has the following family members in China:
o   her son, [Child A];
o   her father, [Mr B], born [date];
o   her mother, [Ms C], born [date];
o   her father-in-law, [Mr D];
o   her mother-in-law, [Ms E];
·     has the following family members in Australia:
o   her husband, [the second named applicant];
o   her son, [the third named applicant];
o   her brother, [Mr F], born [date].
In relation to her claims for protection, [the first named applicant] provided the following information in a statement that accompanied her application:
·     Chinese authorities began visiting her home after her mother became pregnant with her younger brother. The authorities were looking to enforce China’s family planning laws. This forced her mother to go into hiding. When government officials were unable to find her parents, they ‘smashed’ their house. On other occasions, they arrested her father and detained him in an attempt to force her mother to undergo an abortion. Her mother pretended to agree to the demand but secretly fled during the night. She eventually returned to her home after her brother [Mr F] was born.
·     [Mr F]’s birth caused financial hardship and her parents sent her to live with her aunt. Her aunt’s family are all Catholics but her parents are not.
·     She is a Catholic and first attended a family church when she was a little girl. She had been told that her aunt arranged for her to be baptised when she was five years old but she cannot recall the details.
·     The family church she attended with her aunt was often investigated by Chinese authorities. The church was not permitted to register and they were encouraged by the authorities to join a patriotic church.
·     She was arrested by a local authority for engaging in a ‘family gathering’ when she was in primary school. She was little at the time, so her parents ‘took the blame’.
·     Her middle school did not permit students to believe in Christianity. The government threatened students with ‘re-education via labour’ if they were found participating in underground church activities. As a result, her aunt stopped her from attending church gatherings at that time. Despite this, she still sought opportunities to attend gatherings secretly with others and participated in ‘evangelisation activities’ out of town during school holidays. She also formed student fellowships.
·     She was detained by local police for two days when she went with her aunt to Jiangxi ‘for evangelisation’ during her Year 9 summer holidays. When she returned to her hometown, she was questioned and fined by police. She was further warned and suspended from school.
·     In 2008, she decided to study in Australia. Her parents did not wish to support her financially because they needed to save the money for her younger brother. They attempted to arrange a marriage for her as a means of organising school fees. She says that because she was underage at the time, and had no choice but to agree to their arrangements.
·     After arriving in Australia, she received a ‘western’ education which changed her attitude towards life and philosophy. She admired the life of freedom.
·     Once in Australia, she met up with [the second named applicant]. They had previously been school friends in China. Their mutual religion and aspiration led them to start dating and eventually marry in 2012. The relationship is opposed by their parents.
·     In 2010, due to family pressure, she returned to China where she gave birth to her son [Child A]. Her parents were furious with her and refused to see her baby [Child A] or allow her to live at their home. [The second named applicant]’s parents oppose her religion and have refused to accept her and her son [Child A]. As a result, she resided with [Sister G], whom she met at church. She left [Child A] with [Sister G] and then returned to Australia.
·     [Child A] is unable to obtain household registration and is considered to be a ‘black child’. The government insists on sending children to sanctuary through penalising churches who adopt ‘black children’. She is very worried about her son [Child A] but grateful that he is being looked after by church friends.
·     She and [the second named applicant] are not financially independent. They have lost financial support from their parents. As a result, they now have to work whilst studying.
·     In 2012, she married her husband. Their families refused to contact them.
·     Currently, religion is her only ‘spiritual support’ and the situation in her hometown’s church remains the same as the persecution continues. In 2013, before Easter, her church was sealed by the government and all gatherings prohibited. Those who ‘appealed’ were arrested, including [Sister G].
·     She is pregnant and expects to give birth around [date].
·     She is afraid of returning to China because she refuses to recognise the patriotic church and wishes to remain a part of her underground church. She and her husband have been baptised in Australia and insist that they will evangelise in China.
Supporting documents

The following documents were lodged with the Department in support of the protection visa application:
·     Department Form 866B, ‘Persons included in this application and family composition’, received by the Department on 11 October 2013;
·     Department Form 866C, ‘Application for an applicant who wishes to submit their own claims for protection’, received on 11 October 2013;
·     Department Form 866D, ‘Application for a member of the family unit’, completed for [the second named applicant] and received by the Department on 11 October 2013;
·     a statement entitled “our statement” that was signed by [the first named applicant] and received by the Department on 11 October 2013 (original statement);
·     a copy of the biodata of a Chinese passport (reference [number]) issued to [the first named applicant] [in] 2011 and which expired [in] 2021;
·     a copy of the biodata of a Chinese passport (reference [number]) issued to [the second named applicant] [in] 2006 and which expired [in] 2011;
·     an Australian marriage certificate specifying that [the first named applicant] and [the second named applicant] were married in [Suburb 1], New South Wales [in] May 2012;
·     a Baptismal Remembrance Certificate specifying that [the second named applicant] was baptised in [Church 1] at [Suburb 2] [in] March 2013;
·     a Baptismal Remembrance Certificate specifying that [the first named applicant] was baptised in [Church 1] at [Suburb 2] [in] March 2013;
·     an untranslated Chinese birth certificate for [Child A];
·     an obstetric ultrasound report dated [date];
·     a NSW birth certificate for [the third named applicant] dated [date].\ and
·     a medical report from [Dr H], dated 1 February 2015, specifying that [the first named applicant] suffering from post-natal depression and referring her for treatment.
Protection visa application interview
The applicant attended an interview with the Department in connection with his protection visa application on 4 February 2014. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for the sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the protection visa application interview:
·     She was not previously married in China. Her parents arranged a marriage but she was only ever engaged to that person. Her fiancé paid for her to come to Australia. She does not know all of the details of that payment as her parents organised the arrangement. Her parents needed to pay back that money to her fiancé. Her parents actually had the money and are rich.
·     She began working part time as a kitchenhand in [location] in the city of Sydney. She has since ceased but cannot recall exactly when she finished.
·     A lot of money has been spent in order to obtain household registration for her son, [Child A], in China. She did not send this money from Australia. Rather, her family church in China provided assistance. She does not know exactly where the money came from and believes the fee was roughly between 17,000 and 18,000 RMB.
·     [The second named applicant] is [Child A]’s father. [The second named applicant]’s parents are listed on [Child A]’s household registration in China.
·     She met [the second named applicant] around April 2006 at a friend’s house after a school sports event. They entered into a relationship around Christmas 2006.
·     She cannot return to China to live with [the second named applicant]’s parents as they are divorced and do not like her because she is Catholic. She said they had to beg [the second named applicant]’s parents to agree to be listed on [Child A]’s household registration. However, [Child A] does not live with [the second named applicant]’s parents. [Child A] lives with [Sister G].
·     Her aunt’s family are all Catholics. She cannot live with her aunt because they no longer live in the same area and have their own son and daughter-in-law as well as another daughter.
·     Her parents do not accept [Child A], their grandchild, because they do not approve of her relationship with [the second named applicant].
·     Her parents would take the blame for evangelising when she was younger but privately they would beat her.
·     Between 2004 and 2008 she lived with her parents. Her parents paid for her to attend a private vocational and technology school.
·     She never attended a government sanctioned church in China. She had heard from other people that those churches believe in the government first and Jesus second. In Australia, she began attending a church in Australia in February 2012 but formally attended in 2013 and was baptised [in] March 2013.
Summary of the delegate’s decision
On 3 November 2015, the delegate refused the protection visa application. The delegate’s reasoning in support of their decision to refuse the application is summarised as follows:
·     The delegate accepted the applicants’ identities as claimed and that [the second named applicant] and [the third named applicant] were members of [the first named applicant]’s family unit. The delegate also accepted that China was the applicants’ receiving country for the purposes of the protection visa assessment and that the applicants did not have a current right to enter or reside in a third country.
·     After considering [the first named applicant]’s written and oral claims, the delegate found there were causes for concern about the veracity of those claims. The delegate found there were inconsistencies and discrepancies in the evidence. These led the delegate to conclude that several of the claims were implausible, including [the first named applicant]’s claim:
o   that she was unable to live with her in-laws in China because they were opposed to her religious beliefs despite them agreeing to be listed on her son’s household registration. The delegate found there was no evidence to show that [Child A] was living with [Sister G].
o   that her parents preferred her younger brother over her, even though her parents were willing to sacrifice themselves despite being opposed to her religious beliefs. Additionally, her parents had provided financial assistance to [the first named applicant] in the form of education through [a] Vocational and Technical School when she was in China. The delegate concluded that if [the first named applicant] returned to China, her parents would be able to support her.
o   to have been sent to her aunt’s house to live due to financial constraints on her parents. The delegate found this difficult to reconcile with the oral evidence that [the first named applicant]’s parents were ‘rich’.
o   to be a committed adherent of the Catholic faith in China or in Australia given her inability to describe her religion or what was important about her beliefs in any detail.
·     The delegate found her claims about evangelism in China to be vague and lacking any meaningful detail. Further, the delegate explained that when first asked when she attended church in Australia, she said in 2013. When asked why she had not attended sooner, as she had arrived in 2008, she changed her answer to February 2012. The delegate found the applicant was not being truthful in her answers.
·     With respect to her Catholicism, the delegate concluded that [the first named applicant] was not a practising or genuine Catholic when she was previously in China and that on the evidence she had not attended a church in Australia until at least 2013. The delegate also stated the first named applicant had acknowledged not attending church on a regular basis in Australia.
·     The delegate found the applicant delayed applying for a protection visa. The delegate determined that the delay in her lodging a protection visa application in the first instance in Australia strongly indicated her fear of harm was not genuine. The delegate noted that in the Refugee Law Guidelines (10.4.8), a delay in lodging for protection can support an adverse credibility finding in regard to an applicant’s claimed fear and is considered a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution.
·     The delegate was not satisfied that [the first named applicant] faced a real chance of being persecuted for a Refugees Convention reason and as a result found that her fear of persecution, as defined under the Refugees Convention, was not well-founded. The delegate further found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of [the first named applicant] being removed from Australia to China, there was a real risk that she would be subject to significant harm. Accordingly, the delegate refused to grant [the first named applicant] a protection visa. It followed that [the second named applicant] and Luas were also refused protection on the basis that they were not members of the same family unit of a person who was owed protection obligations.
Claims and evidence provided to the first Tribunal
The first Tribunal review application
On 30 November 2015, the applicants lodged an application for review of the delegate’s decision with the Tribunal. The applicants were not represented in connection with their review application.
Pre-hearing submissions and evidence
On 12 July 2017, the applicant provided the following additional documents to the Tribunal:
·     a certificate of Baptism and Confirmation from the Catholic Archdiocese of Sydney specifying that [the third named applicant] had been baptised [in] April 2014;
·     a medical certificate dated 11 July 2017 specifying that [the first named applicant] has a ventricular ectopic history and has been reviewed by a cardiologist; and
·     various photographs.
The first hearing
The applicant appeared before the Tribunal on 31 October 2017 to give evidence and present arguments. This hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The following additional documents were provided to the Tribunal at hearing:
· a letter from [Fr I], Chaplain, Western Sydney Catholic Chinese Community dated [in] October 2017; and
· 13 photographs.
Invitation to comment on or respond to adverse information
On 7 November 2017, the Tribunal wrote to the applicants under s 424A of the Act, inviting them to comment on or respond to certain information which the Tribunal consider would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The particulars of the information were recorded as:
When [the first named applicant] first attended Mass in Australia
At departmental interview on 4 February 2015 it is orally recorded that [the first named applicant] told the Department she understood the interpreter. When asked, she also stated that she first started attending churches in Australia in February 2012.
This is relevant because at hearing on 31 October 2017, [the first named applicant] stated she started attending Mass since October 2009 every Sunday. This is relevant because the Tribunal may find her answers inconsistent. If the Tribunal finds her answers inconsistent then, subject to your comments, the Tribunal would not be satisfied that she has been attending Mass for the times claimed.
[The first named applicant]’s knowledge of the Bible
At departmental interview on 4 February 2015, it is orally recorded that the following occurred:
Q. Have you read the Bible?
A. Yes
Q. Are you familiar with the Old and New Testament? Can you answer the question please?
A. If you want me to tell you every detail I won’t be able to
Q. I asked you if you are familiar with the Old and the New Testament?...
A. yes
Q. What is the difference between the Old and New Testament?
A. The Old Testament is about the process of how God preached and the New Testament is about after is about the New rule we need to obey after God resurrected
Q. Tell me about the New rule that we must obey
A. We need to obey the Ten Commandments
This is relevant because the Tribunal may find that at interview, [the first named applicant] told the Department that the New Testament was about the New rule that must be obeyed after God got resurrected and the New rule was to obey the Ten Commandments but the Ten commandments are in the Old Testament. This is relevant because the Tribunal may find that at interview, [the first named applicant] did not display knowledge of the Bible that is consistent with her alleged having read the Bible. If the Tribunal finds that [the first named applicant] did not display knowledge of the Bible that is consistent with her alleged reading of the Bible, then subject to your comments, the Tribunal would affirm the decision under review.
On 17 November 2017, [the first named applicant] requested an extension of time to respond. An extension was granted and on 21 November 2017, [the first named applicant] provided the following information in a letter dated 20 November 2017:
·     There had been interpretation issues with the interpreter during her interview with the delegate on 4 February 2015. In addition, she was very nervous, and as a result there was a misunderstanding between her and the immigration officer.
·     In Australia she began attending mass in October 2009. She may have stated February 2012 at the interview because of her nervousness.
·     She has read the bible but she does not carry it with her. She says that her biblical knowledge is growing but she does not have all its content or information memorised.
·     She says that when the delegate asked her about the Trinity she responded ‘the Holy Father, the Holy Son, and the Holy Spirit’, but ‘Holy Spirit’ was translated into ‘Holy God’.
·     She was only baptised once. She was not baptised in China.
·     She did not marry in a church. She is regretful of this decision.
On 28 November 2017, [the first named applicant] provided a further response to the Tribunal’s invitation. She added that, with respect to the Ten Commandments, she had explained that they are included in the Old Testament, but to her knowledge, there are words in some parts of the Gospels in the New Testament which refer to the Ten Commandments.
The second hearing
A second hearing was held on 19 January 2018. The second hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Pursuant to [the first named applicant]’s request, the Tribunal took evidence from two witnesses, namely [Fr I] and [Mr J], at the second hearing.
Post-hearing submissions and evidence
The applicant did not provide the Tribunal with any post-hearing submissions or evidence.
On 20 February 2018, the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to each applicant.
Claims and evidence provided to the second Tribunal
The applicant sought judicial review of the first Tribunal’s decision.
[In] July 2018, the Federal Circuit Court of Australia ordered the Tribunal reconsider the matter.[1] The court held that jurisdictional error had been established where the first Tribunal:
·     failed to comply with obligations under sections 424A and 424AA of the Act;
·     took into account irrelevant considerations;
·     based its finding on ambiguous and vague questions;
·     ought not to have allowed the unilateral intervention of an interpreter to muddy evidentiary issues.
[1] [Case citation]
This is that reconsideration.
In relation to this review, the applicants have been represented by a registered migration agent, Mr Harry Huang (MARN 9579277).
Pre-hearing submissions and evidence
Prior to the hearing, the Tribunal received:
·     Declaration signed by [the first named applicant] on 10 May 2023 (declaration of 10 May 2023);
·     Copies of [the first named applicant]’s expired Chinese passports;
·     Copy of [the second named applicant]’s Chinese passport that expired [in] 2011;
·     [The third named applicant]’ birth certificate;
·     Copy of the 2007 Letter of Pope Benedict XVI to the Bishops, Priests, Consecrated Persons and Lay Faithful of the Catholic Church in China;
·     Medical report in relation to [the first named applicant]’s health condition prepared by [Dr K], [named] Health Care Centre dated 9 November 2022;
·     [Child A]’s Chinese birth certificate (in Chinese);
·     An Australian marriage certificate specifying that [the first named applicant] and [the second named applicant] were married in [Suburb 1], New South Wales [in] May 2012;
·     A commemorative marriage certificate specifying that [the first named applicant] and [the second named applicant] were married in [Suburb 1], New South Wales [in] May 2012 by [Ms L], an authorised marriage celebrant;
·     Letter of support from [Fr M] OFM, Chaplain, Western Sydney Catholic Chinese Community dated 7 May 2023;
·     Letter of support from [Ms N], Western Sydney Catholic Chinese Community;
·     Photographs of church activities in Australia;
·     Baptismal Remembrance certificates for each of [the first named applicant] and [the second named applicant] confirming they were baptised by [Fr I] at [Church 1] in New South Wales [in] March 2013;
·     Baptismal certificate for [the third named applicant] confirming he was baptised by [Fr O] OFM at [Church 1] in New South Wales [in] April 2014;
·     Certificate of Marriage confirming that [the first named applicant] and [the second named applicant] were married according to the rites of Holy Roman Catholic Church at [named] Chapel, [Suburb 3] [in] August 2018;
·     Photographs of the marriage ceremony performed [in] August 2018;
·     Letters of support (in Chinese with certified translations) from [name], [name], [name], [name], [name], [name], [name] and [name];
·     [the third named applicant]’ School Reports from [School 1] for 2019, 2020, 2021 and 2022;
·     [The third named applicant]’ preschool and [School 1] class photographs;
·     Letter from [School 1] dated 4 July 2019 along with copies of 2021 and 2022 NSW Premier’s Reading Challenge certificates;
·     [The third named applicant]’ NAPLAN Student report - August 2022;
·     Photograph of [the third named applicant] with a classmate at [School 2], [Suburb 4];
·     Lead Teacher Award awarded to [the third named applicant] [in] April 2023.
The hearing: supporting documents and oral evidence
[The first named applicant] appeared before the Tribunal on 23 May 2023 and 1 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants’ representative also attended the hearing. The applicants did not request the Tribunal take evidence from any witnesses at the hearing. The applicant and the representative confirmed with the Tribunal at various points during the hearing that they were very happy with the quality of the interpreter’s services.
Taking into account the nature of the claims raised and the potential that [the first named applicant] might not be forthcoming in her evidence, the Tribunal assured [the first named applicant] during the making of its preliminary remarks at the outset of the hearing that the hearing was confidential and that nothing said in the hearing would lead to her or her family members being identified outside the Tribunal.
At the outset of the hearing, the applicant provided copies of passports held by her and [the second named applicant]. The Tribunal made photocopies of these documents and returned them to [the first named applicant] during the hearing.
On 29 May 2023, the Tribunal received a declaration made by [the first named applicant] earlier that day (declaration of 29 May 2023).
Where relevant, [the first named applicant]’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence

On 2 June 2023, the Tribunal received a translated copy of a statement from [the first named applicant] that was delivered in oral evidence at the conclusion of the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality: Country of reference/receiving country
[The first named applicant] and [the second named applicant] each claim to be a citizen of China and have provided to the Department copies of their Chinese passport issued [in] 2011 [and] 2006 respectively, with [the third named applicant] providing a copy of his NSW Birth Certificate. The delegate was satisfied that the applicants were using their own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of China. The Tribunal accepts that China is their receiving country for the purposes of assessing their claims for protection.
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[2] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[2] Fox v Percy (2003) 214 CLR 118
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[3] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[3] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[4] A similar approach is taken in the Department’s Refugee Law Guidelines[5] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[6] which provides useful guidance for this Tribunal.
[4] SZLVZ v MIAC [2008] FCA 1816 at [25]
[5] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[6] UNHCR Handbook, re-issued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[7] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[8] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[9]
[7] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[9] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[10] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[11] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
[10] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[11] Ibid
Having outlined the Tribunal’s approach to fact-finding, in determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[12] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[13]
[12] MIMA v Rajalingam (1999) 93 FCR 220
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[14] As the Tribunal explained to [the first named applicant] at the outset of the hearing, section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[15]
[14] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[15] Sun v MIBP [2016] FCAFC 52 at [69]
In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[16] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[17]
[16] MIMA v Rajalingam (1999) 93 FCR 220
[17] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
In the present case, the Tribunal takes into account [the first named applicant]’s general lack of familiarity with the Tribunal setting and her limited English language proficiency. The Tribunal has also had regard to the AAT Migration and Refugee Division Guidelines on Vulnerable Persons.[18] With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked [the first named applicant]’s responses where necessary.
[18] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)
The Tribunal has also taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence.
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
Assessment of [the first named applicant]’s claims for protection
At hearing, [the first named applicant] gave evidence relating to her birth place in China, residences in China and Australia, her education and work experience, her family composition and history, the emergence and expression of her Catholic faith in the underground Catholic church in Fujian, her evangelism in China, her adverse experiences in China for reason of her religion and her practice of Catholicism in Australia.
Asked at hearing why she fears returning to China, [the first named applicant] told the Tribunal that the Chinese government persecutes Catholics and the police would arrest her because she would participate in underground church activities and spread the gospel if she were to return to China. She explained that she was already known to the police because her name had been ‘taken down’ by police officers in December 2012 when they raided a house church gathering in Fujian in where she was present.
The Tribunal has concerns in relation to the truthfulness and reliability of the applicant’s evidence as they relate to her claims that she was an active member of an underground Catholic church in China where she practised her faith and evangelised in the community.
The Tribunal sought to explore the applicant’s claims and raised with the applicant her Catholic upbringing, faith practice and evangelism in China. The following key points emerged from the discussion:
·     Her parents were not religious. She began her life living with them at their home in the [Village 1] area of Fuqing. Due to financial pressures experienced by her parents in [year] when her brother was born on [date], she went to live with her aunt [Ms P] who lived nearby in [Village 1]. She was [age] years old when she was taken in by her aunt. She lived with her aunt [until] April 2004, at which time she moved back into her parents’ home when she was [age] years old. She remembers the day well because it was her brother’s [birthday] when she returned to her parents’ home.
·     Her aunt had married a Catholic and had herself become a Catholic after marriage. She recalled that she began attending underground church gatherings in people’s homes with her aunt when she was a four year old. She would accompany her aunt to these gatherings where people would read the bible, sing songs together, pray, share their experiences and sometimes share meals together. These gatherings would take place on a weekly or fortnightly basis in Saturday evenings between 6pm and 7.30pm. She would play with other children at these gatherings and talk to them about the excellence of God. On one occasion, when she was seven or eight years of age, a male village council official infiltrated one of these gatherings and found her ‘telling another child about believing in God’. She was taken away to the village council.
·     During the twelve year period she lived with her aunt and attended these gatherings, she did not witness any baptisms of adults or children because a priest was rarely in attendance. She could only recall two occasions when a priest from another area attended one of these gatherings. Despite this, her aunt had led her to believe that she had been baptised as a five year old. It was only during a trip to China in 2009 that her aunt told her that she had not been baptised in the house church.
·     She recalled that when she was a child, she would ‘spread the gospel’ during some winter and summer holiday periods. She did this with her aunt at the nearby village of [Village 2]. She also did this with other house church children at nearby villages. On one occasion during her Year 9 summer holiday, she evangelised with her aunt during a trip to the province of Jiangxi and this became known to the local police in Fujian. Upon her return to [Village 1], the police arrested her and detained her for two days because she had been evangelising.
·     In April 2004, she returned to living with her parents because they were more financially secure and capable of raising her. She was [age] years old when she left her aunt’s house to live with her parents and younger brother. She continued to attend house church gatherings without her parents’ knowledge or consent. She told her parents that she would visit her aunt and they did not know that she was secretly attending house church gatherings.
·     In April 2006, she met [the second named applicant]. They began a relationship around Christmas 2006.
·     When she was [age] years old, she formed a close friendship with [Sister G], a Catholic woman who was ten years older than her. She first met [Sister G] at the house church gatherings when she was a seven year old child. [Sister G] would lead the house church gatherings. At the age of [age], she became close to [Sister G] ‘because she is a nice person and helped everyone a lot’. [Sister G] was supportive when she was ‘in a bad mood’.
·     Against her wishes, her parents arranged for her to marry [Mr Q]. A ‘bride price’ of 300,000RMB was paid to her parents. Her parents used that money to fund her first visit to Australia as a student. She never married [Mr Q] and her parents were upset with her because they had to refund the ‘bride price’ to her jilted fiancé.
·     She first left China for Australia [in] May 2008 when she was [age] years of age. Her parents sent her to Australia to study. [The second named applicant] first arrived in Australia [in] May 2008. Their relationship flourished in Australia.
·     After arriving in Australia, she made four return trips to China.
·     During her first return trip to China [between] April 2009 [and] May 2009, she lived with [Sister G] at her house in the [Village 3] area of Fuqing. During this one month period, she did not evangelise but did attend two or three house church gatherings.
·     During her second return trip to China [between] August 2010 [and] February 2011, she lived with [Sister G] at her house in the [Village 3] area of Fuqing. She was pregnant with [the second named applicant]’s child and gave birth to [Child A] on [date]. During this six month period, she did not evangelise and only attended weekly or fortnightly house church gatherings when [Sister G] hosted them at her house in [Village 3]. She feared going out in pubic because she was an unmarried pregnant woman who eventually had a baby out of wedlock.   When [Child A] was 10 days old, she took him to her parents’ home but their feelings of shame resulted in them denying her entry into their home and even refusing to hold their newborn grandson. She left [Child A] with [Sister G] who reared him in [the first named applicant]’s absence.
·     During her third return trip to China [between] December 2011 [and] February 2012, she lived with [Sister G] at her house in the [Village 3] area of Fuqing. During this two month period, she did not evangelise but attended weekly or fortnightly house church gatherings.
·     [In] May 2012, she married [the second named applicant] at a civil ceremony in Sydney.
·     In 2012, she began catechism study at her church in Australia.
·     During her fourth return trip to China [between] November 2012 [and] January 2013, she lived with [Sister G] at her house in the [Village 3] area of Fuqing. She told [Sister G], her aunt, her parents and [the second named applicant]’s mother that she had married [the second named applicant] in Australia [in] May 2012. [Sister G] and her aunt were pleased. However, her parents and [the second named applicant]’s mother did not welcome the news. [the second named applicant]’s mother was a divorced woman and had raised [the second named applicant] alone. She disliked [the first named applicant] because ‘she was a Catholic who had abducted her son’. During this two month period, she did not evangelise but attended weekly or fortnightly house church gatherings.
·     [In] March 2013, she and [the second named applicant] were baptised at [Church 1], [Suburb 2] in Sydney.
·     On [date], her son [the third named applicant] was born. He was baptised at [Church 1], [Suburb 2] in Sydney.
·     In February 2015, [Child A] moved from [Sister G]’s house in [Village 3] to [the second named applicant]’s mother’s house. He was [age] years old at the time. He has been living with his paternal grandmother since.
·     [In] August 2018, she and [the second named applicant] were married in a Catholic wedding ceremony at [a named] Chapel, [location] in [Suburb 3], Sydney.
·     In 2019, [Sister G] was arrested by the police at a house church gathering. She was detained and then died. The police cremated her body.
·     In early 2023, [the third named applicant] commenced Grade [level] at [School 2] in [Suburb 4], Sydney. He had previously attended a local pre-school and primary school that was not aligned with the Catholic church.
Catholic faith practice, evangelism and adverse experiences in China

The Tribunal has significant concerns about the veracity of the applicant’s claims and evidence in relation to aspects of her claims relating to her evangelism, adverse experiences in China, the nature and frequency of house church attendance in China and her relationship with [Sister G]. The Tribunal finds these claims to be largely inconsistent, incoherent, implausible, vague in key respects and contrived to bolster her protection claims. The Tribunal does not accept most of the explanations given by the applicant for the contradictions, inconsistencies and omissions in her evidence as it relates to these claims.
In relation to her claims of evangelism, the applicant was unable to detail the nature and extent of her evangelical activities beyond merely stating that she would ‘spread the gospel’ by speaking with others. When the Tribunal put to the applicant that her evidence in relation to the evangelical activities she undertook with her aunt and other children during school holidays was vague and lacking in detail, the applicant acknowledged the Tribunal’s doubts but insisted that she had undertaken these activities. Furthermore, the applicant was unable to offer any explanation as to why she had been unable to provide any corroborative documentary or witness evidence to the Department or the Tribunal in relation to these activities.
The Tribunal also rejects the applicant’s claims that she was harmed as a result of her evangelism in China when she was a seven or eight year old child. The Tribunal does not accept that the applicant was removed from a house church gathering by a village council official because she had been found ‘telling another child about believing in God’. The applicant’s testimony at hearing in this regard was vague, lacking in detail, hesitating and brief. She was unable to offer any explanation as to why only she had been punished in this manner or detail what had happened to her after she had been taken to the village council by this official.
The Tribunal also does not accept that the applicant evangelised with her aunt in Jiangxi Province whilst on holiday when she was a teenager. At hearing, the Tribunal raised its concern that it was implausible her aunt would evangelise with her as a teenager when in paragraph 4 of her original statement she indicated that when she was a teenager her aunt forbade her from attending house church gatherings so as to avoid the risk of arrest. The applicant was unable to reconcile her evidence in relation to why her aunt would expose her to such risky endeavours in the form of public proselytisation when she was unprepared to expose her to less risky activities in the form of private house church attendance. Furthermore, the Tribunal found the applicant’s evidence at hearing in relation to this incident to be illogical and highly implausible. Asked at hearing about this particular holiday to another province, the applicant told the Tribunal that the purpose of the trip was for her aunt to re-unite with her husband who was in Jiangxi at the time. Her aunt had taken her along and they had no intention of evangelising when they left Fujian but after they arrived they ‘eventually ended up evangelising’ because it was habitual for them to do so. Asked to explain the nature of the evangelical activities, the applicant stated that she handed out materials relating to Catholicism. After repeated inquiries in relation to the nature of those materials, the applicant briefly replied that she had handed out pamphlets but was unable to detail any information about what was contained in those pamphlets. Asked to explain where she and her aunt had obtained these pamphlets while on holiday, the applicant explained that she had carried them in her bag from Fujian because she was a Catholic who was always carting evangelical materials in her bag. The Tribunal put to the applicant that her own evidence at hearing appeared to be illogical as she had earlier stated she and her aunt had no intention of evangelising when they left Fujian so it was difficult to accept that she had packed pamphlets in her bag before her departure. The applicant insisted that she was a Catholic who carried these pamphlets with her when travelling in the event that she wished to evangelise. The Tribunal has considered the applicant’s evidence overall in relation to this claimed incident and finds it to be vague, inconsistent and implausible. The Tribunal finds that the applicant did not evangelise in China and was not harmed as a result.
The Tribunal finds that the applicant did not evangelise or proselytise in China and has fabricated these incidents in order to embellish her claims for protection.
In relation to the various claimed adverse experiences in China, the Tribunal fids that the applicant had fabricated these in order to bolster her protection claims. The presentation of these claims at hearing involved numerous omissions, implausible contentions and lacked significant details.
In her original statement, the applicant stated she received threats from the government while at school that she would be sent to a labour re-education camp if she attended underground church activities. Asked at hearing to detail these threats, the applicant told the Tribunal that when she was 17 years old the police had warned her not to speak about or promote ‘nonsense’ any more. She was unable to provide any further detail about these warnings from the police and no testimony was given in relation to the grave consequences she had earlier described in her written claims by way of forced re-education through labour. Taking into account the above findings in relation to the applicant’s tendency to embellish her claims, the Tribunal finds that the applicant’s written claims in this regard were similarly embellished and is unpersuaded that these threats and warnings occurred.
Furthermore, the Tribunal does not accept the applicant’s evidence that her ‘name was taken down’ by the police during a house church police raid on her fourth return trip to China between in December 2012. This claim was specified in the applicant’s original statement but not raised by the applicant at either of the two hearings conducted by the first Tribunal. Asked to explain why this significant matter had not been raised by the applicant when she spoke directly with the first Tribunal, the applicant said she had tried to raise it but ‘they didn’t listen’. The Tribunal has listened to the first Tribunal hearings and reviewed the transcript of those hearings and has formed the view that the first Tribunal was at all times prepared to listen to the applicant’s evidence and provided the applicant with a reasonable opportunity to present all of her claims. Furthermore, the Federal Circuit Court did not find jurisdictional error on the part of the first Tribunal on the basis that it ‘didn’t listen’ to the applicant or had otherwise breached its obligation under s 425 of the Act. Nevertheless, this Tribunal gives no weight to this assessment given that problems with interpretation before the first Tribunal may have caused the applicant to feel that she was not being heard during those two hearings. Instead, this Tribunal has focussed it consideration upon why the applicant did not raise this incident at interview with the delegate. Asked to explain why this significant incident had not been raised with the delegate at interview, the applicant said that she did not know. The applicant’s failure to raise this incident with the delegate causes the Tribunal to doubt the veracity of this particular claim. The Tribunal’s doubts are underscored by the applicant’s evidence on this issue at hearing which was vague and lacking in detail. At hearing, she was unable to specify whether house church raid had occurred before or after Christmas in 2012. Given the significant impact that a raid before Christmas would have had upon the house church, particularly in terms of disrupting potential gatherings to mark Christmas Day while she was in China and would have been interested in preparing for and observing key events during the Christmas season, the Tribunal expected the applicant to have been more precise about when this incident occurred. Furthermore, the applicant was unable to provide any specific detail about the incident apart for the stating that the raid had occurred at [Sister G]’s home. Given the applicant’s failure to raise this incident with the delegate at interview and inability to provide a reasonable amount of detail about the incident at hearing beyond the vague information specified in her original statement, the Tribunal is unpersuaded that this incident occurred.
Finally, the Tribunal notes the applicant’s claims involving incidents of harm involving people from her house church which occurred in China while she was residing in Australia. In her original statement, the applicant claimed that before Easter 2013 the government had ‘sealed’ her church in China and prohibited people from ‘gathering’ there. In her declaration of 10 May 2023, the applicant added to this claim by stating that [Sister G] was arrested by the authorities when people appealed or complained to the authorities about this incident. However, at hearing the applicant did not specifically raise this incident in 2013 with the Tribunal despite having been given ample opportunity to do so. Instead, when asked to explain events that led to [Sister G]’s arrest in China, the applicant introduced a new claim that [Sister G] had died in gaol after she was arrested in 2019 when she complained to police about people being forbidden to attend house church activities. Concerned by the applicant’s failure to previously raise this with the Tribunal, particularly by way of her detailed declaration of 10 May 2013, the Tribunal sought to further explore this claim at hearing. After significant efforts to obtain detail from the applicant about this incident, the applicant gave a somewhat evolving and conflicting narrative. She initially stated that [Sister G] had died of an illness in jail. She later stated that she did not know the cause of [Sister G]’s death. In response to the Tribunal’s concern raised at hearing that her oral evidence in relation to this new claim was particularly vague and lacking in detail, the applicant stated:
[Sister R] from the church told me that [Sister G] went for an appeal and she was arrested and locked in gaol and then she died in gaol from illness.
After expressing its doubts about the existence of [Sister G] along with the circumstances surrounding her arrest and death, the Tribunal asked whether the applicant had any corroborative evidence to support this new claim. The applicant offered to obtain a written statement from [Sister R] but nothing in this regard has been provided to the Tribunal following the hearing.
At the conclusion of the hearing, the Tribunal raised its doubts about the veracity of the applicant’s claimed experiences in China given the distinct lack of any corroborative documentary evidence or witness testimony to support those claims, particularly in relation to:
·     her evangelism with her aunt and other school children;
·     the events surrounding the intimidation and harassment she experienced in China;
·     her relationship with [Sister G] and how she had cared for [Child A] before he commenced living with his paternal grandmother in February 2015;
·     the arrest and death of [Sister G].
The Tribunal impressed upon the applicant that it was difficult to accept these claims in the absence of any documentary evidence or witness testimony, including from her husband [the second named applicant], to support these key claims, or even any credible explanation of the difficulties in obtaining such evidence at an earlier stage. By way of response, the applicant acknowledged the Tribunal’s concern but explained that ‘unfortunately this is the facts’. The Tribunal is not satisfied by this response, particularly given that [the second named applicant] has not attended any of the hearings before the first Tribunal or this Tribunal to give evidence. The Tribunal expects that [the second named applicant] would have been able to corroborate the claims in relation to [Child A]’s upbringing and [Sister G]’s involvement in the rearing of his child before his mother took on that responsibility herself. Furthermore, the Tribunal does not accept the applicant’s response as it would be reasonable in the circumstances for her to have provided some evidence relating to [Sister G]’s support of [Child A] and her residence with [Sister G] upon her return trips to China such as photographs, letters and other communications between the parties. Given the applicant’s evidence at interview that [Child A] was included in his paternal grandparents’ household registration, the Tribunal has formed the view that [Child A] lived with his paternal grandmother after he was born.
Having considered the evidence as a whole, particularly the detailed and free-flowing testimony of the applicant at hearing in relation to her family’s circumstances in China surrounding the birth of brother, the Tribunal is prepared to accept that:
·     [The first named applicant] lived with her aunt as claimed where she was first exposed to Catholicism;
·     [The first named applicant] attended underground church gatherings in China in the presence of her aunt as a child and on occasion during her return trips to China;
·     [The first named applicant] received some emotional support from other Catholics at these gatherings, including [Sister G].
However, the Tribunal does not accept that:
·     [The first named applicant] evangelised in China at any time;
·     [The first named applicant] attended any house church gatherings in China after her aunt forbade her from doing so when she was a teenager;
·     [The first named applicant] resided with [Sister G] during her return trips to China;
·     [Child A] lived with [Sister G] before he commenced living with his paternal grandmother in February 2015.
Departure from China without incident
The applicant told the Tribunal at hearing that she had departed China in May 2008, May 2009, February 2011, February 2012 and January 2013 without experiencing any difficulty at the airport upon departure. The Tribunal put to the applicant that, based upon country information,[19] this indicated she was of no interest to the Chinese authorities when she departed thereby raising doubts about the veracity of her claims regarding her claimed interactions with the police in China. The applicant insisted that she had told the Tribunal the facts. The Tribunal has considered that response but finds it difficult to reconcile with country information indicating that persons who had been involved in criminal or other matters warranting police attention would have come to the attention of airport officials when they attempted to depart China. The Tribunal is of the view that the applicant’s departure from China on multiple occasions without incident, after she claimed to have experienced various difficulties with the police in China, supports its findings above that the applicant was not involved in any interactions with the police or other authorities in China as claimed.
Delayed lodgment of protection visa application
[19] DHA, Standard Q & A Report, China: 20190218152038 – Christianity in Fujian province – Airport departure process, pp 7–8.
At hearing, the Tribunal drew the applicant’s attention to her migration history and noted that she first arrived in Australia [in] May 2008 and made four return trips to China before lodging her protection visa application on 11 October 2013. The Tribunal observed that her record of return trips to China, along with a period of delay exceeding five years before lodging her protection visa application after her initial arrival in Australia, raised concerns about the credibility of her protection claims. The Tribunal invited the applicant to address these concerns and the applicant gave the following response:
In the past, the environment in China was not as bad as it is now and after [Sister G] was arrested and after I last saw my son in China, things became worse and worse and I got terrified.
The Tribunal also drew to the applicant’s attention that her decision to return to China [in] August 2010 to give birth to [Child A] in Fuqing, rather than in Australia, was difficult to reconcile with her claimed adverse experiences in China before that date. The Tribunal sought explanation as to why she would voluntarily go back to China to give birth as that would have exposed her, and possibly her newborn child, to the potential risk of harm. By way of response, [the first named applicant] made the following statement:
I did not know that the situation would turn so bad at that time, otherwise I wouldn’t have left my baby in that situation.
The Tribunal has considered these responses and finds it difficult to reconcile with the applicant’s claimed adverse experiences in China before she first departed in May 2008. Those incidents included harassment by local officials, police intimidation, arrest and ostracisation by her family members in China. The Tribunal finds that the delay in protection visa application lodgment and repeated return trips to China and choice to not enable [Child A] to commence his life in Australia supports its findings above that the applicant did not experience any harm, ostracisation or mistreatment in China.
Emergence of and commitment to Catholic faith practice in Australia
Given the above findings in relation to the applicant’s expression of her faith in China being restricted to house church attendance on a sporadic basis in circumstances where that attendance afforded her emotional and other support, the Tribunal now turns to its assessment of the applicant’s commitment to her Catholic faith practice since her arrival in Australia in May 2008.
The Tribunal notes the applicant’s claims that she first connected with her parish community at [Church 1] in October 2009. There is ample evidence from fellow parishioners supporting this claim. However, there is little evidence before the Tribunal to suggest that this attendance was driven by a desire to embrace Catholicism for the purposes of being recognised as a practising Catholic. There is also no evidence before the Tribunal that the applicant has evangelised, or supported evangelical activities of others, in Australia. Instead, the evidence suggests that the applicant initially connected with the parish community at [Church 1] for the purpose of deriving support and has had a staggered journey towards recognising and embracing the sacraments.
Asked to describe her activities at church when she first joined the congregation, the applicant told the Tribunal that she would try to attend church every week where she would listen to the sermon, sing songs, make offerings and attend mass. She explained the symbolic significance of the Eucharist. While the Tribunal accepts that the applicant has some understanding of the services at [Church 1], it is difficult to assess when this this knowledge was acquired. Nevertheless, the Tribunal accepts that the applicant has attempted to attend church in Australia on a weekly basis since October 2009.
After exploring the applicant’s faith-related activities in China and Australia at hearing, the following key events in her family’s spiritual life and personal faith journey as a Catholic emerged:
·     In 2009, her aunt told her that she had not been baptised in the underground church when she was a five year old
·     In October 2009, she became a part of the [Church 1] parish community and began attending services
·     On [date], she gave birth to her son [Child A] out of wedlock and he has not been baptised
·     [In] May 2012, she married [the second named applicant] at a civil marriage ceremony in Sydney
·     In 2012, she undertook catechism classes in preparation for her baptism
·     [In] March 2013, she and [the second named applicant] were baptised at [Church 1]
·     On [date], she gave birth to her son [the third named applicant] and he was baptised at [Church 1] [in] April 2014;
·     [In] August 2018, she and [the second named applicant] were married according to the rites of Holy Roman Catholic Church at [a named] Chapel, [Suburb 3].

At hearing, the Tribunal raised concerns that aspects of this timeline suggested that her adoption of the Catholic faith was a gradual process which indicated that she had embellished her claims in relation to her commitment as a practising and devout Catholic.
Asked to explain why it took her almost five years to get baptised in Australia after she learnt that she had not been baptised in China, the applicant explained that it took her ‘some time to adapt to life’ in Australia after she arrived. She claimed that before attending [Church 1] she ‘tried to go other churches but they were all English speaking’. She explained that she was pregnant in 2009 so ‘missed the due date for the application’ and that there were ‘no other availabilities’.
Asked to explain why she and [the second named applicant] had not arranged for [Child A] to be baptised in China, the applicant told the Tribunal that [Child A] ‘grew up with his grandmother’ and ‘she did not ‘have any religion’ and that [Child A] was ‘educated in China’. The Tribunal then raised a concern that this response appeared to be inconsistent with her earlier oral evidence at hearing that [Child A] was in the care of [Sister G] during the first four years of his life and there was ample opportunity for him to be baptised during those years. By way of response, the applicant replied that a priest was not available so [Child A] couldn’t be baptised. The Tribunal raised its doubts about the cogency of that response, to which the applicant replied that [Child A] was only several years old when [Sister G] was arrested so there was a limited opportunity to baptise him.
Asked to explain why she and [the second named applicant] elected to have a civil wedding ceremony in 2012 and only got married in the Catholic church in 2018, the applicant explained that they initially wanted a church wedding but the church ‘didn’t have any availability’ and that a friend referred them to a civil marriage celebrant. She further explained that she and [the second named applicant] ‘wanted an official document to prove our marriage’ and that she was ‘very excited and happy to hold a certificate to be married in Australia’ after the civil ceremony. The applicant said that ‘it took time’ to organise a church wedding and she already had a child so [the second named applicant] told her that they should have a certificate to prove they were married.
The Tribunal has considered the applicant’s explanations for the delays in the baptisms and matrimony of [the first named applicant] and [the second named applicant] and finds that their approach towards their Catholic faith lacks the level of commitment that would be reasonably expected from a person who fled persecution for reasons of their religion. Moreover, the explanations given for [Child A] not having been baptised support the Tribunal’s earlier findings that [Child A] was not raised by [Sister G] and has always lived with his paternal grandmother in China.
It is difficult, if not impossible and perhaps unnecessary for present purposes, to pinpoint a date by which the Tribunal is satisfied that the applicant became a genuine and committed Catholic. Each individual’s faith journey is unique. However, [the first named applicant]’s evidence at hearing leads the Tribunal to find that she initially attended house church gatherings and religious services in Australia as part of belonging, and seeking to belong, to a church community from which she derived, and could derive, support. That said, the Tribunal finds that [the first named applicant] began to genuinely embrace Catholicism after her baptism in 2013 and that her journey towards becoming a devout Catholic is ongoing. On that basis, the Tribunal accepts that the applicant is a Catholic, albeit not a devout Catholic.
Proposed nature and extent of religious practice and observance in China

100. Asked at hearing about the proposed nature and extent of her religious practice and observance if she returned to China, [the first named applicant] stated that she intended to resume attending house church gatherings in Fuqing, despite the government’s action in regulating and closing down such churches, and would evangelise. Asked to explain her proposed evangelical activities in China, [the first named applicant] said that she needed to save souls and would tell people about ‘the true Catholicism’ whenever and wherever she had the opportunity to do so.
101. As discussed with [the first named applicant] at hearing, the Department of Foreign Affairs and Trade (DFAT) noted in its most recent country information report[20] that the Chinese Government reports that there are 38 million Christians in China, while other sources estimate higher numbers. DFAT assesses that some underground Catholics loyal to the Vatican are able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is controlled by the Party or the Vatican, and so leaders are more likely than congregants to face government attention but the situation differs between places and communities throughout China. DFAT assesses Catholics, both underground and Chinese Patriotic Catholic Association (CPCA) members, are subject to low levels of societal discrimination. Notably, DFAT described the Fujian province as ‘a traditional stronghold for Catholicism and underground Catholicism in particular’. In a thematic report on the Fujian Province issued in December 2016,[21] DFAT observed that Asia Harvest estimated that in 2011 there were one million worshippers of Catholic-linked unregistered churches in Fujian. Generally speaking, DFAT’s in-country contacts suggest that local authorities in Fujian tolerate operations of unregistered churches that operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down or repressed by local authorities. Furthermore, DFAT indicated that only individuals engaging in ‘active and public proselytising’ would likely be exposed to harm such as harassment, raids and occasional violence.
[20] DFAT, Country Information Report – China, December 2021, paras 3.28, 3.38 and 3.40
[21] DFAT, Thematic Report on Fujian Province – China, 16 December 2016, paras 3.11 – 3.13
102. It was then explained to [the first named applicant] that the country information indicated the situation for practising religion in Fujian is generally more liberal than in many other parts of China.[22] While the country information indicates that religious control has tightened in recent years as it has all over the country, in Fujian it is coming from a more relaxed starting point. Country information indicates that although the restrictions being imposed by the Chinese Communist Party on religion are intensifying, the situation for most Christians has not really changed and the risk of them experiencing treatment that amounts to persecution due to their religion is very low.[23] Country information also indicates that people who attend smaller house churches and practice their faith are likely to be able to do this without interference from the authorities.
[22] See, eg, China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020-April 2022), Research Directorate, Immigration and Refugee Board of Canada, 10 May 2022, CHN200992.E; DFAT Report 3.34.
[23] In addition to the country information referred to above, see also UK Home Office Country Policy and Information Note China: Christians, November 2019.
103. The Tribunal then put to [the first named applicant] that if she, [the second named applicant] and [the third named applicant] would like to go to a house church or underground church where they could express themselves freely, and if the Tribunal accepted that this is what they would do, then it might find that they could do this and they would not face a real chance of serious harm. [The first named applicant] responded that if they were to return to China, they would live [the second named applicant]’s mother in Fuqing but they would only be allowed to attend patriotic churches and that house churches are no longer permitted without government approval. She insisted that she would evangelise even though she might be killed. She then told the Tribunal that ‘death is not the end, it is another start’.
104. The Tribunal accepts [the first named applicant]’s claim that she is a Catholic who, if she were to return to China, would be interested in continuing her faith practice in China at an underground church in Fuqing. While the Tribunal appreciates that underground churches have been closed by the authorities in some parts of China, the country information before the Tribunal clearly indicates that there is a large underground church network in Fujian which the provincial authorities have allowed to operate, albeit with some restrictions, for many years and there is no persuasive evidence to support the claim that this network has been eradicated, or will be eradicated in the foreseeable future. There is also no country information before the Tribunal to support [the first named applicant]’s assertion that all underground Catholics in Fujian are only permitted to attend patriotic churches. The Tribunal prefers the country information and finds that a real chance of serious harm, or real risk of significant harm, does not exist if she were to return to China and resume the practice of her faith in the house church.
105. Taking into account the available evidence and findings above, the Tribunal does not accept [the first named applicant]’s claim that she would evangelise or proselytise in public upon return to China. The Tribunal finds the applicant’s oral evidence on this issue to have been exaggerated and her stated intentions are inconsistent with the Tribunal’s findings in relation to her claims of having evangelised in the past. Furthermore, her faith journey, as analysed above, tends to suggest that she is not a devout a Catholic and there is no evidence indicating that she has brought others to join the Catholic church by way of her evangelism in the past. On that basis, while the Tribunal acknowledges and accepts that [the first named applicant] may seek to extol the virtues of her faith to others in a house church environment in China, the Tribunal does not accept that this amounts to active and public proselytising and that a real chance of serious harm, or real risk of significant harm, would arise in relation to that conduct.
Assessment of [the second named applicant]’s claims for protection
106. [The second named applicant] did not initially raise any protection claims of his own when the protection visa application was lodged in October 2013. However, [the first named applicant] stated at hearing that he now sought protection because he was a Catholic who would attend an underground church. She did not state that he would evangelise in China.
107. The Tribunal then raised a concern that it had very little evidence of [the second named applicant]’s faith practice in China or Australia. The Tribunal also noted that it did not have any written or oral evidence from [the second named applicant] in relation to his stated intentions to pursue his faith upon return to China and observed that he chose not to give evidence to the previous Tribunal and this Tribunal, despite having been invited to do so. Asked to give evidence about her husband’s Catholic faith practice and the harm that he fears if he were to return to China, [the first named applicant] replied:
When we met in China, he just learn about Catholicism. After we came to Australia, he got baptised along with me. I want to go back to China because I have child there, but my husband has fear he doesn’t want to.

108. The Tribunal has considered this response and notes that no reason was given for [the second named applicant]’s fear of return to China. The Tribunal notes other evidence at hearing that [the second named applicant] was not raised in a religious environment in China. Given the absence of evidence in relation [the second named applicant]’s evangelism and limited available evidence about the nature and degree of his commitment to Catholicism, the Tribunal is prepared to accept that he would accompany [the first named applicant] and [the third named applicant] to an underground church in China but would not evangelise. On that basis, taking into account the reasons above in relation to his wife’s intended house church attendance in China, the Tribunal also finds that a real chance of serious harm, or real risk of significant harm, does not exist if [the second named applicant] were to return to China and continue the practice of his faith in a house church.
Assessment of [the third named applicant]’ claims for protection
109. Taking into account the available evidence, the Tribunal accepts the following in relation to [the third named applicant]’ claims for protection:
·     He was born in Australia on [date] and is [age] years old.
·     He has never resided in China.
·     He speaks predominantly in English and has limited facility in Mandarin.
·     He regards Australia to be his home country.
·     He was baptised at [Church 1], [Suburb 2] in Sydney [in] April 2014.
·     He has been reared in a Catholic environment since birth and accompanies his mother when she has the opportunity to attend the weekly religious services at [Church 1].
·     He attended his parents’ Catholic wedding ceremony [in] August 2018, where he stood between them as they took their matrimonial vows before a priest at [a named] Chapel, [location], [Suburb 3] in Sydney.
·     In early 2023, he commenced Grade [level] at [School 2], [Suburb 4] in Sydney. He is currently receiving a religious education at primary school but previously attended a local pre-school and primary school that was not aligned with the Catholic church.
·     He is studying towards his first Holy Communion at [Church 1].
110. Asked at hearing on 24 May 2023 to articulate the harm [the third named applicant] would face if he were to reside with his parents in China, [the first named applicant] gave the following response:
He would be persecuted as well because he is a Catholic and talks about Catholicism every day. He has been living here for years. I don’t think he can survive if sent back to China.

111. Asked who would harm [the third named applicant], [the first named applicant] was unable to beyond stating that he would be harmed by ‘the Chinese government’. Asked how [the third named applicant] would be harmed, [the first named applicant] gave the following response:
Because [the third named applicant] has been living here for many years, he is thoroughly absorbed in the free and democratic environment in Australia. His thoughts are aligned with Australia. If you force him to convert or conceal his religion, it is simply not possible for him to do it. I can’t imagine how hard that would affect him and he’s enjoying here. I have discussed the matter with him as well – he would be extremely upset of he had to face that in China, he would ask ‘why can’t I practise Catholicism’.

112. Noting [the first named applicant]’s emotional difficulty in giving evidence on her son’s behalf as she contemplated his fate in China, the Tribunal raised with the representative that it appeared a claim was being presented that [the third named applicant] would face serious or significant harm for reason of his religion, or possibly his association with his parents who are Catholics. The Tribunal observed that it was not apparent on the available material exactly what type of harm [the third named applicant] would face and how the harm, as explained by [the first named applicant] at hearing, could arguably be characterised as serious harm or significant harm. The Tribunal then invited the representative to provide a legal submission addressing this issue supported by any evidence and relevant country information.
113. By way of response to that request, the declaration of 29 May 2023 was provided to the Tribunal by the representative. This document signed by [the first named applicant] and contained evidentiary material, legal argument and country information. The Tribunal has considered this document and notes that [the first named applicant], most likely under the guidance of her representative, erroneously conflated the behaviour modification and serious harm provisions in s 5J of the Act when seeking to explain the harm that [the third named applicant] would face in China. That said, the Tribunal understood [the first named applicant]’s contentions, at their highest, were that [the third named applicant] would suffer serious harm because he would be:
· denied the freedom to practise his religion in the manner to he has been accustomed to in Australia such that, in China, he would not be permitted go to church and attend a Catholic school;
· mandatorily imbued with the teaching of atheism, the doctrine of the Chinese Communist Party, and Xi Jinping thought at school in China.
114. At the hearing on 1 June 2023, the Tribunal revisited its line of inquiry with [the first named applicant] and was told that [the third named applicant] is a happy child who very much enjoys his life as a student at Catholic school. Asked to explain why she and [the second named applicant] had not enrolled [the third named applicant] in a Catholic school before he started attending Year [level] at [School 2] in [Suburb 4] in 2023, [the first named applicant] explained that ‘the public school was free of charge’. Asked to explain why she decided in late 2022 to transfer [the third named applicant] to a Catholic school, the applicant explained that ‘didn’t really have a reason’ but it had been a ‘sudden idea to transfer him’. While [the first named applicant] was unable to fully detail the features of the liturgical life at the school and faith experiences offered to students there, she gave compelling and persuasive evidence about how [the third named applicant] would come from school every day and excitedly tell her about classroom prayers and bible study. He also told his mother that he attributed his academic success to God helping him being able to answer question quickly and correctly in class. Of particular interest to the Tribunal was her evidence in relation to his sensitivity when teased and challenged by other children at school about his commitment to faith and unswerving belief in the presence of God.
115. At the conclusion of the hearing, the applicant told the Tribunal about [Child A]’s experiences in the Chinese education system where he had been taunted by other children and ostracised by teachers because he had been born a ‘black child’ and had Catholic parents. The applicant then stood and attempted to read out a letter she had written the previous evening as she thought about her son [Child A] in China. She became emotionally over-wrought and then agreed to allow the interpreter to read the contents of the letter into evidence. A translated copy of this letter was provided to the Tribunal on 2 June 2016. It read, in part, as follows:
I beg for you considering my case from the perspective of my older son, [Child A]. He is [age]-year old now and soon turn to [age]. From January 21103, he has not seen his mother for over ten years, and he has never met his father. He has suffered severe discrimination in this society and at school because he actually doesn’t have parents. Even though he has repeatedly told the children around him and his class mates that he has parents, he still has been mocked because his parents never turned up. They said that he must have been abandoned by his parents, and that his parents must have died or are outlaws. Otherwise, they wouldn’t have not visited him for over ten years. The teachers at school often cited him as the poster child of atheism. If there is indeed a God, then God would have helped him reunite with his parents a long time ago. The fact that he has not been able to reunite with his parents till today proves that God doesn’t exist.

Sometimes, I ask my older son [Child A] to have a video call with younger son [the third named applicant]. But there is a significant gap between them. On the one hand, there is a language barrier. [The third named applicant] specks very ill Chinese, though he could understand it. On the other hand, [the third named applicant] firmly believes in God and always encourages his brother to pray to God. However, [Child A] doesn’t believe in God. He always says, ‘If God can truly bless me, then bless me to see my parents’.

116. The Tribunal now turns to its consideration of the above claims and evidence as it related to [the third named applicant] against the following country information.
Country information
117. The Law of the People’s Republic of China on Protection of Minors, as revised in 2020, prohibits parents or guardians from allowing or abetting ‘minors to participate in religious cults or superstitious activities’.[24]
[24] ‘Law of the People's Republic of China on Protection of Minors - 2020 Revision', National People's Congress (China), 17 October 2020, Art. 17, 20230503091024
118. According to the Department of Home Affairs’ Country of Origin Information Services Section (COISS) research, the ban on religious education and practice for minors in China is derived from the Regulations on Religious Affairs (the Regulations) as revised in 2017 and effective from 1 February 2018. The Regulations do not appear to explicitly ban minors from religious activities,[25] however religious education and practice is heavily.[26] Sources cite the Regulations as the basis for the prohibition, which is implemented either through the state-sanctioned religious associations and/or local government bureaus. For example, according to the 2018 United States Department of State Report on International Religious Freedom for China:
[25] COISS conducted targeted keyword searches in the document relating to child/children, minor/s, under 18 years etc, ‘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
[26] ‘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
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.[27]
[27] 'International Religious Freedom Report 2018 - China (Including Hong Kong and Macau)', United States Department of State, 21 June 2019, p. 9, 20190624153309

119. Similarly, the most recent US Department of State Report for China outlines the following:
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.[28]
[28] '2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', United States Department of State, 15 May 2023, p. 14, 20230516091411

120. German-based Catholic non-government organisation (NGO), China-Zentrum reported in November 2021 about local government implementation of the Regulations in China. As far as is known, there is no legal basis in national legal norms for the increasing local bans on minors entering religious sites and attending religious courses. The Regulations do not contain any provisions on minors. In the meantime, however, provisions have been included in the local Regulations on Religious Affairs of five provinces, most recently in Yunnan Province.[29] The report cites Article 35 of the Regulations on Religious Affairs for Yunnan Province which purportedly states, ‘No organization and no individual may organize, induce or force minors to take part in religious activities,’ and notes that similar wording is found in regulations in the provinces of Qinghai (2021), Shanxi (2020), Hubei (2019) and Guizou (2019).[30] It is further stated in this report:
[29] 'News Update on Religion and Church in China September 10 - December 4, 2021', China Zentrum, 2022, pp. 3 – 4, 20230516103102
[30] The report provides links to the regulations which are not operational. However, they are links to the SARA website which is also not currently accessible. 'News Update on Religion and Church in China September 10 - December 4, 2021', China Zentrum, 2022, p. 4, 20230516103102
This means that, for the first time,[31] in legal norms on the provincial level, we see provisions that explicitly restrict the religious education of minors and give the authorities the opportunity to take action against the participation of children and young people in community religious life.[32]
[31] As also noted, with the exception of Xinjiang Province where the prohibition has been long-standing, 'News Update on Religion and Church in China September 10 - December 4, 2021', China Zentrum, 2022, p. 4, 20230516103102
[32] 'News Update on Religion and Church in China September 10 - December 4, 2021', China Zentrum, 2022, p. 4, 20230516103102

121. The China Aid ‘Annual Persecution Report’ for 2022 (China Aid Report) details the following cases in which children have been located by the authorities’ in house churches outside the province of Fujian:
Around 4 p.m. on August 17, police officers from Shilipu Police Station forcibly searched the homes of Pastor Lian Changnian, his son Pastor Lian Xuliang, church staff member Xing Aiping, church evangelist Fu Juan, Guo Jiuju, and Zhang Jun. Police even took a nine-year-old child to police station for interrogation, reportedly traumatizing the child with intimidation.[33]
[33] ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023, p. 23, 20230313122518
On August 19, at 10 p.m., a parenting event organized and attended by 70 Christians from Linfen Covenant House Church was suddenly raided by more than 100 police officers. Authorities escorted attendants away and confiscated their cell phones. Police released some of the children around 2 a.m., but kept all adults in detention.[34]
[34] ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023, p. 24, 20230313122518
On August 14, Beijing Zion Church’s subsidiary church in Mentougou district was raided during Sunday service. When Pastor Yang Jun was preaching at the pulpit, more than 10 agents from the Mentougou District Culture and Tourism Bureau, the community management office, and police officers suddenly broke into the church. They confiscated two computers and seized nine Christians and two children, including Pastor Yang Jun.[35]
[35] ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023, p. 26, 20230313122518
May 12, 2022, was the 14th anniversary of the Wenchuan earthquake. When several Christian families’ teenage children were studying in an Early Rain Covenant Church member’s house at around 10 am, suddenly police officers visited them and asked the teenagers to go home. A church member named Xiao Luobiao was taken to the local police station.[36]
[36] ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023, p. 37, 20230313122518

122. The China Aid Report does not specify any such instances involving children having recently occurred in Fujian. Nevertheless, there have been recently reported instances of minors in Fujian being banned from attending Christian camps, intimidated by police and government officials in kindergarten settings and excluded from attending patriotic churches.[37]
[37] ‘China:20210810100547 – Children – Church Attendance – Fujian’, Country of Origin Information Services Section, 3 September 2021, 20210903105806
123. 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 (original emphases in bold).[38]
[38] ‘China: Full Country Dossier ', Open Doors, 28 March 2023, pp. 50 – 51, 20230328154349

Analysis, reasons and findings
124. The Tribunal considers that the country information indicates that, as part of an intensifying crackdown on unregistered religious groups, the Chinese authorities are devoting increasing efforts towards preventing children from attending unregistered churches or engaging in religiously based educational activities, as well as – in some locations – seeking to prevent children from attending state-sanctioned churches. However, there is little evidence of that occurring in Fujian. That said, the situation of underground Catholics in Fujian province, which was previously considered to be a province that had applied regulations on religion more liberally than others, has deteriorated in recent years. As noted above, some underground churches in Fujian province have been shut down and members of underground churches have come under increasing pressure to join the Chinese Patriotic Catholic Association. It is in this increasingly restrictive context, that the likelihood and extent of any harm [the third named applicant] may face in Fujian should be viewed.
125. Based upon the above finding in relation to [the third named applicant]’ parents and the country information as it pertains to Fujian, the Tribunal is not prepared to accept that there is a real chance that [the third named applicant] and his parents would be harmed because of their house church attendance in Fujian.
126. However, based upon his mother’s compelling oral evidence at hearing in relation to her children’s beliefs and experiences, which the Tribunal accepts, the Tribunal finds that while [the third named applicant] is only [age] years old, he has sufficient agency to identify as a Catholic. His expression of faith may well be simplistic but the Tribunal is persuaded that his faith is genuinely held and expressed on a regular basis at his school, home and church in Australia. The Tribunal finds that [the third named applicant] is a genuine Catholic who freely expresses his faith and would similarly do so in China, particularly at home and in a school context.
127. Given the country information above in relation to the increasing restriction of religious expression in school settings across China, and the activity by local officials and teachers within schools to sinicize the student population, I find that there is a real chance that [the third named applicant] would be harmed by way of bullying, ostracisation and humiliating treatment by students, teachers and local officials for reason of his religion. I also find that the prospect of [the third named applicant] experiencing such harm is heightened by reason of him being a member of two particular social groups, namely:
·     children of Catholic parents; and
·     siblings of a ‘black child’ born in China to Catholic parents.
128. The Tribunal is satisfied that these reasons are the essential and significant reasons for the persecution and that the persecution involves systematic and discriminatory conduct.
129. In reaching the above findings, the Tribunal notes the types of harm described above are comparatively lesser forms of harm than those specified in s 91R. However, their cumulative effect is sufficiently serious to constitute persecution in this case. In assessing the seriousness of the harm in this case, the Tribunal has had particular regard to [the third named applicant]’ vulnerability as evinced by his limited understanding of Chinese language, culture, customs and the school education system in Fujian. Furthermore, as demonstrated by his mother’s oral evidence, [the third named applicant] lacks the emotional maturity and physical ability to withstand adverse attention and criticism from others about his beliefs. Taking into account those vulnerabilities, the psychological distress and physical injury that [the third named applicant] will likely face in the Chinese education system amounts to serious harm.
130. As set out in s 5(J)(3) of the Act, a person is taken not to have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country. However, as set out in s 5(J)(3)(c)(i), these reasonable steps do not include requiring a person to alter his or her religious beliefs or conceal them or cease to be involved in them or practise them. [The third named applicant], through the agency of his parents, has been baptised in the Catholic faith and, according to the tenets of that religion, became a Catholic at that time, has attended Catholic church in Australia on a regular basis and is undertaking his education at a Catholic school. He expresses his religious beliefs, albeit in a formative state, freely in the Australian school context. If [the third named applicant] were, through the agency of his parents, to take steps to cease to be involved in the practise of his faith and to forgo his religious expression this would be an impermissible modification of conduct.
131. The serious harm is feared from both state and non-state actors. Based upon the country information and available evidence in relation to the mistreatment of Catholic children in China, the Tribunal finds that the state encourages their persecution by non-state actors.
132. Taking into account the above country information, the Tribunal finds that the real chance of serious harm relates to all areas of China and relocation is not an option.
133. Based upon the above analysis, the Tribunal also finds that there are no effective protection measures available to [the third named applicant] in China.
Conclusion
134. For the reasons given above the Tribunal is satisfied that the third named applicant is a person in respect of whom Australia has protection obligations. Therefore, Luca satisfies the criterion set out in s 36(2)(a).
135. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are [the third named applicant]’ parents and are members of the same family unit as [the third named applicant] for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of [the third named applicant]’ application. It follows that [the first named applicant] and [the second named applicant] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
136. The Tribunal remits the matter for reconsideration with the following directions:
· that the third named applicant satisfies s 36(2)(a) of the Migration Act; and
· that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the third named applicant.
Peter Papadopoulos
Member

[2023] AATA 2888

9 June 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction