1833876 (Refugee)

[2024] AATA 970

1833876 (Refugee) [2024] AATA 970 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1833876

COUNTRY OF REFERENCE:                   China

MEMBER:Dr Greg Weeks

DATE:5 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 05 January 2024 at 5:13pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – religious practice in China – credibility concerns – internal consistencies – Bible knowledge – denomination of the churches attended – motivation to travel – ease in obtaining a passport – departed the country without difficulty – religious practice in Australia – committed member of the Local Church in Australia – religious practice if returned to China – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 1 November 2018 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is a [age]-year-old man who is a citizen of China. He was born in Fujian Province and resided at the same address in Long Tian Town, Fuqing from the month of his birth until leaving China.

3. The applicant obtained a visitor visa to enter Australia on 28 February 2017 and arrived in Sydney [in] March 2017.

4. The applicant applied for a protection visa on 3 May 2017. The Tribunal has been provided with a copy of the applicant’s application for a protection visa (PV application).

5. The applicant was previously married but has been divorced since 2013. He has a son who was born in [year] and is currently a university student living in a suburb of Sydney.

   Procedural history

6. The applicant attended an interview with the delegate on 26 October 2018.

7. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant’s claim to be a genuine follower of the Christian faith was credible and that he was not satisfied that the applicant would be at risk of harm if returned to China.

   Claims for protection

8. In an annexure to the PV application, the applicant claimed that:

   (a)he heard about the church and started attending when he was about ten years old;

   (b)he was very curious about the religion of the church;

   (c)he became interested in reading the Bible every week;

   (d)he followed other members of the church to go outside and spread the gospel;

   (e)the location in which the church met changed monthly and sometimes as often as weekly;

   (f)he had heard that government officials frequently inspected the church looking for illegal activity;

   (g)one day, he was told that a local official had stopped the church from meeting for a while, whereupon the applicant left the church;

   (h)after he no longer attended the church, the applicant continued to study the Bible by himself; and

   (i)in Australia, he started attending church and Bible study classes each week.

9. The applicant did not make a specific claim in the PV application about the persecution that he fears in the event that he is returned to China. He stated only that he seeks a protection visa to avoid the things which happened to his sisters and brothers in the church in China. The applicant did not provide any detail about the type of church that he attended in China.

10. The applicant added further detail to the claims set out above in his interview with the delegate. He claimed that:

    (a)he was first exposed to Christianity in [year], when he attended a gathering with a friend whose father was a church elder;

    (b)he was baptised in November of that year in a church;

    (c)on the evening of [date] May 1995, he attended a church gathering with a friend, saw police outside and was scared;

    (d)the applicant was arrested at that gathering by the police and detained for a week before being released;

    (e)after that incident, a church elder later told him that the government was cracking down on churches and that he was now only able to worship at home with three to four others;

    (f)the applicant stopped attending church in China at that time and did not attend a church again until he came to Australia;

    (g)the applicant practised his faith in “small gatherings” once a week until 2004, when an “elder” was arrested and sent to a mental hospital;

    (h)after that incident, the applicant stopped worshipping in small gatherings and practised his faith until he left China only by reading the Bible at home every Sunday; and

    (i)the applicant was not personally the object of adverse attention from the authorities due to his religion between 1995 and the time that he left China in 2017.

    Pre-hearing submissions

11. The Tribunal received five signed statements of support from people who know the applicant from church gatherings in Australia. The statements are written in Mandarin. English translations by a certified translator have been provided, along with documents proving the identity of each of the statements’ authors.

12. The statements each contain a submission that the author met the applicant at a church gathering. They each refer to the applicant’s fine personal qualities and religious devotion. They each suggest that the applicant is a devoted member of his congregation in Australia. I accept the truth of each of the authors’ statements in regard to those issues. None of the statements contains substantive evidence which goes beyond those issues.

    The hearing

13. The applicant appeared before the Tribunal on 11 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

14. The applicant was represented in relation to the review but his representative did not attend the hearing. The applicant was supported at the hearing by [Ms A]. The applicant gave evidence in the hearing that he had known [Ms A] when she had lived in a neighbouring village in China and they attended the same church. [Ms A] moved to Australia more than 20 years ago while the applicant was still living in China. Before he left China, the applicant approached [Ms A]’s father to obtain her contact details in Australia. [Ms A] collected him from the airport after his flight to Australia and he has lived in a room of the house in which [Ms A] lives with her husband and three daughters since his arrival in Australia.

15. [Ms A] elected not to be sworn as a witness and to give evidence to the Tribunal. She took no substantive part in the hearing except as a supporting presence. However, [Ms A] attempted to make a statement as I was formally closing the hearing. I told her that I would consider any statement she made in writing before the close of business on that day.

    Post-hearing submission

16. [Ms A] submitted an unwitnessed statement in the form of a statutory declaration. That statement relevantly says only that “our church is not allowed by the Chinese government” and that “as long as we, as Christians, continue to participate in these gatherings, we will certainly be apprehended by the government”. The statement does not give the name of the church and says nothing to strengthen the applicant’s claims, discussed below, that he and [Ms A] attend a Local Church in Australia or that he would attend a Local Church if returned to China. On that basis, I give [Ms A]’s statement minimal weight.

    CRITERIA FOR A PROTECTION VISA

17. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

18. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

19. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

20. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

21. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in this case is whether there is a real chance that the applicant will face persecution in China or a real risk that he will suffer significant harm if removed from Australia to China. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

    Credibility

24. I have significant concerns regarding the credibility of aspects of the applicant’s evidence. In reaching this view, I have had regard to:

    A.internal inconsistencies in the applicant’s evidence;

    B.inconsistencies between the applicant’s evidence about his religious practices and his level of knowledge about the Bible;

    C.the applicant’s vague evidence about the denomination of his churches in China and Australia; and

    D.inconsistencies between the applicant’s claim for protection and his evidence about his motivation to travel to Australia.

25. Taken cumulatively, these concerns cause me to conclude that aspects of the applicant’s evidence are not credible.

    A: Internal inconsistencies

26. The applicant’s evidence contained several internal inconsistencies. Three examples follow.

27. First, the delegate recorded in his reasons that the applicant claimed that he had been arrested and detained for a week in 1995 along with more than 20 others. That claim had not been included in the applicant’s PV application and the applicant did not repeat it before the Tribunal. Rather, he stated in the hearing that a friend had been arrested in 1995 but that the applicant was not present at the time and was only told about the incident later. The applicant also stated that, after his friend told him that police had attended the church, the applicant “ran away”. The applicant gave evidence before the Tribunal that he has never suffered harm in China due to his religion.

28. The applicant did not explain these inconsistencies in his account of what happened at the church and whether he had any contact with the police for attending the church, although those issues are central to the reason that the applicant stated he did not attend church after 1995. I do not find the applicant’s evidence about these issues to be credible. I do not accept the applicant’s claim that he saw police outside the church in 1995 and was scared. I do not accept the applicant’s claim that he was arrested or detained in 1995.

29. Secondly, the applicant’s PV application stated that he worked on [specified job] with a company in Nanping between 2012 and 2014, when he started his [business]. The applicant omitted that [specified job] from his evidence about his previous employment at the hearing, even when asked if he had told me about every job that he had held prior to coming to Australia. The applicant mentioned after this that he had visited Nanping as a tourist for a few days with a classmate from [School 1]. Towards the end of the hearing, I drew the omission of his [specified job] in Nanping to the applicant’s attention. He then explained that it was a program run by people related to him and that he had helped there for “a while”. This answer does not explain a two-year gap between the time that his PV application stated that he stopped working at the [first] company in 2012 and the commencement of his [business].

30. Thirdly, the applicant’s PV application form stated that he worked at the [first] company from 1998, when he finished his studies at [School 1], until 2012. During the hearing, the applicant gave evidence that he left the [first] company after six years because he was unhappy. This evidence varies significantly from the dates provided in the PV application. The applicant did not explain that variance when asked about his employment history in China.

31. I do not find the applicant’s evidence about his employment history in China to be credible. This evidence undermines the reliability of the applicant’s account of events in China and suggests that his evidence more generally is not reliable.   

    B: Bible knowledge

32. The applicant said that he was very interested in reading the Bible and stated, both in his interview with the delegate and before the Tribunal, that he does so regularly. The applicant gave evidence in the hearing that the father of the friend who first took him to church gave the applicant a Bible of his own two weeks after he first attended. This is inconsistent with the applicant’s statement, recorded in the delegate’s reasons, that he was only able to access pamphlets which included passages from the Bible while he lived in China.

33. In the hearing, the applicant claimed that he reads his Bible in Mandarin whenever he is free to do so and that he attends a Bible study group every Wednesday. He was asked his favourite story from the Bible and described the gospel story of the wedding at Cana. His explanation of why he liked that story was only that “God created miracles”. The applicant was given a further opportunity to talk about the Bible and about his religious beliefs more generally but did not make any further comment.

34. The delegate’s reasons record the applicant’s claim that, after he stopped attending church, he practised his religion by attending “small gatherings” once a week between 1995 and 2004. The applicant gave evidence in the Tribunal that these gatherings were of between five and eight close friends who gathered in somebody’s home to talk about the Bible. The applicant’s evidence that he practised his religion between 1995 and 2004 by regularly attending small gatherings to discuss the Bible is inconsistent with the extent of his knowledge and understanding of the Bible.

35. The applicant stated that, after he stopped attending these “small gatherings”, reading the Bible at home was his sole form of worship between 2004 and 2017.

36. The applicant’s evidence, in summary, is that he has read the Bible on a regular (most often weekly) basis since about 1995, that is for about 27 years. The applicant gave evidence that he attended primary school and middle school, after which he studied a course focused on [subject] for four years at [School 1]. He is an educated man who could reasonably be expected to have a relatively detailed knowledge of a book which he has read and discussed regularly over such a long period.

37. The applicant’s failure to provide more than the most basic detail of what is written in the Bible was a reason for the delegate not being satisfied that the applicant was a credible witness.

38. The applicant was invited in the hearing to discuss his religious beliefs. He did so only in very general terms and his responses did not indicate a knowledge or understanding of the Bible that is consistent with either the duration of time for which he claims to have been reading the Bible or the frequency with which he did so. While the applicant provided slightly more detail about the contents of the Bible in his evidence before the Tribunal than he had to the delegate, the level of his knowledge of, and capacity to discuss, the content of the Bible is inconsistent with having owned a Bible for many years, with having read the Bible on a regular (most often weekly) basis over the course of 27 years and with being a committed Christian whose only form of worship between 2004 and 2017 was to read the Bible.

39. I find that the applicant’s evidence with regard to the frequency with which he reads the Bible and the duration of time for which he has done so is not credible.

40. Because reading the Bible was the central feature of his religious practice between 1995 and 2017, my finding that the applicant’s claims about reading the Bible lack credibility leads to several consequential findings of fact. I do not accept the applicant’s claim that he read the Bible every week from the time that he started attending church. I do not accept that the applicant practised the Christian faith between 1995 and 2004 by regularly attending small gatherings to discuss the Bible. I do not accept that the applicant read the Bible regularly between 2004 and 2017. Given that he claims that reading the Bible was his sole form of worship during that period, I do not accept that the applicant practised the Christian faith between 2004 and 2017.

    C: Denomination of churches

41. The applicant’s evidence about the type or denomination of the churches he has attended was vague.

42. The applicant told the delegate that his religion was “Christian”, adding only that the pastor of the church he attended in China believes in Jesus. He also stated that, following his arrival in Australia, he had been attending a church in [Suburb 1] most weeks since April 2017. The applicant answered the delegate’s question about the denomination of that church only by saying that its members “believe in the Trinity”. When pressed as to whether the church was, for example, Protestant or Catholic, the applicant stated only that it was a Christian church.

1. The delegate’s findings appear to have been made on the understanding that the applicant was a member of a Protestant ‘house church’. The applicant gave evidence before the Tribunal that the [Suburb 1] church was in fact in rented premises “by the railway”. That evidence is consistent with the delegate’s understanding.

2. The applicant attended church in [Suburb 1] only in 2017 and 2018, after which gave evidence that he has most regularly attended a church in [Suburb 2]. The applicant was not forthcoming in the hearing about the denomination of those churches or the nature of their worship. When pressed, the applicant gave evidence that he is a member of the Local Church in Australia, whose congregants are sometimes referred to as “Shouters” in China.

3. The applicant had not claimed in the PV application, his interview with the delegate or in previous submissions to the Tribunal that he was a member of the Local Church in China. The applicant did not claim, and I do not accept, that he attended a church in China after 1995. He claimed at the hearing that he is a member of the Local Church in Australia and would attend a Local Church if returned to China. I will discuss that claim in detail below.

4. I asked the applicant to comment on the fact that he had not raised his membership of the Local Church prior to the hearing. The applicant responded that he had not heard the term “Shouter” before he arrived in Australia. He had previously given evidence during the hearing that he was aware that members of the Local Church are sometimes described in that way in China and that the reason for the term was that they “shout Jesus” during prayer. I do not accept that a person who was a member of the Local Church in China would not have been aware that the congregants of that church are sometimes described pejoratively as “Shouters”. The applicant’s omission of that claim in the PV application, his interview with the delegate and in previous submissions to the Tribunal reflects adversely on the credibility of his claim that he was a member of the Local Church in China. I do not accept that the applicant was a practising member of the Local Church prior to his arrival in Australia.

   D: Motivation to travel

5. The applicant’s evidence in the hearing clearly indicated that he left China for some reasons that were not related to his desire to practice his religion freely. Likewise, he indicated that his concerns now about returning to China are not all related to a fear of persecution.

6. The applicant gave evidence that he first obtained a passport in 2002 or 2003 in order to be ready to leave China “if my work didn’t turn out well”. When asked why he decided to obtain a passport to replace the one which had expired, the applicant responded that he wanted to leave because his [business] was losing money. Asked later in the hearing what made him want to come to Australia, the applicant’s first response was that his [business] was not going well. The applicant gave evidence that, when he was about to leave China, he told his son “I will go first to make some money” and expected that his son would come to Australia later. Asked how he felt about leaving China, the applicant replied that he felt that life in Australia suits him more than his life in China had done. Asked why he didn’t want to go back to China, the applicant said that he loves living here and that we have good air.

7. I asked the applicant to respond to my concern that his statements indicated that his purpose in coming to Australia was to make money rather than to avoid persecution. He responded that making money was part of the reason that he came to Australia but the most important issue, which he couldn’t tell his son, was to avoid persecution.

8. As I have noted above, the applicant’s evidence does not suggest that he has ever suffered harm due to his religion. The tenor of the applicant’s evidence is that he prefers life in Australia to the life he had in China. The reasons given for that preference captured in the evidence recorded above do not relate to the applicant having suffered persecution for his religion in China or from a fear that he would suffer such persecution if returned. On the evidence before the Tribunal, the dominant reasons for the applicant coming to Australia were to make money and to improve on the lifestyle that he had had in China. I find that the applicant’s claim to have come to Australia to escape persecution is not credible. I do not accept that the applicant came to Australia to avoid persecution.

   Religious practice

   The applicant’s religious practice in China

9. I accept that the applicant began to attend church in 1994. While the PV application stated that the applicant first “got to know the people to attend the Church” at about the age of ten, which would have been in [year] or [year], his evidence at the hearing indicates that the applicant must have been no younger than [age] when he was first introduced to the church by a school friend. These two claims, made at different times, appear to give inconsistent accounts of when the applicant first attended church. To that extent, they cannot both be accepted. The evidence before the Tribunal is more consistent with the applicant being introduced to the church by a friend in 1994. The statement in the PV application may have intended to convey, and I would accept, that the applicant first “got to know the people who attend the Church” at about the age of ten but did not himself start attending church at that time. I do not accept that he started attending church when he was about ten years old.

10. I accept that the applicant attended a church in China in 1994 and 1995 and that he was baptised at about that time. I accept that he was curious about religion and interested in the church. The applicant gave evidence to the Tribunal that he stopped attending church in 1996, rather than in 1995 as he stated in his interview with the delegate. The difference between attending church until 1995 or 1996 makes no substantive difference to the applicant’s case. I accept that he stopped attending church in 1995 or 1996. 

11. Country information from DFAT indicates that persecution of Chinese Christians tends to be isolated to those who do not practice a ‘correct’ version of Christianity, which emphasises principles like patriotism, party leadership and loyalty to the Chinese Communist Party (CCP). Protestant churches registered with the Three-Self Patriotic Movement (TSPM) operate with the sanction of the state. One of the principles of the TSPM is to remove Western influences from the practice of Protestantism in China,[1] but many unregistered churches choose in practice to operate with the same restrictions as those aligned to the TSPM.

    [1] Elena Vishnevskaya, “The People’s Republic of China and Christianity: A Brief Introduction” (2022) 27(3) Education About Asia 28, 28.

12. Most Protestants in China worship in unofficial ‘house churches’. These vary in size; the larger a gathering which is not registered with the TSPM, the greater the risk of official reprisals. The applicant claimed in the PV application that the location of the church meetings that he attended in 1994 and 1995 changed on a regular basis, sometimes as often as weekly. The applicant gave evidence before the Tribunal that the church he attended was shut down “for a while” by the authorities because it was not registered. This information is consistent with country information about the long-term suppression of ‘house churches’ in China.[2] I accept that the applicant attended a church that was not registered with the TSPM. I accept that the applicant heard that government officials frequently inspected the church which he attended in 1994 and 1995 looking for illegal activity.

    [2] See eg: DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.33]; Amnesty International, ‘Submission to the UN Committee on Economic, Social and Cultural Rights: 73rd Session’, ASA 17/6357/2023 (17 January 2023), p 5; Human Rights Watch, ‘World Report 2023’ (12 January 2023), p 153.

13. Christians who link their faith to politically sensitive subjects are at higher risk than those who do not. Small groups may be able to meet privately for religious discussions, including because they are less likely to be seen as a threat to the state. Many unregistered churches seek to present themselves as constituting no ideological, security or collective action threat to the state.[3] Most Protestant pastors, whether aligned to the TSPM or from an unregistered church, “stay away from issues that might suggest frustration with [CCP] rule or divided loyalties” and limit the interaction of their church with foreign influences.[4] The failure to register with the TSPM may consequently do little to increase the risk of persecution to members of unregistered churches, especially where the church pursues no political agenda, although this cannot be guaranteed.[5] The applicant gave evidence at the hearing, and I accept, that the pastor at the church he attended preached only about religion and did not address political issues.

    [3] Sarah Lee, “Pastors in China’s New Era” (2023) 25(1) China Source Quarterly 16, 17.

    [4] Sarah Lee, “Pastors in China’s New Era” (2023) 25(1) China Source Quarterly 16, 17-18.

    [5] Sarah Lee, “Pastors in China’s New Era” (2023) 25(1) China Source Quarterly 16, 19.

14. Country information advises that China has regulations in force which prohibit proselytising and that these are generally enforced across the country.[6] In his PV application, the applicant claimed that, from the start of his involvement with the church in China, he “followed the people to go outside to spread the gospel”. The applicant said during the hearing that he had given out “gospel pamphlets” when he lived in China but had never attracted official attention for doing so. This is consistent with the applicant’s ease in obtaining a passport on two separate occasions and leaving the country without difficulty. Both of those things would be difficult to do if he were a person of adverse interest to the Chinese authorities.[7] I asked the applicant to comment on country information to that effect but he did not do so directly. I accept that the applicant proselytised by giving out “gospel pamphlets” in or about 1994 and 1995. I do not accept that he did so between that time and his departure from China.

    [6] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.26].

    [7] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [5.35]-[5.42].

15. Country information from DFAT states that the Local Church has its origins in the Protestant Church and that congregations of “Shouters” may in practice be indistinguishable from some other small Protestant groups.[8] Whether or not a particular church group sees itself as belonging to the Local Church does not govern how that group is seen by the Chinese authorities. Identification as a “Shouter”, regardless of which church the person so identified belongs to, may lead to adverse official attention, which may include imprisonment.[9]

    [8] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.74].

    [9] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.74].

16. The applicant gave evidence that he did not experience adverse official attention in China as a result of his religious practices. Given the country information about China’s restrictions on proselytising and the fact that doing so may cause a person to be identified as a “Shouter”, I do not accept that the applicant was identified a member of a church identified by the authorities as a “Shouter” church during the time that he gave out “gospel pamphlets” in or about 1994 and 1995.

17. The findings above do not rule out the possibility that, although the applicant’s religion exposed him to no adverse official attention in China between 1995 and 2107, he nonetheless feared persecution. His evidence to the Tribunal was that he modified his behaviour for more than 20 years by taking significant pains to avoid official attention being paid to his religion. I have rejected the applicant’s claim that he saw police outside the church in 1995 and was scared by having seen them. It does not follow that the applicant was not scared more generally of adverse official attention as the result of his religious beliefs and modified his behaviour as a result.

18. The applicant’s disengagement from religious congregation in China, at least between 2004 and 2017, neither leads to the conclusion that he is not now a committed member of a Christian church nor indicates that he would again disengage from practising his religion openly if returned to China.

    The applicant’s religious practice in Australia

19. Having taken into account the applicant’s evidence at the hearing and the corroborative statements of support made in writing on his behalf, I accept that the applicant is a member of a church in Australia, that he has attended church consistently since arriving in Australia in 2017 and that he identifies himself as a Christian. I accept that the applicant attends Bible study classes organised by his church in Australia each week.

20. Although he was not initially forthcoming about the denomination of the church he attends in Australia, I accept that the applicant attends a Local Church and that he has done so since shortly after his arrival in Australia. It is significant that, in a country where he is free to express his religious beliefs, the applicant has demonstrated a consistent commitment to doing so as part of a Local Church congregation. I accept that the applicant is a committed member of the Local Church in Australia.

21. When asked in the hearing if he still spreads the gospel in the community, the applicant stated that he and five or six of his brothers and sisters from his Australian congregation do so every week. Further inquiries on this issue revealed that the applicant and his fellow congregants do this by attending other churches or by speaking about the benefits of their religion in their own church. Extensive questioning on this issue did not lead the applicant to claim that he proselytises in Australia by spreading information about his faith to members of the general public but only within his own church or other like-minded churches. I accept that the applicant discusses his faith with others on a regular basis.

22. A key element of the definition of “proselytise” is the act of converting a person or people to a religious faith.[10] I do not accept that the applicant proselytises by preaching the gospel or handing out gospel material to strangers in public in Australia in an attempt to convert them.

    The applicant’s religious practice if returned to China

    [10] L Brown (ed), The New Shorter Oxford English Dictionary (1993), p 2384.

23. Neither the applicant’s avoidance of adverse official attention in China between 1995 and 2017 nor the fact that he does not attempt to convert members of the general public to his religion in Australia determines that he would not practice his religion openly if returned to China.

24. The applicant gave evidence in the hearing that, if he is returned to China, he would continue to attend a Local Church. I accept that claim.

25. The applicant gave evidence that he would spread the gospel in China by telling people the benefits of believing in Jesus. I accept that, even if the applicant does not do exactly as he claims, that he will at least continue to discuss his beliefs with others as he has done in Australia. In either case, there is a real chance that the applicant could come to the attention of the authorities.

26. The applicant stated that he would hand out pamphlets about his religion in the street and would do so despite the expectation that he would be arrested. Again, I accept that, even if the applicant does not do exactly as he claims, that he will at least continue to discuss his beliefs with others as he has done in Australia. In either case, there is a real chance that the applicant could come to the attention of the authorities.

27. Country information from DFAT states that being identified by the authorities as a “Shouter” depends less on self-identification than, for example, on whether a person attempts to proselytise. The country information does not provide certainty about the extent to which the Local Church is actively pursued by the Chinese authorities[11] but notes that “Shouters” may still attract adverse government attention which could result in imprisonment. A member of the Local Church in China would face a high risk of attracting adverse official attention if he or she attempted to proselytise in this way or if their church was otherwise identified as a “Shouter” church by the authorities.[12]

    [11] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.72].

    [12] DFAT, ‘Country Information Report: People’s Republic of China’ (22 December 2021), [3.74].

28. If the applicant returns to China, I have found that he would engage in proselytisation and that he will attend a Local Church. This conduct would likely cause him to be identified as a “Shouter” by the authorities. Consequently, there is a real chance that the applicant will suffer persecution in the reasonably foreseeable future if he is returned to China.

    Conclusions

29. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

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

    Dr Greg Weeks
    Member