1835168 (REFUGEE)

[2024] ARTA 166

1835168 (REFUGEE) [2024] ARTA 166 (29 OCTOBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  1835168

Tribunal:General Member M Tubridy

Date:29 October 2024

Place:Sydney

Decision:The Tribunal affirms the decisions under review.

Statement made on 29 October 2024 at 2:39pm

CATCHWORDS

REFUGEE – Protection Visa – China – religion – Christianity – applicants might face some occasional low level societal discrimination – feared harm from creditors – fear of persecution is not well-founded – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Migration Act 1958, ss 5, 46, 65, 499

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 November 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants lodged their application for review (of the delegate’s decision) on 30 November 2018 with the Administrative Appeals Tribunal (AAT). On 14 October 2024,

   
   

   the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   Background

3. The applicants present as a family consisting of a wife and husband (Ms YC & Mr YZ), and their two adult children (Ms SZ & Mr XZ) who are citizens of China from Fujian Province. On 24 March 2017 they lodged an application with Australia’s Embassy in China for a temporary work visa with Mr YZ as the primary applicant, and with his wife Ms YC and his two children Ms SZ and Mr XZ (who at that time were [age] and [age] years of age respectively) as dependant applicants. This was granted on 27 March 2017, and on [date] April 2017 the applicants departed China and on [date] April 2017 they entered Australia. On 17 April 2018, they lodged their protection visa application. In this they claimed to be citizens of China who whose religion was Christianity. Written protection claims (the April 2018 written claims) were made by Ms YC, and it has largely been Ms YC who has subsequently been the member of the family who has advanced the family’s protection claims.

4. In summary, the applicants claim to have experienced persecution from China’s authorities for reason of their Christian religion, and to fear further such persecution were they to return to China. In particular, it is submitted that the Chinese authorities: prevented them from engaging in Christian worship; and also: from operating their family business and/or in obtaining a loan from a bank. It is also claimed that the financial difficulties caused by this treatment resulted in their becoming indebted to persons who have verbally assaulted and harassed them and have threatened the entire family with harm if the money is not repaid.

5. On 16 November 2018 the delegate refused to grant the applicants protection visas. The delegate did not accept that Ms YC had any financial issues in China, as the delegate considered that at the November 2018 interview Ms YC had been unable to explain how being Christian had affected her financial situation in China. The delegate did not accept that Ms YC had experienced any other kind of adversity for reason of Christianity (such as from Chinese government authorities), as the delegate considered that Ms YC’s evidence about this at the November 2018 interview was vague and incoherent. The delegate did not accept that Ms YC was a genuine Christian, as the delegate considered that Ms YC’s evidence at the November 2018 interview (about why she had become a Christian, and her engagement with Christianity, and her interest in the Bible) was not persuasive and did not demonstrate that she had a personal connection with the faith.

6. On 30 November 2018 the applicants lodged their application for review with the AAT; attaching a copy of the Department’s refusal notification and the delegate’s reasons for refusing to grant the visas. The Tribunal replied that same day with an acknowledgement of this. In doing so the Tribunal advised the applicants to send the Tribunal, as soon as they could, any: material not yet provided which they believed would support their application; and: a statement setting out why they disagreed with the Department’s decision. No information of this kind was received in response to this request. On 20 June 2023 the Tribunal wrote to the applicants and advised them that their case was being prepared to be given to a Tribunal Member. They were asked to complete a pre-hearing information form and to return this within seven days. A response was received that same day in which
   Ms YC indicated that she was willing to attend a hearing. In response to the form’s invitation to provide more information about their protection claims, it was stated: as stated on my protection visa application.

7. On 24 October 2023 the Tribunal wrote to the applicants and advised them that it had considered the material before it but was unable to make a favourable decision on this information alone, and they were invited to appear before the Tribunal on 20 November 2023 to give evidence and present arguments relating to the issues arising in their case. On
   25 October 2023 the Tribunal received a response (signed by Ms YC on behalf of, and with the consent, of all the applicants) in which it was indicated that Ms YC would attend the hearing but the other applicants would not. It was indicated that they would not be relying on any documents at the hearing (and so would not be providing the Tribunal with any supporting documents before the hearing).

8. On 20 November 2023 Ms YC and also Ms SZ appeared before the Tribunal at a hearing. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. It was indicated that Ms YC intended to present their case, with Ms SZ attending to provide her mother with support. This noted, later in the hearing I invited Ms SZ if she would like to be heard and she also presented some evidence and arguments relating to some of the issues arising in their case; and this included her submitting that she was concerned by the lack of tolerance toward Christians in China, and that in China she had been mocked by school mates because she was a Christian. But for the most part, the applicants’ case was presented by Ms YC who claimed that their primary concerns were that they would be unable to practise their Christian faith, and that they would be harmed by persons to whom money was owed. Ms YC also presented a number of documents to the Tribunal at the hearing which until that time had not been provided to either the Department or the Tribunal, and several of which were in Chinese and not accompanied by a translation. Copies were taken of these, and I invited Ms YC to read these documents aloud in Chinese (and which the interpreter then conveyed in English) and to then explain the content of these, and their relevance. I also advised Ms YC that if she wished to rely on documents which were not in English, she should endeavour to provide the Tribunal with English translations for these, as without this it might be difficult for the Tribunal to properly assess and give weight to any such documents as evidence in support of her claims. The applicants did not subsequently provide the Tribunal with translations of these documents.

9. During the hearing the Tribunal put it to Ms YC that it had doubts about her claims in certain regards, and that she should endeavour to provide further documentary evidence in these respects. Ms YC asked whether she should provide such additional evidence to the Tribunal directly. I explained that she could, and that she could also do this via her authorised recipient Mr CL. Ms YC said that currently her email was being managed by her daughter, Ms SZ, and that she was not sure whether Mr CL was continuing to act as their agent. I explained that Mr CL had been their representative, but he had recently had his practising certificate suspended by the NSW Law Society and was now unable to represent people in migration matters, but he could act as their authorised recipient. I explained that on
   30 October 2023 the Tribunal had sent her and the other applicants an email explaining the situation, and this had been sent both via Mr CL and also to the applicants’ own email address which they had provided to the Tribunal (and which Ms SZ confirmed at hearing was her email address). Ms YC said Mr CL had spoken to her not long ago, and he had asked her about authorising him to receive correspondence (and I note that on 30 and 31 October 2023 the Tribunal received emails from Mr CL, to which Ms SZ was copied, which attached written notification signed by Ms YC in which she withdrew Mr CL as the applicants’ representative but retained him as their authorised recipient) but that she was unaware that Mr CL had been suspended. I advised Ms YC to read the Tribunal’s email about this, and to consider whether she wanted Mr CL to continue to receive correspondence on their behalf, or whether they wished to receive this directly.

10. Immediately following the 20 November 2023 hearing Ms SZ emailed the Tribunal as follows: I will send my evidence or other any information to you directly, rather than through an agent. But no indication was given that the applicants wished to cease employing Mr CL as their authorised recipient and no further information was ever provided to the Tribunal received from Ms SZ’s email address. Instead, all subsequent submissions made by the applicants to the Tribunal were sent via Mr CL; with the next of these being received on
    28 November 2023 when Mr CL forwarded the Tribunal various documents which during the hearing of 20 November 2023 Ms YC had indicated she would seek to provide (these being photographs of her church attendance in Australia, and a further letter from the church the applicants had attended in Australia, with the latter being dated 28 November 2023). I note also that although after they lodged their review application on 30 November 2018 the applicants provided no further evidence of their claims until the 20 November 2023 hearing, it was nonetheless the case that during these intervening years Mr CL contacted the Tribunal on the applicants’ behalf on several occasions to seek a letter from the Tribunal (which confirmed that the applicants had a matter under review at the AAT) to enable the applicants to access Australia’s Medicare healthcare insurance scheme. Given all this, I consider that email communication between the applicants and the Tribunal has been facilitated by Mr CL continuously from the time the applicants lodged their application for review on 30 November 2018.

11. On 14 December 2023 I wrote to the applicants about some of the concerns I had with regard to the evidence before me, and I invited them to respond in writing by 28 December 2023. This invitation was emailed to the applicants via their authorised recipient Mr CL. On 26 December 2023 the Tribunal received an email from Mr CL in which he conveyed that
    Ms YC was seeking an extension of time, until 11 January 2024, to respond to the Tribunal’s invitation of 14 December 2023. On 4 January 2024 the Tribunal advised the applicants in writing (in an email sent to both their authorised recipient Mr CL, and also to the email of Ms SZ) that Ms YC’s request for additional time (to respond to the Tribunal’s letter of 14 January 2024) was agreed to, and that any information which they provided before a decision was made would be considered, but that after 11 January 2024 the Tribunal may make a decision at any time. On 7 January 2024 the Tribunal received an email from Mr CL (copied to Ms SZ) which provided a written response to the Tribunal’s 14 December 2023 invitation which was dated 6 January 2024 and signed by Ms YC. To date, nothing further has been provided by the applicants. I consider that the applicants have had a fair opportunity to put their case, and I have proceeded to a decision.

12. I have before me and I have had regard to: the applicants’ 24 March 2017 application for a temporary work visa (along with its supporting documents and associated correspondence); also: the applicants’ 10 April 2018 protection visa application (along with its supporting identity and residential documents and associated correspondence) and in which protection claims were submitted on behalf of the family in writing by Ms YC; also: an audio recording of Ms YC’s subsequent 9 November 2018 interview with the delegate; and: a copy of the delegate’s reasons for refusing to grant the applicants protection visas on 16 November 2018. I have before me and I have had regard to: the applicants’ 30 November 2018 application to the AAT (now the ART) for review of the delegate’s 30 November 2018 decision to refuse to grant the applicant protection visas; also: all subsequent correspondence between the Tribunal and the applicants (both via their authorised recipient and directly from an email address managed on behalf of the applicants by Ms SZ) and also: the evidence and arguments given and presented by Ms YC, and also by Ms SZ, when they appeared before the Tribunal at a hearing held on 20 November 2023 (including the documents which were submitted by Ms YC at the 20 November 2023 hearing); and notably also: the further documentary evidence provided to the Tribunal on 28 November 2023; and also: Ms YC’s 6 January 2024 written response to the concerns which the Tribunal put to the applicants in writing on 14 December 2023, and which also amounted to a summary of the claims and evidence before the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for protection visa

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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.

    REASONS AND FINDINGS

    Receiving country

19. The applicants claim to be a citizens of China, and I note that the Nationality Law of the People’s Republic of China 1980 (Article 4) provides that: Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.[1] The applicants all present as having been born in China to parents who were both Chinese nationals. The applicants have provided copies of the biodata pages of their respective passports, issued People’s Republic of China (PRC), and which present their nationality as Chinese. I accept that the applicants are nationals of China, and I find China to be their receiving country for the purpose of this review.

    [1] Low, C.C. 'Report on Citizenship Law: China and Taiwan', Robert Schuman Centre for Advanced Studies, October 2016, 20190212133821, p.9.

    Protection claims

20. As has been noted above, the applicants’ claims to protection have been largely advanced on their behalf by Ms YC. In summary, it is claimed that Ms YC became a Christian in around 2008, and that the other applicants became Christians soon after this, and they thereafter experienced persecution from China’s authorities for reason of their Christian religion, and they fear further such persecution were they to return to China. In particular, it is submitted that the Chinese authorities: prevented them from engaging in Christian worship; and also: caused them financial difficulties by causing their family business to fail and/or by preventing them from obtaining a loan from a bank. It is also claimed that the financial difficulties caused by this treatment resulted their becoming indebted to persons who have assaulted and harassed them and have threatened the entire family with harm if the money is not repaid. At the 20 November 2024 Tribunal Hearing Ms SZ also claimed to be concerned by the lack of tolerance toward Christians in China, and she submitted that in China she was mocked by school mates because she was a Christian.

21. On 20 November 2023 Ms YC an Ms SZ appeared before the Tribunal. As has been noted above, they indicated that it was Ms YC who would be presenting their case while Ms SZ provided support, though Ms SZ did subsequently make contributions when I asked her if she wanted to be heard. As has been noted above, Ms YC presented a number of documents to the Tribunal at the hearing which until that time had not been provided to either the Department or the Tribunal, and several of which were in Chinese and not accompanied by a translation. Copies were taken of these, and I invited Ms YC to read these documents aloud in Chinese (and which the interpreter then conveyed in English) and to then explain the content of these, and their relevance. I also advised Ms YC that if she wished to rely on documents which were not in English, she should endeavour to provide the Tribunal with English translations for these, as without this it might be difficult for the Tribunal to properly assess and give weight to any such documents as evidence in support of her claims. No such translations were ever provided.

1. It is convenient to begin with the documents which were provided at hearing, all of which were said to establish that the applicants are Christians, and that they were Christians in China and have remained so in Australia.

2. I first asked Ms YC to read aloud the content of the document she had provided which took the form of a red booklet enclosing two pages of Chinese text. Ms YC said it stated: [City 1] City Christian volunteer training class graduation certificate for comrade Ms YC. As part of the volunteer training class held by our church, has completed all the prescribed subjects. Graduation granted. Hereby issued this certificate. [City 1] City Christian Gospel Department, Management Committee. 2014, November 15^th. Training subjects: Chinese Christian volunteer training curriculum; outline of scripture; and then Jesus life, and then outline of the new testament, outline of the old testament, a brief history of church, and how to be an evangelist; and interpretation of the books from the Bible; John, Romans. And 1^st & 2^nd Corinthians; themed lectures: music theory and hints; giving sermons/preaching and preparation of the draft for the sermon; practice of giving sermon; heresy and evil cults; and understand from John 4:1-42, Jesus’s method of performing work.

3. Asked to explain the significance of the above document, Ms YC said that she wanted to show that in China she was already a Christian and had participated in the study and training. Asked who issued the document to her, she said it was issued by the pastor of the church in [City 1], and that this was the Gospel Church in [City 1]. Asked what she had to do to obtain the document, Ms YC said that she had to undertake study, and that the course was more than 10 days, but she could not remember exactly. Asked how the document came to be in Australia, Ms YC said she brought it with her in 2017 when she travelled to Australia. I accept that on 15 November 2014 Ms YC completed a class of some 10 days held by the in [City 1] Gospel Church about Christian beliefs and practises and history, and also about the dangers of heresy and evil cults.

4. Ms YC also provided several photographs at the hearing. The photographs each show different groups of some 50 to 60 persons, presenting in the manner of a group photograph. Several of the photographs show the group in what appears to be the inside of a church. All are overlaid with a banner of Chinese text which includes a date. The earliest is dated 2 May 2015, the next 20-23 July 2016, the next 24-27 July 2016, and the next 2017. Ms YC read allowed the Chinese text which indicated that the latter date in full was 1 January 2017, and that each of the photographs carried the title of a camp staged by the [City 1] Gospel Church. Ms YC explained that the photographs were evidence that she and her children had participated in these camps. I note that a person matching Ms SZ’s appearance can be seen in the front row of the photograph carrying the date 2 May 2015. Ms YC said that her son was pictured in the 2016 photographs, and I note that a person matching Mr XZ’s appearance (I have had regard to his October 2016 passport photograph) can be seen in the photographs dated 20-23 July 2016 and 24-27 July 2016 in the right of the upper middle rows. I note that a person matching Ms YC’s appearance can be seen in both the 2 May 2015 photograph (in the back row) and the 2017 photograph (in the right of the upper middle rows). Ms YC indicated that she herself did not complete the 2 May 2015 camp but had just been included in the photograph.

5. I accept that Ms SZ completed a [City 1] Gospel Church training camp on 2 May 2015, and that Ms YC was also included in the group photograph of this. I accept that Mr XZ completed [City 1] Gospel Church training camps over 20-23 July 2016 and 24-27 July 2016. I accept that Ms YC completed a [City 1] Gospel Church training camp on 1 January 2017.

6. Ms YC also provided and was asked to explain a certificate (in English) which presents as having been issued to Ms SZ (for completing a [Programme] between July 2013 and 2016, provided by [a] Consulting Group, with respect to a [Training] Program delivered by [a company]). Ms YC said that this was a ‘Church camp’ in which Ms SZ had participated in during school holidays. The Tribunal asked Ms SZ if it was correct that the certificate was issued to her. She said it was. Asked to explain what it was, Ms SZ said that was proof of participation in a summer camp, and training about solidarity and suffering/hardship. The Tribunal put it to Ms SZ that the document presented as being issued by [a] Consulting Group with respect to a [Training] Program. Ms SZ said this was correct. Asked to explain who [this company] were, Ms SZ said that the company was in Singapore and the trainer was a Christian, and he came and gave children from the church this training.

7. I put it to Ms YC that although her daughter had indicated that the training was delivered by a Christian, there was nothing on the document to indicate that any of the training provided had actually involved or was related to Christianity. The Tribunal advised Ms YC that the Tribunal would allow her time following the hearing to provide any evidence she might be able to that would establish her claim that the training certificate was related to Christianity. No such evidence was provided, and there is nothing in the certificate to suggest that it was anything other than a certificate for completing training which was delivered by a private company about leadership [and] teamwork and matters such as stress and conflict management. I accept that between 2013 and 2016 during school holidays Ms SZ completed a training course titled ‘Leadership and Teamwork Experiential Programme’, and that this training was delivered by a company from Singapore, and I am also willing to accept that the trainer involved was a Christian, and but I am not satisfied and I do not accept that that this training course was a ‘Church camp’ or that it had anything to do with Christianity.

8. I accept that on 15 November 2014 Ms YC completed a class of some 10 days held by the [City 1] Gospel Church about Christian beliefs and practises and history and also about the dangers of heresy and evil cults, and I also accept that Ms SZ completed a [City 1] Gospel Church training camp on 2 May 2015, and that Ms YC was also included in the group photograph of this, and I accept that Mr XZ completed [City 1] Gospel Church training camps over 20-23 July 2016 and 24-27 July 2016, and I accept that Ms YC completed a [City 1] Gospel Church training camp on 1 January 2017. But such documentary evidence as there is of the applicants having engaged with Christianity is thus limited to the three years prior to their March 2017 application for a visa to travel to Australia, whereas Ms YC has claimed that her engagement with Christianity through the [City 1] Gospel Church, and then that of her other family members, began in around 2008. No documentary evidence whatsoever has been provided to establish that Mr YZ ever attended a Christian church in China. All this raised that concern that Mr YZ may not have had any engagement with Christianity in China, and that such engagement as the other applicants had was limited, and was engaged in during the three years prior to their departure for Australia with a view to applying for a protection visa following arrival on the basis of fearing harm as Christians.

9. I later asked Ms YC to explain why it was that Ms SZ had been issued her passport in December 2015, whereas the rest of the applicants had been issued their passports in 2016. Ms YC said that in around 2013 the family began to have debt problems and they thought Ms SZ could travel to Singapore and stay with relatives in Singapore and make a future there. I noted that her husband Ms YC had been issued his passport in January 2016, whereas Ms YC and her son Mr XZ were not issued passports until October 2016. Ms YC said that Mr YZ had his passport issued earlier than herself and her son because her husband was considering going to work in other countries, but he then decided not to do this. Ms YC insisted that it was not until much later that she and the rest of the family decided to travel to Australia together.

10. At her November 2018 interview Ms YC was asked to explain what led her to Christianity. She said that someone had come and talked to her about the gospel and after consideration she had decided to become Christian. Asked why she did this, Ms YC submitted that she was running her own business and the person from the shop next door ‘he’ came and invited her to go and pray in the Buddhist temple and so she had said that she did not want to, she just wanted to be Christian. Asked to explain this, Ms YC said her mother had been a Buddhist and these teachings had scared her. At the November 2023 hearing Ms YC was asked to explain this dislike of Buddhism and she said her mother and grandmother had been Buddhists and had spoken about scary things, and that when she was young her mother had had another child which did not survive, and her grandmother had gone to a fortune teller to ask about this. Ms YC likewise asserted that she had said she wanted to be a Christian to fend off invitations from someone to attend a Buddhist temple. But whereas in the November 2018 telling of this these had come from a man in the neighbouring shop to the business Ms YC was running, at the November 2023 hearing Ms YC said the invitations had come from kind hearted sister, and there was no mention of a man from a neighbouring shop (at the November 2023 hearing Ms YC claims she was only involved with the  business occasional and was not running it).

11. When these differences were put to Ms YC she submitted that there may have been translation errors at the November 2018 interview. This is not impossible but, even so,
    Ms YC’s explanation for why she began to attend a Christian Church in communist China
    (to avoid invitations from a neighbour to attend a Buddhist temple) was not compelling. The same was true of Ms YC’s evidence at the November 2018 interview with regard to her claim to have an interest in attending Bible classes. Asked about favoured passages she identified several accounts of the miracles of Jesus, but without volunteering why she was purportedly affected by these accounts or what meaning they had for her. At the November 2023 hearing she was asked about what her activities with the [City 1] Gospel Church in China, and with the Methodist Church in Australia, and her answers were always perfunctory and did not volunteer any elaboration about why such practises were important for her. Similarly, when I asked SZ to explain why she considered herself a Christian her answers were perfunctory; she said that she believed in God and helping others, and that God was watching her every deed and she should not commit any bad deeds. This is not to say that such evidence raises any doubts, but it was not compelling.

12. At her November 2023 hearing Ms YC submitted that since her arrival in Australia (in April 2017) she had been attending a Methodist church continuously, including every Sunday, and recently she had also begun to attend a Gospel church. Asked about the church attendance of her other family members while in Australia, Ms YC said that husband rarely went to church because he worked every Sunday, and her children had not been going lately either. As evidence of her own Christian engagement in Australia Ms YC submitted a 9 July 2023 letter from a Chinese Methodist Church here in Australia. This stated (in English and in Chinese) that Ms YC having received the sacrament of baptism and having been instructed in the teachings and aims of the Methodist Church has come seeking admission into the Christian fellowship on 9 July 2023, and they (the church) rejoice to recognise Ms YC as a member of the church. Ms YC claimed to have been attending this church since her arrival in April 2017. I put it to Ms YC that the document she had presented gave the impression that her engagement with the church had begun on 9 July 2023. What is more, this had occurred just a few weeks after the Tribunal had issued an email on 20 June 2023 to alert her that the Tribunal was about to look at her case. Ms YC said that she was amazed by this coincidence, and that it was genuine coincidence because the church only granted membership once a year.

13. I note, however, that even if it is the case Ms YC’s church only grants membership once a year, this would nonetheless mean she had six opportunities to make a request for this membership between the time of her arrival in Australia in April 2017 and her July 2023 request for admission to the church.

14. At the November 2023 hearing I explained to Ms YC that I had concerns about whether her attendance at a church really had been regular and consistent since 2017, and that she should endeavour to provide evidence such as a letter from the church which established this. Ms YC subsequently provided some photographs said to show her attending functions at a Chinese Methodism Church, said to be: a day trip on 12 June 2017, a revival evening on 15 August 2027, a Sunday service on 20 August 2017, a fellowship gathering also on

    
    

    20 August 2017, a prayer meeting on 29 August 2017, and Bible Quiz five years later on 25 September 2022. Also provided was a 27 November 2023 letter from a Reverand T who until 2023 had been the minister-in-charge of the Chinese Methodist Church attended by Ms YC. Reverand T attested that Ms YC began to attend the church from around May 2017 (when the church was renting premises in [a suburb]) and: She was a regular to out Sunday services, participated in our Tuesday prayer meeting, our family fellowship gathering and other church revival events and community services as well. She was accepted to be a member of the church in September 2023. Her husband (Mr YZ), daughter (Ms SZ) and son (Mr XZ) also join our Church Sunday services and other activities occasionally. Reverend T then noted that the church had purchased its own building in December 2021. He then stated that Ms YC: is dedicated to serve the church and the congregation that she volunteers to help do the cleaning of the church weekly.

15. It was unclear from this whether Ms YC’s church cleaning began from 2021, and it was likewise unclear whether Ms YC’s regular attendance had been consistent following 2017 all the way to her being accepted member of the church in September 2023; and no explanation was provided for why (if Ms YC was attending the church regularly in 2017) she was not recognised as a member of the church until six years later.

16. On 14 December 2023 I wrote to the applicants and I put it to them that I was concerned by: the limited nature of the documentary evidence which they had provided to establish their claims about their engagement with Christianity in China (which was limited to between November 2014 to January 2017, and of which there was none at all for Mr YZ); and: by the manner in which Reverand T’s 27 November 2023 letter did not expressly address whether Ms YC’s church attendance in Australia had remained regular over the entirety of the years between 2017 and 2023; and: by how Reverand T’s 27 November 2023 letter indicated that the other applicants had attended church services and other activities ‘occasionally’. It was explained to the applicants that, subject to their comment or response, the Tribunal might conclude that they had engaged with Christianity solely for the purpose of strengthening their claim to be a refugee; and that the Tribunal might not be satisfied that they had a genuine interest in Christianity, or that they would practise Christianity if they returned to China, or that they would face a real chance of persecution or a real risk of any harm on any such basis if they were to return to China. The applicants provided no further documentary evidence in response to these concerns, and their response consisted of Ms YC’s January 2024 statement in which she submitted that she and her other family members were all Christians, and whether they did or did not have a certificate for this made no difference to their faith, and that her other family members will participate in ‘some’ church activities and worship services.

17. On the evidence before me I am not satisfied that the engagement of Ms YC and her children with Christianity in China extended much beyond the handful of [City 1] Gospel Church events which their [City 1] Gospel Church documentary evidence establishes they attended over the period November 2014 to January 2017; and I am not satisfied that their engagement with Christianity in China began any earlier than around November 2014, and I do not accept that Mr SZ ever engaged with Christianity prior to his arrival in Australia. Although I have had my doubts I have ultimately concluded that I do accept (given in particular the letters which have been provided by two church ministers in Australia attesting to Ms YC’s being a Christian and her dedication to being part of church and a congregation) that Ms YC is a believer in the Christian faith and that she also has an interest in regularly attendings weekly church services and activities such as prayer meeting and Bible classes as well as welfare activities for the church and the broader community. I accept that Ms YC would also have an interest in participating in such activities were she to return to China. The evidence is much less persuasive with respect to the other applicants. Nevertheless, and although I have my doubts, I am willing to accept that the other applicants have also come to be believers in the Christian faith, and that if they were to return to China they will (as they have done in Australia) have an interest in occasionally attending some church services and other activities.

18. Another concern raised by Tribunal’s 14 December 2023 invitation concerned information which had been provided by Ms YC about whether she had ever attended an unregistered church in China. It was put to the applicants that at the November 2018 interview Ms YC had claimed that after becoming Christian in around 2008, she and her family attended [a] Church. When was put to Ms YC (by the delegate) that in her 17 April 2018 Protection Visa application she had claimed she attended an unregistered church, Ms YC had said she had not, and that there must have been a misunderstanding with her then migration agent. At the November 2023 Tribunal hearing, Ms YC claimed that after becoming Christian in around 2008, the only church which she and her family ever attended in [City 1] was the Gospel Church, and that this was a [Church], and that the only other church she ever attended was a rural church in Fuqing which she attended when she went to visit her mother. Thus, other than in her April 2018 written claims, Ms YC gave no indication that she had ever attended an unregistered church. It was explained to the applicants that the Tribunal might not be satisfied that Ms YC or any other of the applicants had ever attended an unregistered church in China, or that they had any interest in doing so, or that they would face a real chance of persecution or a real risk of any harm on any such basis if they were to return to China.

19. In response, Ms YC’s 6 January 2024 statement submitted that the church which she attended when occasionally returned to her mother’ house in Fuqing was not a registered church. I have not found this persuasive. I note in this regard that at the November 2023 hearing Ms YC was asked about the name of the church which she claimed to have attended in Fuqing when she went to her mother’s house, and her response was that: it was a rural church which did not really state anything specific except a cross. She offered no more than this, and while I note that unregistered churches are more likely to have a cross than are registered churches, Ms YC nonetheless gave no indication that the church was not registered. Moreover, at the November 2018 interview the delegate asked Ms YC repeatedly about why her April 2018 written claims had made reference to an unregistered church in he written claims and she gave no indication that she had attended an unregistered church when she visited Fuqing. Instead, her response was that there had been a misunderstanding with her agent, and she submitted that she had only ever attended a registered [Church] in China; and while Ms YC sometimes indicated at the November 2018 interview that she did not understand some questions, the issue of whether she ever attended an unregistered church was discussed at such length that I consider that she was ultimately in no doubt about what was being asked of her. If Ms YC had attended an unregistered church in China I consider that she would have said so at the April 2018 interview. She did not, and I do not accept that Ms YC (or that any of the other applicants) ever attended an unregistered church in China.

1. Another concern raised by Tribunal’s 14 December 2023 invitation concerned Ms YC’s claims about the treatment of the [City 1] Gospel Church (this being [a] church which Ms YC claimed that she and the other applicants had primarily been attending in China, and which she referred to as her church), and her claim that she and the other applicants had been prevented from attending this church and that they feared they would be prevented from attending it in the future if they returned to China. At the November 2018 interview Ms YC had claimed that after becoming Christian in around 2008 she and her family were harassed by the government, and the government had entered their church, and they were: forbidden by the government to practise their religion, praying, and forbidden from having their religious gathering; and that this happened in 2013 and occurred because they were affected by the activities of other Christians who were extremists. Similarly, at the November 2023 Tribunal hearing where she said that the government closed the [City 1] Gospel Church for a long period of time due to government interference, and that this occurred because other churches were engaging in heresy and the government wanted to investigate these other churches, and that her children were prevent from attending, but when asked when these closures occurred she said she could not remember.

2. In its 24 December 2023 invitation, the Tribunal put it to the applicants that in November 2016 the [media][2] had published an article on the history of the [City 1] Gospel Church, but this gave no indication that this church had been experiencing any of the problems alleged by Ms YC, or indeed any problems at all. The article reported that it had been more than 20 years since the [City 1] Gospel Church started their Christian study classes; and the article gave no indication that the government ever disrupted this, or that the church was ever closed by the government (whether in 2013 or at any other time over the 20 years prior to November 2016), or that the congregation have faced any harassment or any restrictions on their worship. Given this, the Tribunal put it to the applicants that, subject to their comment or response, the Tribunal might not accept that the [City 1] Gospel Church was closed in 2013 and/or for a long period of time when they were in China, or that they were ever prevented from worshiping at [City 1] Gospel Church, or that you were ever subject to any harassment by the government, or that you were ever forbidden from practising Christianity in China; and the Tribunal might not be satisfied that the applicants would face a real chance of persecution or a real risk of any harm if they were to return to China and attend Christian worship and activities at the [City 1] Gospel Church.

   [2] [deleted]

3. In response, Ms YC’s 6 January 2024 statement submitted that: China has Christianity, Buddhism, cults, etc, and because of other sects the applicants’ won Christianity has been implicated and investigated.

4. I note, with regard to all of this, that China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism; but official recognition requires registration as part of one of the ‘patriotic associations’ administered by the CCP.[3] In the case of Protestant Christianity, the Three-Self Patriotic Movement (TSPM), established in 1949, is the official governing body for Protestant churches in China. ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation taken from 19th century missionary philosophies.[4] The Chinese government has estimated that the TSPM has 23 to 30 million members,[5] out of the total estimated 38 million Christians in China.[6] More broadly it is reported that the size of the Christian population in China is much higher, and that most Protestants worship in unofficial ‘house’ churches,[7] and that unregistered churchgoers outnumber members of official churches nearly two to one[8] (with some of these being persons who participate in both house church and TSPM worship, or who move between the two).

   [3] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.22, 3.25; DFAT, 'DFAT Country Information Report: China', 3 October 2019, 20191003160550, 3.37, 3.39.

   [4] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.22.

   [5] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.28.

   [6] DFAT, 'DFAT Country Information Report: China', 3 October 2019, 20191003160550, 3.84.

   [7] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.33.

   [8] DFAT, 'DFAT Country Information Report: China', 3 October 2019, 20191003160550, 3.76; and see: Pew Research Center, 'Measuring Religion in China', 30 August 2023, 20230913092014; Jianrong, Y. 'Desensitization and Social Reforms Taking House Churches as an Example', China Aid Association, 11 December 2008, CX245556.

5. Under President Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. With respect to Christian congregations: Authorities have regulated Christianity to make it more ‘China-orientated’.[9] Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.[10] Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.[11]

   [9] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.29.

   [10] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.30.

   [11] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.29.

6. Since 2017, following an update of the “2018 Regulation on Religious Affairs,” authorities have been more strictly implementing policies on unauthorized religious activity;[12] with increased efforts to force ‘house’ churches to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM.[13] Their strategy has included putting more pressure on venues to affiliate with the TSPM and to submit to government oversight.[14] Churches refusing to align with the TSPM have been closed or threatened with closure, and DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches.[15] This noted, it has also been observed that the party-state does not rule by repression alone and that the authorities often seek to persuade rather than force such churches to align with the TPSM.[16]

   [12] Pew Research Center, 'Measuring Religion in China', 30 August 2023, 20230913092014, p.70.

   [13] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.33.

   [14] Pew Research Center, 'Measuring Religion in China', 30 August 2023, 20230913092014, p.70.

   [15] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.33; Koesel, K.J. et al, 'Official Protestantism in China', Review of Religion and Chinese Society, 25 September 2019, 20190925180628, p.86.

   [16] Koesel, K.J. et al, 'Official Protestantism in China', Review of Religion and Chinese Society, 25 September 2019, 20190925180628, p.86.

7. It is also the case that some religious leaders have faced arrest and charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’.[17] At the end of 2017 the Political Prisoner Database maintained by the human rights NGO Dui Hua Foundation reported of religious prisoners in China that these included: 308 Protestants, 277 Almighty God Church members, compared with 207 Protestants, 366 Almighty God Church members, at the end of 2016. The Church of Almighty God (COAG; or CAG, and also known as Eastern Lightning) is known for believing that divine revelation has identified a “female Christ” who will reign over a new age in which humankind will be judged and only believers will survive; and for calling on members to slay the CCP which they call the ‘great Red Dragon’. COAG considers itself a persecuted house church,[18] but is categorised by the Chinese Authorities as being ‘xie jiao’ (which is commonly translated as ‘evil cult’, but which is reportedly closer in meaning to ‘heterodox teachings’).[19] Religious movements which are classified as xie jiao are illegal, and under China’s Criminal Law even low profile members can face prison sentences of up to seven years for using ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations.[20]

   [17] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.24.

   [18] COAG, '2017 Annual Report on the Chinese Communist Government's Persecution of the Church of Almighty God', 16 November 2017, CISEDB50AD7778, p.

   [19] Zoccatelli, P.L. 'Anti-cult campaigns in China and the case of the Church of Almighty God. An introduction', CESNUR, January 2018, CIS7B8394110606, p.4.

   [20] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.53.

8. DFAT notes that Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored. Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. DFAT has assessed that, overall, an individual’s ability to practise religion in China depends on whether they worship in registered or unregistered institutions, whether they practise openly or privately, and whether their religious expression or their religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues.[21]

   [21] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.25-3.26.

9. Given all this, it is not impossible that even a church which is registered with the TSPM might face problems in certain circumstances; and indeed (although most reports of problems for Christian churches experiencing problems in China concern government crackdowns on Christian movements deemed to be cults and/or the closure of house churches with pressure being applied for their members to join a TSPM church)[22] there are also reports of some TSPM churches experiencing problems with the authorities. For instance, in 2016 pastors at TSPM churches in Hangzhou and Jinhua reportedly faced prosecution after they opposed the removal of the crosses on their churches;[23] and in 2017 a church in Liaoyang was fined and its two pastors and some other senior church figures were given prison sentences after it was found that illegal Christian books had been sold within the church.[24] It was also reported of 2017 that the Sunday school activities of local “Three-Self” churches had been interfered with and suspended by the government in some areas (notably in areas of Zhejiang and Henan).[25]

   [22] For examples, see: China Aid, ‘2016 Annual Report- Persecution of Churches & Christians’, 1 February 2017, CISEDB50AD3824 pp.12, 23-24; China Aid, ‘2017 Annual Report- Persecution of Churches & Christians’, 2 January 2018, CIS7B839411235, pp.9, 15, 17-19, 23-24.

   [23] China Aid, ‘2016 Annual Report- Persecution of Churches & Christians’, 1 February 2017, CISEDB50AD3824, p25.

   [24] China Aid, ‘2017 Annual Report- Persecution of Churches & Christians’, 2 January 2018, CIS7B839411235, p.22.

   [25] China Aid, ‘2017 Annual Report- Persecution of Churches & Christians’, 2 January 2018, CIS7B839411235, p.26

10. However, it is not apparent from the available reporting that the [City 1] Gospel Church has ever experienced problems of this kind; and indeed the content of the November 2016 [a] report strongly suggests that it has not.[26] As has been noted already, the article reports that it had been more than 20 years since the [City 1] Gospel Church started their Christian study classes. It also reported that: There are over 4100 believers in [City 1] City, with 2500 congregants at the Gospel Church along with two pastors, one preacher, 55 volunteer preachers, and 12 fellowship places; and: the Gospel Church insists on hosting revivals every year in order to improve the pasturing skills and the spiritual lives of the believers, and that invite pastors from other places to give lessons. They also host summer retreats, Backbone retreats twice a year, and Bible trivia contests. They hold bonfire nights, outdoor barbecues, climbing mountains and visiting parks, and other outdoor activities, where everyone sings hymns, shares, and socializes. The article notes that movements deemed to be cults (specifically the movement known as ‘The Shouters’ and ‘Eastern Lightning’) have ‘been rampant’ and the church sees this as a challenge which it is addressing by way of ‘anti-heresy study classes, visitation personnel training classes, and other classes’. It is, however, not apparent that the [City 1] Gospel Church has experienced any problems from cults and extremists, or the [City 1] Gospel Church has experienced any problems from the authorities because of such groups.

    [26] [deleted]

11. I note, moreover, that the applicants’ evidence about this has not been persuasive. As noted in the delegate’s decision: at the November 2018 interview Ms YC was unable to explain what she meant (with respect to her assertions that her church suffered persecution and harassment) other than to submit that the government would enter the church. At the November 2023 hearing Ms YC said that because they were [a] Church there was a long period of time when the church stopped because of government involvement and interference. But when I asked how many years it was prior to her departure it was that the church was shut down. Ms YC said she could not be sure. I put it to Ms YC that it was difficult to believe that she would not be able to provide a better approximation of when the church was not operating if all of this was true. Ms YC said she could not say because she was just a member of the church, and it was the pastor who the government notified about the shutdown. I did not find this persuasive given that, regardless, if a church was not operating during certain years this would have been known by the congregation’s members. Ms SZ’s contribution about this at the hearing was that all she remembered was that in the first year of senior high school (in around 2016/2017) her mother told her she no longer needed to go to church and she (Ms SZ) felt quite sad at the time. But if this was the case (that there were problems of this kind in the years immediately prior to the applicants April 2017 departure from China) it is default to believe Ms YC would not have said so; and Ms YC provided evidence indicating that she attended a [City 1] Gospel Church event as recently as January 2017, with her son (then a culd) attending two events as recently as July 2016, and when I asked Ms YC if the [City 1] Gospel Church was operating at the time she left China she said that it was.

12. The applicants have not provided any country information or any other documentary evidence to establish that the [City 1] Gospel Church ever experienced any problems (from the authorities or form any other cause) over the decades which preceded the applicants’ April 2017 departure from China. I am not satisfied that it did, and I do not accept that in China the applicants were ever prohibited or prevented from attending Christian worship at [City 1] Gospel Church or in engaging in any Christian practises in a private place such as their home, or that they ever experience any harassment or other problems form the government in this regard. The most that I can accept is their engagement with Christianity may have resulted in some very low level discrimination such as Ms SW being mocked in front of class mates for being a Christian.

13. In the 14 December 2023 invitation the Tribunal also put it to the applicants that at the November 2023 Tribunal hearing Ms YC had indicated that if the [City 1] Gospel Church was still operating, and without government interference, she would be able to engage in Christian worship and practise the Christian faith in China. I note that at the November 2023 hearing Ms YC had submitted that she did not know if the [City 1] Gospel Church was operating freely in this way because, although she had been in contact with the [City 1] Gospel Church pastor and other congregants after arriving in Australia, she had not been in contact with them recently. The Tribunal subsequently located a December 2022 article published in the China Christian Daily[27] from the deputy leader of the Canaan cell group of the Gospel Church in [City 1] City, Fujian Province. This article provided information which indicated that the [City 1] Gospel Church was still operating. It gave no indication that the [City 1] Gospel Church was affected by any government interference. The Tribunal put it to the applicants that subject to their comment or response the Tribunal might not be satisfied that they would face a real chance of persecution or a real risk of any harm if they were to practise Christianity upon return to China.

    [27] Qin, W. "Fujian Church Launches 'Santa Claus Caring Action", China Christian Daily, 22 December 2022,

14. In her January 2024 statement Ms YC responded to this by submitting that she did not know if after they returned to China they would be interfered with by other sects and discriminated against by other people.

15. DFAT has assessed that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely; and that: Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk; and that: Protestant Christians face a low risk of societal discrimination. DFAT has noted that the situation for Protestants differs from place to place and community to community, and some have been largely unaffected by increased government oversight.[28] DFAT’s December 2021 assessment remains consistent with broader reporting. For instance, the most recent US Department of State (USDOS) report continues to report that: Authorities continued to bar students younger than 18 from receiving religious instruction, but multiple local sources said enforcement and implementation of the prohibition varied widely across and within regions;[29] and in recent years the annual reporting of ChinaAid (a Christian advocacy group which monitors China) has reported very few incidents of concern in Fujian Province beyond the staging of events to promote the ‘Sinicization of Christianity’.[30] Such other instances of concerns as there have been with regard to Fujian Province have been limited to matters like the issuance of fines to some members of a large house church in Xiamen (the Xunsiding Church) which has been resisting inclusion into the TSPM, and the banning of the Berea house church which has been categorised by China’s authorities as a cult.[31] It is also reported that Protestant Christians face official discrimination politically and in obtaining some employment positions in the public/government sector because, like anyone who believes in a religion, they are ineligible for membership of the Chinese Communist Party (CCP), and thus ineligible for political office or for employment in any public/government sector positions where this is a requirement (cases of the government pressuring private employers to terminate contracts with religious employees are said to be rare).[32]

    [28] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 3.34-3.35.

    [29] USDOS, 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', 26 June 2024, 20240628112222.

    [30] China Aid, ‘Annual Persecution Report 2023’, March 2024, 20240702124915, p.19; China Aid, ‘2022 Annual Report- Persecution of Churches & Christians’, 14 February 2023, 20230313122518, p.17.

    [31] China Aid, ‘Annual Persecution Report 2023’, March 2024, 20240702124915, p.51; China Aid, ‘2022 Annual Report- Persecution of Churches & Christians’, 14 February 2023, 20230313122518, p.51 ChinaAid, 'Xiamen pastor summoned for hearing', 29 April 2022, 20220504105107; ChinaAid, ‘Subpoena to Huang Yuanda from the Jimei District Court of Xiamen’, 10 November 2022, ; Bitter Winter, ‘Seoul Sungrak Church: One of the World’s Largest Baptist Churches Banned as a “Cult” in China’, 19 January 2023, ; 'Protestant Home Church banned for “collaborating with Korea”', Asia News IT, 17 May 2017, 20190221155908.

    [32] Open Doors, World Watch List 2024: China’, pp.4, 6

1. Protestant Christians in China thus face a moderate risk of official discrimination in the form of being ineligible to access CCP membership, and thus of holding a political office or obtaining a public/government sector job where CCP membership is a requirement. I note, however, that the applicants have given no indication that they have any interest in obtaining CCP membership or any of the political offices or public/government sector jobs for which this is a requirement; and even before becoming Christians Mr YZ and Ms YC only ever sought private employment in jobs like small business and retail, and construction and mining. Given this, and given the broader and growing availability of private employment in China[33] (and given the absence of any significant evidence of Christians facing problems in finding private employment in China) I am not satisfied that the applicants would for reason of Christianity face a real chance of serious harm by way of official discrimination in the form of being denied the capacity to earn a livelihood of any kind (such as would threaten their capacity to subsist), or in terms of accessing a bank loan, in accessing essential services, or in any other regard.

   [33] Lardy, N. ‘The Changing Role of the Private Sector in China’, RBA, 2016, p.40, ; Begum, K. ‘Private sector development to keep Chinese economy afloat in 2024’, CGTN Nws, 7 January 2024,

2. To the extent that Protestant Christians are at risk of official discrimination more broadly this takes the form of the manner in which China’s authorities do not allow Protestant Churches in China to practise their faith freely; with Protestant Churches being required to be a part of the TSPM and to adhere to its directives. But in the case of the [City 1] Gospel Church it is not apparent that this church, which is a TSPM church, has any interest in conducting itself in a manner which is at odds with the directives of China’s authorities other than perhaps its having provided religious education to persons under 18 years of age (though on the evidence before me it is not apparent that this restriction is being enforced in [City 1], and even if the [City 1] Gospel Church were to be prevented from engaging in this specific practise in the future this would not prevent either Ms SZ or Mr XZ from attending church services or activities since they are now both adults). The only other church which Ms YC has indicated that she attended was a church with a cross which she occasionally attended, when visiting her mother, and even if such a church were to be required to remove its cross, or even if it were shut down, this would not prevent Ms YC or the other applicants from practising their faith given the existence of the [City 1] Gospel Church. Given all this (and noting that Ms YC has herself indicated that if the [City 1] Gospel Church was still operating, and without government interference, she would be able to engage in Christian worship and practise the Christian faith in China), and even allowing for future increased enforcement of TNSM policies in China, I am not satisfied that the applicants would, for the foreseeable future, face a real chance of being prevented from practising their Christian faith in China, or that they would be at risk of arrest or harassment or any other kind of harm from the authorities in China for doing so.

3. In terms of societal discrimination, I accept that the applicants might face some occasional low level societal discrimination such as being mocked by others about practising Christianity. But I am not satisfied that there is a real chance that this would occur in a manner and/or to an extent that would amount to serious harm, nor is it apparent on the evidence that there is a real chance such societal discrimination would extend to discrimination in the employment market to such an extent as to pose a real chance of serious harm by way of denying any of the applicants the capacity to earn a livelihood of any kind (such as would threaten their capacity to subsist), or in terms of managing a privately owned business, or in any other regard. Given all of this, I am not satisfied that the applicants would face a real chance of serious harm for reason of being Christian if they were to return to China. I am not satisfied that they have a well-founded fear of persecution in this regard.

4. Another concern raised by Tribunal’s 14 December 2023 invitation concerned information which had been provided in the 24 March 2017 application for a Temporary Work visa; the grant of which had enable the applicants’ entry into Australia; this information was at odds with Ms YC’s evidence that from around 2007 her husband had run a  [business] which had accumulated significant debts by 2013 such that it ceased to operate, and following which he worked in construction and as a miner. In contrast to this, the Temporary Work visa application indicated that Mr YZ was a fluent speaker of Chinese and English with a [degree] which had been working as a [professional] since March 2002 and who had been employed in this capacity by a [City 2] based company since February 2012. The Temporary Work visa application also included: a reference letter from this employer; and: a letter from an electronics company in Australia who submitted that they wished to employ Mr YZ because of his skills in [deleted].

5. The Tribunal put it to the applicants that the information provided in the Temporary Work visa application was at odds with information provided in their 17 April 2018 Protection Visa application in which Mr YZ indicated that his highest level of education was middle school, and in which Ms YC referred to their running a business, and shops, and that they experienced problems from officials and money lenders in this regard. The Tribunal put it to the applicants that the information provided in the Temporary Work visa application was at odds with Ms YC’s claims at the 20 November 2023 Tribunal hearing, that Mr YZ ran a  [business] from around 2007 until 2014, and that this business closed due to financial difficulties which resulted in the applicants being indebted to two partners in the business who then harassed them for repayment, and that between 2014 until April 2017 Mr YZ was working in construction and in the mines. The Tribunal explained that, subject to their comment or response, it may conclude that Mr YZ was employed as a [occupation] from 2002 until their April 2017 arrival in Australia, and the Tribunal might not accept that Mr YZ and/or Ms YC were ever operating a business in China, or that they ever experienced problems in this regard from officials or money lenders, or from business partners to whom they became indebted, and the Tribunal might not be satisfied that the applicants would face a real chance of persecution or a real risk of any harm on any such basis if they were to return to China.

6. The above concerns were also put to Ms YC at the November 2023 Tribunal hearing (at which Ms SZ was also present). At the hearing Ms YC’s response was that she did not know why such information had been provided about her husband in the Temporary Work visa application, because she had not delt with the matter of the Temporary Work visa application. Ms YC’s 6 January 2024 statement likewise submitted that she was entirely unaware of the claims that had been made in the Temporary Work visa application about her husband until she was old about these at the November 2023 Tribunal hearing. She also indicated that her husband had not known about this either. Her explanation was as follows: Since 2013 her family’s life in China had become very difficult after she learned they were in debt, and in around November 2016 a sister from the church, Ms PH, told her there was an agency that could help others go to Australia; and: Ms YC then used the contact details provided by Ms PH to contact an intermediary named Ms WM to whom Ms YC provided the relevant documents, and then in January 2017 Mr ZY was told to go to an address in Fujian’s Fuzhou City to sign the application which he did, and they were then told to wait for news from Ms WM, and then around 22 March 2017 they were informed their visa had been approved, and they started booking flights and came to Australia, but they did not know anything other than this as everything else was handled by Ms WM’s agency.

7. In December 2016 DFAT reported that: syndicates selling immigration packages for visa applicants are active in Fujian; and: there is a well-established history of individuals from Fujian using fraudulent documents to obtain visas; and that: Fraudulent activity is supported by highly organised and well-resourced networks of agents and counterfeiters.[34] It is also apparent from broader reporting that visa fraud services are made use of by large numbers of persons from Fujian, and that the existence of the availability of such services in Fujian is well known.[35] I accept that the applicants did make use of a service which fabricated fraudulent claims and documents about Mr YZ’s education and employment history for the purpose of obtaining a Temporary Work visa for Australia. But given the extent to which such services are made use of and widely known about in Fujian it is difficult to believe that Ms YC and Mr ZY would not have had at least some awareness that they were making use of a service which would obtain for them a visa to enter Australia by way of fraudulent claims and documents. I note also that Mr ZY would then have had to enter Australia as the holder of a visa which had been granted to him on the basis that he was a [occupation] with a job offer from [a] company. Given that upon arrival it was possible that he might be asked questions about this by Australian immigration officials, it is difficult to believe that Mr ZY and Ms YC would have been entirely unaware of the fraudulent claims and documents which had enabled the grant of this visa until this was broached with them by the Tribunal.

   [34] DFAT, ‘DFAT Thematic Report: Fujian’, 16 December 2016, CIS38A80123116, 5.9-5.10.

   [35] Liang, Z. & W. Ye, ‘From Fujian to New York: Understanding the New Chinese Immigration’, in: Global Human Smuggling: Comparative Perspectives, John Hopkins University Press, 2001, CX163756; Canadian Immigration & Refugee Board, ‘China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, hukou, resident identity cards and summonses; the situation in Guangdong and Fujian particularly (2001-2005)’, 8 September 2005, CHN100510.E; Liu-Farrer, G. 'Debt, Networks and Reciprocity: Undocumented Migration from Fujian to Japan', The Asia-Pacific Journal , 28 June 2010, CISDCDCAAB1581; '34 arrested for selling fake IDs', China Daily, 1 June 2012, CX298237; RNZ, ‘Immigration NZ makes changes after visa fraud’, 12 July 2012, ; Chin, J.K. 'Trends and Government Policies: Reducing Irregular Migration from China', Centre of Asian Studies, University of Hong Kong, November 2012, CIS24531.

8. Another concern raised by Tribunal’s 14 December 2023 invitation concerned discrepancies between the residential addresses provided in Temporary Work visa application, and on the applicants’ national identity cards (translations for these were provided with the Temporary Work visa application). This information indicated that Ms YC had been residing at an address in Fujian’s Fuqing City, while the other three applicants had been residing at an address in Fujian’s [City 1] City on YNW Road. But at the November 2023 Tribunal Hearing Ms YC said that when she and the other applicant’s left China in (April 2017) they had been residing together in [City 1] City at a YG address since 2008. In response, Ms YC’s 6 January 2024 statement submitted that she and her husband had not changed their household registration since they were married (with the implication being that the Temporary Work visa application had reflected the residential details on their identity documents, but these details had not reflected their actual circumstances, and this was also the case for their children whose residential details replicated their father’s details). Ms YC submitted that after she married her husband, she lived at his YNW Road with his parents, and so did their children when they were born, and in 2008 the applicants moved to the YG address. This is a plausible explanation and I accept that this is what occurred (for while cities like Beijing or Shanghai can have stringent requirements with respect to household registration (hukou), this is less the case elsewhere such that persons moving to different locations within a given province are able to access services in a new locality without having updated their hukou details).[36]

   [36] DFAT, ‘DFAT Thematic Report: Fujian’, 16 December 2016, CIS38A80123116, 3.37; 5.3-5.4; DFAT, ‘DFAT Country Information Report: China’, 22 December 2021, 20211222100210, 5.25-5.26.

9. Among the more significant concerns raised by Tribunal’s 14 December 2023 invitation was that the evidence which had thus far been provided by Ms YC to the Department and then to the Tribunal raised doubts about: whether the family’s business had failed for reason of government interference because they were Christian, and/or that the government had prevented them from obtaining a bank loan because they were Christian; or that all of this had resulted in them owing RMB1,000,000 to a Mr L and a Mr A who had been Mr YZ’s business partners and who then bean threatening to harm the applicants and who threatened that they knew where Ms SZ and Mr XZ went to school; and from which threats the applicants could not obtain protection from the police because the police would not assist them owing to their being Christian. The following particulars were summarised for the applicants:

   ·     At the 9 November 2018 Department interview, Ms YC was given the opportunity to list any difficulties she and her family had experienced in China. She said that in China she ran her own business, but this was not successful, and that the government interrupted you from getting a loan, and that you (the applicants) feared harm from your creditors because you were unable to repay your loan. She also asserted that the government prevented you from practising Christianity. But Ms YC gave no indication that you were otherwise caused any other kind of harm or disruption in China by the government, or creditors, or anyone else.

   ·     At the 20 November 2023 Tribunal hearing, Ms YC claimed that: Mr YZ operated a  [business] from around 2007 until 2014; and that this had discontinued after it went into debt; and: in 2013 she learned from her husband that the business had incurred a lot of debt due to various aspects of the business, but that she did not know any more than this because she had little to do with the business, and her husband did not go into detail about what had occurred; and you owed about RMB1,000,000 to persons known as Mr L and Mr A who were partners in Mr YZ’s business, and that none of this money had ever been repaid.

   ·     At the 20 November 2023 Tribunal hearing, Ms YC indicated that in China: your creditors would telephone you and come to your home, and ask for repayment, and that this would cause your children stress. Ms YC said that these persons never harmed you physically, but that they verbally attacked you by saying: if you do not pay, then we know where your children’s school is.

   ·     

   At the 20 November 2023 Tribunal hearing, Ms YC was asked whether you could seek assistance from the police in response to such threats, and she said you could not because you were in the wrong because you owed money. Asked whether she could provide any evidence of the debts she said she could not because the only documentary evidence of this were “I owe you” documents written by Mr YZ and given to Mr L and

   
   

   Mr A. Asked whether Mr L and Mr A had ever taken any legal action to recover the debt, Ms YC said they had not because it involved a lot of money and, even if legal means were used, she and Mr YZ could not repay the debt.

   ·     At the 20 November 2023 Tribunal hearing, Ms YC asserted that in China the government knew she was a member of a Christian church, and because of this the government prevented her and Mr YZ from getting a loan. Asked how she knew this, she said that all that she knew was that her husband applied for a loan and did not get it. Asked when the loan application was made, and the name of the bank applied to, she said she did not know because her husband handled such matters. Asked if the bank gave her a reason for declining the application, she said she did not ask.

   ·     At the 20 November 2023 Tribunal hearing, Ms YC indicated that Ms SZ and Mr XZ were both attending school up to the point at which you departed China for Australia.

10. The Tribunal put it to the applicants that the above information was at odds with the written claims which had been made by Ms YC in their April 2018 protection visa application. In that application, Ms YC had submitted that in China: officials’ disruption to our business had made us inability to meet the repayment obligation; and: The lenders had assaulted our family; and: The authority will decline a certificate to operate a business; you were: forced to close our shops and to pay large fine; and: My husband was detained when he protested against the officials; and: We had been assaulted and harassed by the private lenders; and: Our children were in fear of attending school; and: The authority could not help us because of our religious faith and practice; and that you did not try to move to another part of the country because: officials in all levels of government have concordantly suppressed and persecuted the dissidents.

11. The Tribunal noted that in contrast to the April 2018 claims, at the 9 November 2018 Department interview, and at the 20 November 2023 Tribunal hearing, Ms YC gave no indication that Mr YZ had been arrested or that any of the applciants had any interest in dissident behaviour, or that the government had forced them to close their business and pay a fine, or that they had ever had any trouble obtaining a business certificate, or that they feared not being able to obtain such a business certificate in the future, or that you were ever assaulted by creditors; and given all this the Tribunal might not be satisfied that any such events occurred, or that they would face a real chance of persecution or a real risk of any harm on any such basis if they were to return to China.

12. Further:

    ·     At the 9 November 2018 Department interview, and at the 20 November 2023 Tribunal hearing, Ms YC gave no indication of any specific ways in which the government or in which officials had disrupted your business, other than to cause your application for a loan to be declined because of her attending a Christian church. Further, when asked at the 20 November 2023 Tribunal hearing for details about this purported loan application she could provide none, nor could she provide details about the failure of the business more broadly, or of how debts were incurred, and her explanation for this was that she was not much involved in the business; whereas at the 9 November 2018 Department interview Ms YC expressly claimed to have been running the business.

    ·     Further, the claim that you owed money to creditors who regularly harassed and threatened you, and that you claim to fear harm from these persons, is difficult to believe given that at the 20 November 2023 Tribunal hearing Ms YC said that these persons took no legal action against you, nor did they ever cause you any physical harm, even though you never repaid any money to these persons and had been in debt to them since 2013. Further, it is difficult to believe that these persons threatened to harm your children at their school, given that at the 20 November 2023 Tribunal hearing Ms YC indicated that Ms SZ and Mr XZ both continued to attend school right up until you departed China for Australia.

    ·     At the 20 November 2023 Tribunal hearing, Ms YC asserted that on 15 January 2023 she received the following WeChat text message from Mr A’s wife: It has been so many years, how have you guys been overseas? So, whatever the circumstances can you give me a reply? This past few years because of Covid the business has been going tough. So, it has always been a loss because the money with you guys was money I owe Mr X and other guys, so every year approaching the year end we have been driven up the wall, so can you please give us a reply at you convenience? I wish you and your family peace and wellbeing abroad.

    ·     At the 20 November 2023 Tribunal hearing, Ms YC asserted that on 17 January 2023 she received the following WeChat text message from Mr A’s: I am wondering whether you couple have seen my message? Please reply, I have been waiting for your reply.

1. The Tribunal noted that the polite nature of these messages from Mr A’s wife appeared at odds with their claim that Mr A and Mr L had threatened them with harm, and that they feared they would suffer threats and harm from Mr A and Mr L if they return to China; and that subject to their comment or response, the Tribunal may not be satisfied that they had been threatened or harmed by these persons, or that they would face a real chance of persecution or a real risk of any harm from these persons if they were to return to China.

2. In response, Ms YC’s 6 January 2024 statement maintained that because she had been unable to repay the money she owed in China, she often received harassment and threats. She submitted that, even if she begged the police in China for help, they would not do so. She submitted that in China their creditors had often harassed and threatened her and her family, and this had caused huge psychological harm to her and her family, making them live in an environment of fear all day long. She submitted that because they had been in Australia for many years the debtors could not find them, and the only way they could do this was by WeChat and their purpose was to get the money back from them, and so this was why Mr A’s wife’s tone on WeChat was polite, but if they (the applicants) returned to China they would still face harassment and intimidation (at the November 2023 Tribunal hearing Ms YC responded similarly when it was put to her that Mr A’s wife’s were polite and not threatening, with Ms YC claiming that Mr A’s wife’s messages were polite because she (Ms YC) had not responded any such messages during the first few years after arriving in Australia). Ms YC’s 6 January 2024 statement also submitted that: Since we were in debt, we applied for a loan and sought help from the government; and: After investigating our family members, the government rejected our loan application.

3. I note, with regard to the above, that in her January 2024 statement Ms YC did not seek to maintain the claim made in her April 2018 written claims that her husband was detained when he protested against the officials, or the associated suggestion that he or other members of the family might be treated as dissidents; nor did she seek to maintain that the government had forced them to close their business and pay a fine, or that they had ever had any trouble obtaining a business certificate. I do not accept that the government forced the applicants to close their business and pay a fine, or that the applicants had ever had any trouble obtaining a business certificate. I do not accept that Mr YZ was ever detained, or that he ever protested against the officials, or that he or any of the applicant face a real chance of harm on this basis and/or as dissidents or perceived dissidents.

4. With regard to the matter of matter of the loan application I am willing to accept that Mr YZ sought help from the government by applying for a loan from one of China’s state-run banks (most of the major banks in China are state-owned),[37] and I am also willing to accept that this loan application was rejected after it was investigated in the sense that the loan application was assessed by the bank in question. But Ms YC has provided no documentary evidence, or even an explanation, which would establish why she considers that this involved an investigation of her and her family in a manner that took into account the religious beliefs of any of the family members. Moreover, the manner in which Ms YC’s evidence has unfolded strongly suggests that Ms YC’s claims about experiencing discrimination in China (on the basis of Christianity) are no more than assertions. As has been noted above, in 2018 it had been Ms YC’s claim that it was because of Christianity that the family business failed due to government interference and, because her and her family were Christians, they could not obtain help from police from the threats made by their creditors. But at the November 2018 interview she could not explain how any government actions affected the business, and at the November 2023 hearing there was no mention of government interference in the business at all (she instead claimed to know little about why the business failed), or that police would not assist them because they were Christian (instead Ms YC said police would not assist because in not repaying their debt she and Mr YZ were in the wrong), and when asked to explain how it was that she knew her being Christian had resulted in the refusal of a loan she could provide no such explanation.

   [37] Turner, G. et al, ‘The Chinese Banking System’, RBA Bulletin, September 2012,

5. Moreover, and as has already been discussed above, and while it has been reported that Christians can face some official discrimination in China, such evidence as there is of official discrimination against Christians in China is largely limited to how believers in any religion are ineligible for obtaining membership of the atheist Chinese Communist Party (CCP), such that they are also ineligible for any public sector jobs or government offices for which CCP membership is a requirement. According to Open Doors (a Christian advocacy group monitoring the persecution of Christians worldwide) it is rare for the government to pressure private employers to terminate contracts with religious believers.[38] It is not apparent from such reporting, or the broader country information, that Protestant Christians in China (who attend a registered TSPM church) face a significant level of discrimination with respect to matters like loan applications or private business operations or in any other regard. I do not accept that Mr YZ and Ms YC had a loan application refused in China for reasons related to Christianity, or that Christianity had anything to do with causing them business problems in China, or that they ever believed that the police in China would not assist them because family members had engaged with Christianity. 

   [38] Open Doors, World Watch List 2024: China’, pp.4, 6

6. With regard to the matter of what debts Mr YZ and Ms YC might have in China, and the absence of any evidence of any legal action being taken against them in this regard, Ms YC has submitted that there is no evidence of Mr L and Mr A taking any legal action to recover their debt because such an action would have been expensive, and because Mr L and Mr A knew the applicants did not have the money to repay them. The latter assertion is not persuasive. For, if it true that Mr L and Mr A have been asking the applicants to repay the debt then this in itself strongly suggests that Mr L and Mr A thought they could recover money from Mr YZ and Ms YC. With respect to the assertion that litigating debt recovery in China can be expensive I accept that this is true. But while this would explain why a creditor might not seek to recover a smaller amount in this way, it is difficult to believe that a creditor would not consider such a course of action worthwhile if the sum to be recovered amounted to RMB1,000,000 (around AUD200,000); particularly given that there are litigation debt recovery service providers in China which can assist litigants with the up-front costs of pursuing legal action of this kind.[39] What is more, action of this kind would have enabled such creditors to make use of such evidence as an “I owe you” and any WeChat correspondence history about the debt (such correspondence is reportedly made use of in debt recovery litigation in China),[40] and all of this would have put further pressure on the applicants to pay back the money in the future, and could even have been used to seize any of the applicants’ remaining assets.[41]

   [39] Buren China Law Offices, ‘A Guide to Debt Collection in China’,

   [40] Buren China Law Offices, ‘A Guide to Debt Collection in China’,

   [41] Wenfei Law, ‘China Legal Report’, April 2014, ; Buren China Law Offices, ‘A Guide to Debt Collection in China’, ; Yu, M. ‘How Does Debt Collection Enforcement Work in China?-CTD 101 Series’, China Justice Observer, 8 June 2022, ;

7. I note, moreover, the even though the applicants have now had a full opportunity to provide all the information and evidence they can about how the  [business] accumulated such debts. At the November 2024 hearing Ms YC submitted that she was unable to explain how the business had come to accumulate such large debts because all of this was handled by her husband. He has now had the opportunity to explain all this by replying to the Tribunal’s 14 December 2023 invitation, and Ms YC has now had the opportunity to concult with Mr YZ about this matter. Even so, no further information has been provided to explain how it was that the [] business came to generate debts to fellow business partners which amounted to RMB1,000,000 (some AUD200,000), let alone any documentary evidence of this, or even any documentary evidence that such a business existed. The only additional information that Ms YC conveyed in this regard is that the business was named the [name], and that when she and her husband stopped operating this business the business licence was cancelled. I am willing to accept that such a business did exist, and that once they ceased to operate the business its licence was cancelled because it was no longer operating but, given the lack of any detail as to how a debt of RMB1,000,000 was accumulated, it is difficult to be satisfied that such a large debt existed. I am not satisfied that Mr YZ and Ms YC have a debt to Mr L and Mr A which amounts to anything like RMB1,000,000. The most I can accept in this regard is that Mr YZ and Ms YC owe a much more modest amount of money to Mr L and Mr A.

8. In her January 2024 statement Ms YC has maintained that she and the family will be harmed by their creditors if they return to China. As at the Tribunal herring, she has submitted that Mr A’s wife’s text messages are polite and non-threatening because now that the family has moved to Australia their creditors cannot find them. I accept that it is plausible that in such circumstances a creditor who had been adopting a threatening posture might adopt a more friendly tone but, even so, such polite text messages do not establish that the applicants were ever threatened with harm. Overall, I consider that the manner in which the evidence about this has unfolded suggests exaggeration. The April 2018 written claims included an assertion that the lenders had assaulted the family, but at the November 2023 Tribunal hearing Ms YC said the family were never physically harmed by their creditors, but they did verbally attack the family. It has been asserted throughout that the creditors threatened to harm the children at their school, and at the November 2023 Tribunal hearing both Ms YC and Ms SZ submitted that the creditors would come to their house and that there would be threats and shouting and that the family were all very stressed and scared; but as has been noted above: Ms SZ and Mr XZ both continued to attend school right up until when they departed China for Australia, and the family continued to reside at the same address in [City 1]. In her January 2024 statement Ms YC has submitted that the threats made by the creditors caused huge psychological harm to her and her family; but I note that no medical or other documentary evidence has ever been provided to establish that any of the applicants were ever caused any psychological harm by their dealings with Mr L and Mr A.

9. I am willing to accept that between 2013 and the applicants’ April 2017 departure from China there may have been some arguments at the applicants’ home, and also on the telephone, between Mr YZ and Ms YC on the one hand, and Mr L and Mr A on the other, with respect to money owed by Mr YZ and Ms YC to Mr L and Mr A. I am willing to accept that this may have included some shouting which caused Ms SZ and Mr XZ (who at that time were both still children) to feel scared, and that it may have caused some stress among the family more broadly. But given the concerns I have noted above I am not satisfied, and I do not accept, that these events caused the applicants any psychological harm in the manner of any ongoing mental health issues, or that Ms SZ and Mr XZ were in fear of attending school on this basis in China, or that the family considered themselves to be at risk of physical harm from Mr L and Mr A, or that any threats of harm against the family were made or implied by Mr L and Mr A (or by Mr A’s wife).

10. At the November 2023 hearing Ms YC indicated that since arriving in Australia she and her husband had been working (Ms YC indicated she had been working as a shop assistant while her husband had both been [working); while her son was now also working with her husband, and Ms SZ was working in [a field]) and that she and her husband had repaid other debts which they owed, with the creditors in these instances being relatives of Mr YZ. Ms YC submitted that she and Mr YZ had not yet been able to repay any money to Mr L and Mr A. While it may be the case that Ms YC and Mr YZ have thus far prioritised repaying Mr YZ’s relatives, I find it difficult to believe that Mr YZ and Ms YC would not now take steps to begin repaying their debts to Mr L and Mr A. But even if they did not, I am not satisfied that this would result in the applicants facing a real chance of serious harm on this basis on return to China given that no harm ever came to the applicants in this regard over the years prior to their April 2017 departure for Australia, and given the absence of any compelling evidence that Mr L and Mr A and/or Mr A’s wife intend the applicants any harm.
    I can accept that after returning to China, and if the debt remained unpaid, that Mr YZ and Ms YC might receive some communications and visitations from Mr L and Mr A (and Mr A’s wife) who might request that Mr YZ and Ms YC repay the money owed. I am willing to accept that this might involve some arguing and even some shouting from Mr L and Mr A (and Mr A’s wife). But on the evidence before me I am not satisfied that there is a real chance that this would escalate to a point where this resulted in the infliction of significant physical or psychological harassment, or some other kind of serious harm, upon Mr YZ and Ms YC, let alone upon Ms SZ and Mr XZ. Neither am I satisfied that such a situation would involve systematic and discriminatory conduct, or that it would occur for one the reasons required by s.5J(1)(a); and I am not satisfied that there is a real chance that any of the applicants would be otherwise harmed, or even threatened with harm, by Mr L and Mr A and/or Mr A’s wife. I am therefore not satisfied that the applicants have a well-founded fear of persecution in this regard.

11. I note also that, while DFAT is not able to verify the treatment of failed asylum seekers returned to China, it has no information to suggest that they are targeted by authorities merely for having sought asylum.[42] DFAT reports that Chinese authorities are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China, but I note that the kind of behaviour abroad which has attracted adverse attention upon return has been limited to matters such as public activism or journalism with respect to sensitive ethnic, political and security issues, or involvement in certain religious groups categorised as xie jiao (that is, such groups as are referred to as dangerous cults), or associations with certain minority ethnic groups.[43] The applicants have not had any such involvements or associations, and the evidence does not indicate that the Chinese authorities would have any adverse interest in the applicants for reason of their having engaged with mainstream protestant churches such as methodist and gospel churches while in Australia, or because of their debts to Mr L and Mr A. Given this, and considering the applicant’s circumstances in their totality, including what their situation would be in terms of being Christians who would engage in worship and activities with the [City 1] Gospel Church and occasionally (with respect to Ms YC when visiting her mother) at another registered church in Fuqing, and taking into consideration also their concerns with regard to their creditors, and their circumstances more broadly, I am not satisfied that the applicants would for the foreseeable future face a real chance of suffering any serious harm were they to return to China. I am therefore not satisfied that the applicants have a well-founded fear of persecution.

    [42] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210, 5.28.

    [43] DFAT, 'DFAT Country Information Report: China', 22 December 2021, 20211222100210,5.28-5.29, 5.32, 5.40, 4.15; Safeguard Defenders, 'Families In Fear: Collective Punishment in 21st Century China', 10 December 2023, 20231211114552; Canada IRB, 'China, India, Nepal: Situation and treatment of Tibetans in China; treatment of returnees to China, including returnees from India and Nepal (2017–October 2020)', 6 October 2020, 20201027094610; 'How China abuses the Interpol Red Notice system to persecute Uyghurs', The China Project, 27 April 2023, 20230502162156.

12. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

13. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

14. As has been noted above, I accept that if Mr YZ and Ms YC returned to China without having repaid their debt to Mr L an Mr A it is possible that this may result in Mr YZ and Ms YC receiving some communications and visitations from Mr L and Mr A (and Mr A’s wife) in which they make requests to Mr YZ and Ms YC to repay the money owed, and that it is possible this could result in some arguing and some shouting from Mr L and Mr A and/or
    Mr A’s wife, but I am not satisfied that there is a real risk that this would result in the applicants suffering the kind of pain or suffering, whether physical or mental, which is required in order to amount to either torture, or to cruel or inhuman treatment or punishment. Neither am I satisfied that there is a real risk that this would result in the applicants suffering the kind of extreme humiliation which is required in order to amount to degrading treatment or punishment. Neither am I satisfied that there is a real risk that this would result in the applicants being arbitrarily deprived of their lives or suffering the death penalty.

15. I accept that as Protestant Christians in China the applicants would be ineligible to obtain CCP membership, and that access to employment or political offices for which CCP membership is a requirement would not be obtainable by them. But the applicants have given no indication that they have any interest in obtaining CCP membership or any specific public sector positions or political offices for which CCP membership is a requirement; and given this I am not satisfied that there is a real risk that this would result in the applicants suffering the kind of extreme humiliation which is required in order to amount to degrading treatment or punishment. Neither am I satisfied that there is a real risk that this would result in the applicants suffering the kind of pain or suffering, whether physical or mental, which is required in order to amount to either torture, or to cruel or inhuman treatment or punishment. Given the broader availability of other kinds of employment in China (and given the very limited evidence of Christians facing problems in finding private employment) I am not satisfied that there is a real risk that the applicants would be unable to earn a livelihood of any kind such as would threaten their capacity to subsist. I am not satisfied that there is a real risk that this would result in the applicants being arbitrarily deprived of their lives or suffering the death penalty. I accept that (if the applicants were to practise Christianity upon return to China) they might face some occasional low level societal discrimination such as being mocked by others. But I am not satisfied that there is a real risk that this would occur in a manner the kind of extreme humiliation which is required in order to amount to degrading treatment or punishment. Neither am I satisfied that there is a real risk that this would result in the applicants suffering the kind of pain or suffering, whether physical or mental, which is required in order to amount to either torture or to cruel or inhuman treatment or punishment. Neither am I satisfied that there is a real risk that this would result in the applicants being arbitrarily deprived of their lives or suffering the death penalty.

1. I am otherwise not satisfied that the applicants would face a real risk of harm of any kind for any of the reasons they have raised or for any other reason in China. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, there is a real risk that any of the applicants will suffer significant harm.

2. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

3. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

4. The Tribunal affirms the decisions under review.

   Date of hearing:   20 November 2023

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …