1913107 (Refugee)

[2021] AATA 637

1913107 (Refugee) [2021] AATA 637 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913107

COUNTRY OF REFERENCE:                   China

MEMBER:Peter Vlahos

DATE:21 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 21 January 2021 at 10.18am

CATCHWORDS

REFUGEE – protection visa – China – religion – Local Church (Shouters) – church gathering in applicant’s house – police raid, detention, interrogation, assault and warning not to continue activities – credibility – evidence lacking in detail and substance – issued with and departed on own passport – no corroboration of claimed church membership and actvity in Australia – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997)191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1995) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 8 January 2019. The delegate refused to grant the visa on the basis that the Application for Protection visa did not satisfy subsection 36(20 of the Act.

3. The applicant made an application to the Tribunal to review the delegate’s decision on 26 May 2019.

4. The hearing of the Application to review was held with the consent of the applicant by telephone on 26 November 2020.

5. The applicant was assisted by an interpreter in Mandarin and English languages.

6. The applicant was not represented at the hearing by a registered migration agent or by a solicitor.

7. The applicant provided no written statement s from witnesses, nor any witnesses were made available to the Tribunal to be heard and examined.   

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

9. 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.

10. 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).

11. 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.

12. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether Australia has protection obligations in respect of the Applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of origins and personal identity of the applicant

15. Based on copies of the applicant’s passport, which was provided to the Departments of Immigration and Home Affairs (the ‘Departments’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Peoples’ Republic of China (‘China’) and his claims have been assessed against that country in relation to s.36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as a citizen of the PRC as he has claimed.

    Department’s file

16. The Tribunal has before it the Departments’ file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with his application for review.

    Background of the Applicant – migration history

17. The applicant arrived in Australia [in] January 2019 as the holder of Visitor visa. He subsequently applied a Protection visa on 8 January 2019 which was refused by the Department and the subject of this review. He was also issued with required Bridging visa.

    The applicant’s background – Personal

18. [The applicant] is a [Age 1]-year-old male who was born in Fujian province, China, where he resided there until his departure for Australia in 2019. He has family living in China which consists of his elderly parents, a brother and his wife and two [children] (aged [Age 2] and [Age 3] years). He has been married for the past eight years. While in China, the applicant was employed as a ‘manager’ of a local [retail] outlet (selling [product]) and received a wage of approximately Y20,000.00 annually.

    The applicant’s claims for Protection

19. The applicant’s main claims for protection can be summarised as follows:

    ·He had been an active member of the Local Church in China, labelled by the Chinese authorities as an “evil cult” and the “Shouters”.

    ·The Local Church members conducted secretly their local church gatherings to avoid being discovered by the Chinese authorities.

    ·[In] October 2018, he arranged a local church gathering in his family house, when police officers raided his house and detained the church members.

    ·He was detained in Fuqing Detention Centre for 7 days.

    ·He was interrogated, assaulted and abused.

    ·He was warned of further punishment and prison detention, if he were to continue to attend local church activities in China.

    ·Once he arrived in Australia, he joined the Local Church in Melbourne.

20. The Tribunal asked the applicant whether he wished to add, vary or change any part of his claims and the applicant informed the Tribunal he had no further claims to make.

    EVIDENCE AT THE HEARING

21. The applicant told the Tribunal that he was made a member of the ‘Local Church’ when he was a small child having been inducted into the Church’s practices by his parents. The applicant described his family background as being one that was a ‘religious family…’

22. When asked by the Tribunal to elaborate what he meant by a ‘religious family’ the applicant said that his parents – mother and father- were ‘…Christians…’

23. The applicant said that he was ‘baptised…’ when he turned [age]-years-of-age.

24. The applicant described his ‘baptism…’ as being in the presence of a ‘church elder…and other worshipers…’ and had his ‘head placed into the water…’ while the ‘elder…’ and ‘others present…’ ‘prayed for me …’ (the applicant).

25. The applicant said that attended Church with his parents. His attendance at church was carried out on Wednesdays and Sundays.

26. The applicant described the ‘Wednesday meetings of the church…’ as a ‘prayer gathering…’ All members of the church would gather and pray as group.

27. The applicant described the mode of prayer as follows; the group would pray aloud “…Oh Lord, I pray to you. You are the Son of God – the ‘Saviour’.

28. The applicant described the ‘Saviour’ as ‘Jesus Christ…’

29. The applicant told the Tribunal that ‘Jesus Christ’ was the ‘son of God…’ and a ‘…holy person…’ His mother (Jesus’) was the woman called ‘Mary…’

30. The applicant said that when he (Jesus) was thirty (30) years of age, he was baptised and he began to preach the ‘word of God’ to people around him and in ‘three years’ he did a lot of good to people. Then, he was betrayed, tortured and suffered and died. After three days he rose from the dead and then ‘went to heaven’.

31. The applicant added that ‘Jesus died to save people from sins’ and ‘that he sits at the right of the father…’

32. The applicant said that these ‘religious meetings…’ were held at an ‘elder’s house’ where approximately ten persons attended. The holding of meetings was made by word of mouth, according to the applicant. That is, members of the church would inform other members of the time and place of the meeting of the congregation.

33. Then, according to the applicant, at these meetings the assembled would ‘observe religious videos’ and ‘share individual experiences…’

34. The mode of prayer at these meetings was described by the applicant – as ‘loud…’ The applied always prayed loudly.

35. The applicant stated that Local Church Christians referred to a reference - to the ‘Recovery Bible’ which had its origins attributed the Local Church’s founder ‘Robert Lee’.

36. The applicant also said that Local Church followers did not celebrate any religious festivals or anniversaries.

    The incident of [October] 2018

37. The applicant stated that [in] October 2018, a family meeting was held by his church which he attended together with another twenty (20) people. Then, while the meeting was being held, the house was surrounded by local police who proceeded ‘by force’ to ‘break up the meeting.’ Also, the police took with them once the meeting was forcibly ended - all books and materials in the possession of the local church.

38. The police, the applicant said, considered the meeting as ‘illegal’ and as ‘…an attempt to disrupt public order…’ The applicant for his part, was apprehended, taken to the local police station – held there for seven (7) days and interrogated. After seven days the applicant was released.

39. After his release, the applicant was warned that he was not allowed to attend meeting of his Local Church and if he did to do so, he would be again detained.

40. The applicant said that being a ‘devout Christian’ he continued to attend various church meetings when told they were being held but the fear of being discovered and imprisoned was always on his mind and this ‘fear’ made him decide to ‘leave China’ for Australia.

41. The applicant then made an application for a visa to come to Australia – which he was provided with and was provided with a passport.

42. In his absence and while being in Australia, the applicant’s family had been harassed by the local authorities – asking them about his whereabouts. The applicant also told the Tribunal that the local authorities warned his family not to attend anymore church meetings. Nevertheless, the family (according to the applicant) are attending clandestine church meetings.

43. The applicant told the Tribunal that while in Australia he was attending Local Church meetings and gatherings. He told the Tribunal that he attended a church gathering regularly in [Suburb], Victoria (once a week). The Tribunal requested from the applicant to provide details of his church congregation, church location and (if possible) to provide a letter from his church’s elders with regards to his religious activities with them.

44. The applicant was provided with seven (7) days to provide this information to the Tribunal.

45. The applicant was also asked to explain to the Tribunal in detail his ‘detention’ by the local Fujian authorities. In response, the applicant drew the Tribunal’s attention to a copy of a ‘detention certificate’ (uncertified) which he had been issued and told the Tribunal that he was interrogated by the authorities about his activities and involvement with his church group and then was released with a warning that such activities should not be repeated.

46. The applicant was also asked to explain – how he was able to receive a visa and passport from the local Fujian authorities to leave China for Australia when he was a ‘person of interest’ to the same authorities that had detained him. The applicant said that he ‘was allowed to leave (with passport and visa) for Australia because his matter had finished…’

47. The applicant was asked by the Tribunal – if his issues with the local authorities in Fujian had ‘finished’ as he claimed, why was he ‘afraid’ to return to China? The applicant said that the authorities in China ‘do not like the Local Church…’ He also said that he was a ‘devoted Christian’ and believes he can be better served for his religious beliefs in Australia and not in his homeland, China.

    What the applicant is doing in Australia?

48. The applicant said that he is employed – working on [Work sector] sites around Melbourne earning approximately AUD$500.00 per week. This employment has been for the past year. The applicant also said that part of the money he earns, he sends to his family in China to assist them with their daily needs and expenses.

49. The applicant told the Tribunal it was his ‘wish’ to stay in Australia so that he can feel safe and be able to exercise his freedom to worship his belief in God.

50. The Tribunal informed the applicant that it required information from his church on Church letterhead and written by the church’s administration recording the applicant’s attendances and other ‘church’ activities he may have participated with others at his church. The applicant was provided with seven days to provide this information to the Tribunal. The applicant agreed to provide this information in the time frame the Tribunal outlined for a response to be made.

    Post-Hearing submissions to the Tribunal by the applicant

51. On the 2 December 2020, the applicant provided Statutory Declaration which provided the following information:[1]

    [1] see AAT File, Applicant’s statutory declaration dated 2 December 2020.

    ·The Applicant is married with two children and his family resides in China.

    ·He arrived in Australia as the holder of a visitor visa [in] January 2019.

    ·He lodged a Protection visa (subclass 866) because he had personally experienced significant harm and persecution by the CCP because he was ‘practising’ his religious beliefs while living in China.

    ·He was arrested and detained by the Fuqing Public Security Bureau officers as a result of arranging a local family church gathering at his family home [in] October 2018 and was detained at the Fuqing Detention Centre for seven (7) days.

    ·He was (while in detention) interrogated, assaulted and abused and he suffered physically and emotionally.

    ·Fearing further persecution by the authorities, the he organised with an agent a visitor visa in order to leave China and to come to Australia.

    ·He is a ‘devoted local church member both in China and in Australia’.

    ·Due to the Covid-19 Pandemic, he has been attending his ‘church gatherings’ ‘online’ since March 2020.

    ·He tried to contact his Church in Melbourne to obtain a certificate from the Church supporting him and his claims for protection. He was told by church elder that ‘they’ (the congregation) was meeting online for the past nine months. However, it was ‘very difficult’ for the Church elders to ‘write a letter’ because ‘hundreds of church members’ were joining online and ‘it was very difficult to pinpoint who was attending’ church gatherings in Melbourne.

    ·He joined the Church (Local) in Melbourne in early January 2019, after he arrived in Australia.

    ·The Church in Melbourne is similar to the church in China where the CCP (Chinese Communist Party) proclaimed the church as “shouters” or “evil cult”.

    ·The Local Church is ‘banned’ across China and ‘remains on the top list of the 14-government banned evil cults in China.’

    ·He is a ‘devoted Local Church member in Australia’ and he will remain a ‘member of the Church in Melbourne.’ If he returns to China, he will continue to practise his religion and belief as the Local Church instructs. Therefore, he believes that he will again encounter ‘further difficulties with the Chinese authorities’.

52. The applicant also provided as an “attachment” to his statutory declaration certain photocopies of the Reform Bible used by him as he claimed.

    COUNTRY INFORMATION – CHINA – RELIGIOUS FREEDOM – THE STATE – AND THE LOCAL CHURCH

53. The following country information which follows is derived from Department of Foreign Affairs and Trade Country Information Report – PRC, October 3, 2019.

54. China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.

55. In 2018, the Government attempted to regulate religious groups to prevent challenges to CCP and Government control. As religious observance has grown, the CCP has increased oversight and worked to tighten control over state-sanctioned religious organisations. Nevertheless, despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials in some localities are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).

56. It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).

1. It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).

2. It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).

3. It is difficult to provide exact figures on the number of religious believers in China. In 2018, the government released a white paper on China’s Policies and Practices on Protecting Freedom of Religious Belief (CPPPFRB white paper). This states the major religions practiced in China are Buddhism, Taoism, Islam, Catholicism and Protestantism, and religious believers total almost 200 million (including more than 380,000 clerical personnel). The white paper also notes the majority of 10 of China’s ethnic minorities, totalling 20 million people, follow Islam (around 57,000 clerical personnel); 6 million follow Catholicism (8,000 clerical personnel); and 38 million follow Protestantism (57,000 clerical personnel).

   Religious activity in Fujian Province

4. While a wide variety of religions are practised across China, they are generally able to thrive to a greater degree in Fujian province (Fujian). This is largely due to Fujian’s ethnic and linguistic diversity and historical geographical isolation from other parts of China. However, Fujian’s links with other areas of China increased following the mid-1950s completion of a railway line that connected Xiamen to other areas of China.

5. Fujian, home to only 2.8 per cent of the Chinese population, is located in the southeast of the People’s Republic of China, bordered by Zhejiang Province to the north, Jiangxi Province to the west and Guangdong province to the south. Its main cities are Fuzhou, Xiamen and Quanzhou, which are all located along or close to the coast facing the Taiwan Strait. Quanzhou linked Tang dynasty China (618 – 907) with Southeast Asia through trade and shipping.

6. Because of poverty and poor agricultural productivity, Fujian residents have a long history of emigration to Southeast Asia and, in more recent times, to the United States, Europe, Australia and Africa. Fujian is the historic ‘hometown’ of many overseas Chinese and in 2017 there were an estimated 15.8 million people originating from Fujian residing across 180 countries and regions overseas. The historical willingness of people from Fujian to travel overseas continues in 2019.

7. DFAT assesses that individuals in Fujian have historically practised religion more freely within state- sanctioned boundaries than in other parts of China, as long as practices do not challenge the interests or authority of the Chinese Communist Party. However, DFAT assesses religious control in Fujian has incrementally tightened, albeit from a looser base, in line with the rest of the country.

   Government response to religion

8. Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above (Protestants must be non-denominational). These organisations must be independent of foreign associations (for example, the Vatican).

9. Article 36 of the Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law. According to China’s 2018 CPPPFRB white paper, every citizen ‘enjoys the freedom to choose whether to believe in a religion; to believe in a certain religion or a denomination of the same religion; to change from a non-believer to a believer and vice versa. Believers and non-believers enjoy the same political, economic, social and cultural rights, and must not be treated differently because of a difference in belief.’ However, Article 36 of the Constitution also states that no one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. This is enforced by Chinese public security officials who monitor registered and unregistered religious groups.

10. Historically, the CCP’s United Front Work Department (UFWD), State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provided policy guidance and supervision on the implementation of the regulations. However, in 2018 the CCP moved religious affairs under the direct purview of the UFWD, and thus the CCPs Central Committee. To ‘ensure centralised and unified leadership,’ the UFWD absorbed SARA and has direct oversight of the State Ethnic Affairs Commission and the Overseas Chinese Affairs Office and has been elevated to a level of importance not seen since 1949.

11. The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA). In April 2017, President Xi called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members from belonging to any religion. In September 2017, the State Council approved revisions to the 2005 RRA, which came into effect on 1 February 2018. The RRAs devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. Local authorities have significant discretion in interpreting and implementing the regulations at the provincial level.

12. The 2018 RRAs ‘protect citizens’ freedom of religious belief, maintain religious and social harmony and regulate the management of religious affairs,’ and give state-registered religious organisations rights to possess property, publish literature, train, and approve clergy, collect donations, and proselytise within (but not outside) registered places of worship and in private settings (but not in public). Government subsidies are also available for the construction of state-sanctioned places of worship and religious schools.

13. According to the State Council, the RRA also ‘curb and prevent illegal and extreme practices,’ and emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists. The RRAs: restrict religious education in schools; restrict the times and locations of religious celebrations; impose fines for organising illegal religious events or fundraising; detail procedures for approval and monitoring of religious training institutions and monitoring online religious activity; detail a requirement to report all donations over RMB 100,000 (AUD 20,750); prohibit registered religious organisations from distributing unapproved literature, associating with unregistered religious groups, and accepting foreign donations (previously permitted); and prohibit foreigners from proselytising. Parallel provisions in the Foreign NGO Law also prohibit foreigners from donating funds to Chinese religious organisations or raising funds on their behalf.

14. The devolution of enforcement of the RRAs to local government and Party authorities also affects unregistered Christian churches. Historically, those involved with unregistered churches could be charged with fraud. However, under the RRA it is now considered a crime to organise people for the purpose of religion (with a particular focus on the organisers).

15. Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. While practice of non- recognised faiths or by unregistered organisations is illegal and vulnerable to punitive official action, it is, to some degree, tolerated, especially in relation to traditional Chinese beliefs. Nevertheless, restrictions on religious organisations vary widely according to local conditions, and can be inconsistent or lack transparency, making it difficult to form general conclusions.

16. Religious practice that the government perceives as contravening broader ethnic, political or security policies (for example, see Uighurs and Muslims) is at high risk of adverse official attention. China has one of the largest populations of religious prisoners, estimated in the tens of thousands. Human rights groups claim, but DFAT cannot verify, that some religious prisoners are tortured and killed in custody. Since 1999, the US State Department has annually designated China as a country of particular concern for religious freedom due to continued reports of arbitrary detentions and violence with impunity.

17. Members of religious groups claim government authorities continue to press to install CCTV at all religious sites, and failure to comply can lead to authorities cutting power and water, or restricting rental space to pressure compliance. According to media, in April 2018, the Zion Church in Beijing (one of Beijing’s largest unofficial Protestant house churches) refused a request from government authorities to install 24 CCTV cameras, including in worship areas, for security purposes. Churchgoers were reportedly harassed by police and state security officials at their homes and places of employment, and the Zion Church was evicted by its landlord

18. Regulations prohibiting proselytising are generally enforced across Chinese cities. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). In Rongcheng, Shandong, an Social Credit System (SCS) pilot area (see The Social Credit System and Security Situation), residents of First Morning Light, a neighbourhood of 5,100 families, have taken the official Rongcheng SCS pilot a few steps further and introduced their own SCS penalties for ‘illegally spreading religion.’ DFAT is aware of reports of foreigners, including religious missions, being refused entry at churches due to pressure from local authorities.

19. DFAT assesses an individual’s ability to practise religion can be influenced by whether the individual exercises faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the CCP to be closely tied to other ethnic, political and security issues.

20. While the Constitution and 2018 RRA allow for sanctioned religious belief, DFAT assesses adherents across all religious organisations – from state-sanctioned to underground and/or banned groups - faced intensifying official persecution and repression in 2018, which continues in 2019. However, DFAT assesses that as Buddhism (as compared to Tibetan Buddhism) and Daoism are part of China’s cultural heritage and are not associated with foreign influence, believers are unlikely to experience significant restrictions.

    Christians in China

21. China has seen a significant growth in Christianity since the 1980s. In 2010, the Pew Research Center estimated there were 67 million Christians in China (58 million Protestant, including both state-sanctioned and independent churches). However, 2018 estimates had grown closer to 100 million (unregistered churchgoers outnumber members of official churches nearly two to one).

22. In addition to state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA historically permitted friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Independent churches, otherwise known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand participants/attendees.

23. There has been an increase in state control of both registered and unregistered churches in recent years, including targeted campaigns to remove hundreds of rooftop crosses from churches, forced demolitions of churches, and harassment and imprisonment of Christian pastors and priests. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinise churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teachings.

24. Leaders of both registered and unregistered churches are also subject to greater scrutiny than ordinary worshippers are, and leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice.

25. Religious NGOs claim that, while pressure on Christian groups differs from province to province, a trend of increased pressure on Christian groups normalised across provinces in 2018. Authorities apply pressure to Christian churches during monthly ‘tea’ meetings. According to media, authorities cracked down on Christmas celebrations in December 2018. Several cities, schools and government institutions issued instructions not to celebrate Christmas and to promote Chinese culture instead, and at least four cities and one county issued a ban on Christmas decorations. In Langfei, Hebei province, authorities ordered the removal of all Christmas decorations and stopped shops selling Christmas-themed products to ‘maintain stability.’ In Changsha, Hunan province, the education bureau issued a directive to schools not to celebrate ‘western festivals’ such as Christmas, and not to put up decorations, post related messages or exchange gifts. Nevertheless, DFAT notes Christmas decorations were still visible in some department stores in major cities across China.

26. In December 2018, police raided a children’s bible class in Guangzhou, and shut down the Early Rain Covenant Church in Chengdu, arresting 100 members and keeping others under close surveillance in December 2018. In September 2018, one of China’s largest underground churches, Beijing Zion Church, was shut down. Members of the Early Rain Covenant Church were detained by authorities in June 2018 due to plans to hold a prayer service to mark the anniversary of Tiananmen Square and, in May 2018, due to plans to hold a prayer service to mark the tenth anniversary of the Sichuan earthquake.

27. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work, or liaise with registered churches, in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.

28. DFAT assesses members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families. DFAT assesses the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith.

    Other groups including ‘cults’

29. The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.

30. In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.

31. Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.

    SHOUTERS

32. The Shouters (also known as ‘Yellers’, ‘Local Church’, ‘Recovery Church’, ‘Assembly Hall’ and ‘Assemblies’) are a Chinese offshoot of Watchman Nee's Little Flock led by Nee's student, Changshou Li, otherwise known as ‘Witness Lee’. The Shouters were created in the US in 1962 and introduced to China in 1979. Witness Li created a ‘Recovery Bible’ by annotating the standard Bible and claimed that the gift of tongues could be taught, and that salvation could be had by saying ‘O Lord’ three times. The Shouters are named for their practice of stamping their feet while shouting as part of their worship. By 1983, the group had up to 200,000 followers across China.

33. The CCP targeted the Shouters in the early 1980s as counter-revolutionary, and the Shouters splintered into several groups including Eastern Lightning. DFAT is unable to verify the extent to which Shouters remain active in China.

    ‘EASTERN LIGHTNING CHURCH’ – cult

1. The Chinese government listed Eastern Lightning, an offshoot of the Shouters, also known as ‘The Church of the Almighty God (COAG)’, ‘The Congregation’, ‘Oriental Lightning’, ‘Seven Spirit Sect’, ‘Second Saviour Sect’, ‘True Light Sect’, ‘True Way Sect’, and ‘New Power Lord's Church’ as a banned xie jiao (cult) in November 1995. According to Chinese government statistics, COAG had four million members in 2014. However, COAG claims more than a million followers in a seven-level hierarchy. DFAT is unable to verify the number of COAG members practising in China.  Chinese government sources claim most members   are uneducated rural women aged around 50 years. However, academics suggests COAG membership also includes middle and upper class, Chinese males and females.

2. Zhao Weishan, a physics teacher from Henan province who later fled to the United States, is claimed to have founded COAG in 1989. However, academics note COAG members have denied Zhao was their founder, and some claim a small community existed before Zhao’s involvement. COAG adherents believe Jesus returned to earth and was incarnated as ‘Almighty God,’ a living person, sent ‘to bring the fullness of truth to purify and save humankind.’ Most of ‘Almighty God’s’ utterances are collected in the book ‘The Word Appears in the Flesh.’ COAG members also believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will save them from impending apocalypse. According to the COAG movement, ‘Almighty God’ came to inaugurate the third and final age of humanity, the Age of Kingdom, which follows the Age of Law (the Old Testament) and the Age of Grace (of Jesus).

3. There is no formal liturgy in the COAG movement, nor sacraments or eucharist, as these are viewed by members as practices of the Age of Grace, not the Age of Kingdom. However, academics report COAG has a structural church system, with local and international leaders, and claim gathering is important to COAG members, who worship by meeting and discussing their understanding of ‘Almighty God’s’ words, listening to sermons and singing hymns.

4. Although the movement never mentions the name of ‘Almighty God,’ nor any specific biographical details, academics believe ‘Almighty God’ identifies a Chinese woman known as ‘lightning Deng’ (Yang Xiangbin, the wife of Zhao Weishan). In 2000, Zhao and Yang Xiangbin moved to the United States and led the movement from New York. Academics note members refer to ‘Almighty God’ as ‘Almighty God,’ and not by any civil name, nor by any specific gender.

5. COAG reportedly encourages members to break away from family, although academics claim the accusation that COAG’s theology is anti-family does not have any support in COAG’s scriptures, which teach that the family is part of Almighty God’s plan and reiterate Almighty God’s requirement to honour parents and be faithful spouses in the Age of Kingdom. COAG reportedly demands unconditional obedience from low-level believers.

6. Academics claim the movement has been severely persecuted in China, and many COAG members, including national leader Ma Suoping (1969-2009), have been arrested or killed. According to statistics claimed by the movement, more than 400,000 members have been arrested in China to date. Security agencies have arrested large groups of sect members in Qinghai, Guizhou, Ningxia, Henan, Hubei, Xinjiang, Anhui and Liaoning provinces in recent years. DFAT is unable to verify these claims; however, academics cite semi-weekly references in Chinese State media reports regarding anti-COAG campaigns and arrests. State media reports detail abductions; extortion; beatings; murder; seduction; and aggressive proselytising as part of the group’s practice of recruiting new members and punishing non-believers, including those seeking to leave the group.

7. In May 2014, six people, who the Chinese government claim were COAG members, reportedly beat a woman to death at a McDonald’s restaurant in Zhaoyuan, Shandong. Two of the six alleged perpetrators were executed in 2015. Three others received prison sentences of life, ten and seven years respectively for their roles in the attack. The sixth was a minor aged 12. The McDonald’s case triggered an official crackdown on ‘cult’ organisations. Academics claim the McDonald’s murder was not conducted by COAG, but instead perpetrated by an unrelated, but similar religious movement. Zhang Fan, a leader of the movement linked to the McDonald’s murder, denied she had ever been a member of COAG, but was executed in 2015.

8. Sources report the government’s efforts to crackdown on Christian ‘cult’ organisations aim to identify and punish the leaders, with disciples viewed as victims. COAG in Australia (which denies connection to the McDonald’s attack) claims Chinese security agencies have monitored, intimidated, detained and mistreated its members in China since 2011, and its Annual Reports detail several such instances. Such treatment would be consistent with government treatment of members of other banned organisations. Stigma associated with cults may make it difficult for members to find defence lawyers, and lawyers taking on their cases are often themselves targets of adverse attention by authorities.

9. DFAT is unable to verify the extent to which COAG is active in China.

   Passports and their issue by PRC

10. According to the Passport Law (2006), ordinary passport applicants must apply in person to the Entry- Exit Control Department of the Ministry of Public Security or the authorised county-level bureau where their hukou is registered. Applicants must provide their RIC, hukou, recent photos, and documents substantiating the reasons for their application. Once approved, a passport is generally issued within 30 days. If a passport application is refused, reasons for the refusal are provided in writing and the applicant is informed of their right to apply for administrative reconsideration or to file an administrative lawsuit. Costs of passports vary according to location but are considered affordable.

100.   Under the Passport Law, authorities can refuse passports to people who ‘will undermine national security or cause major losses to the interests of the State’. According to Freedom House, the government has refused passports to millions of people on these grounds, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish data on passport denials. DFAT is also aware security authorities have recalled and held Uighur and Tibetan passports.

Fraud in Fujian

101.   There is a well-established history of individuals from Fujian using fraudulent documents to obtain visas to Australia and other western countries. Fraudulent activity is supported by highly organised and well- resourced networks of agents and counterfeiters. High-risk documents include financial and employment records, which can be either fraudulent or altered. Organised immigration malpractice and syndicates selling immigration packages for visa applicants are active in Fujian. Syndicates have been known to alter identity documents such as passports or national identification cards to misrepresent the applicant’s place of birth (to avoid greater scrutiny of their applications). Sources report that applicants originating from Fuqing, Lianjiang and Pingtan have demonstrated particularly high rates of fraud and non-compliance.

FINDINGS AND REASONS FOR DECISION

102.   Before the Tribunal expands on its reasons in deciding the applicant’s claims it must point out that the mere fact a person claims fear of persecution for a particular reason or reasons that does not establish the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-make – the Tribunal in this instance, is not required to make the applicant’s case for him here. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim or claims. The Tribunal does not require to have any of the responsibility or obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: (see: MIEA v Guo (1997)191 CLR 559 at [596], Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1995) 6 FCR 155 at [169] – [170]).

103.   The applicant claims that he has been persecuted in China by the Chinese authorities because he is a member of the Local Church. While the available country information[2] indicates that genuine members of the Local Church in some circumstances are at risk of persecution in China, the applicant’s evidence as provided to the Tribunal (at the hearing) lacks the credibility to substantiate his claims of persecution for his religious beliefs.  

[2] Country Information, Department of Foreign Affairs and Trade (DFAT) – People’s Republic of China, 29 May 2018 OGD95BE927626.

104.   First, the Tribunal after considering the applicant’s evidence as far as it concerned his claim that he was a ‘Christian’ or ‘a believer’ in ‘Jesus Christ as the Lord’ and ‘Son of God’ is not disputed. The applicant in his evidence before the Tribunal spoke about belonging and having grown up in a ‘family that was Christian’ (see paragraph 22). He was ‘baptised’ when he was 18 years-of-age by a religious elder of his congregation and the description he provided of his ‘baptism’ is in line with the practises of his Church (see paragraph 23 and 24). He attended church services regularly with his parents – on Wednesdays and Sundays (see paragraph 25) and he would participate in ‘loud prayer’ with others in his church congregation (see paragraph 27). Second, the applicant provided an adequate understanding of his church group’s views on Jesus Christ and his ministry while on earth and made certain references to the ‘Recovery Bible’ which is used by the congregation in order to understand the basic teachings of their Church (see paragraphs 29, 30, 35 and 36).  He also told the Tribunal that his Church did not celebrate any religious festivals or anniversaries as other Christian groups do.

105.   Third, the applicant claimed that [in] October 2018, he held a family church meeting with members of his family and others which was discovered by the local Fujian City authorities and was forcibly broken up. He also claimed that he was then detained for a week and during his detention, he was threatened and beaten and was provided with a warning and then released into the community to continue with life (see paragraphs 37, 38, 39). Despite his detention, the applicant claimed that being a ‘devout Christian’ and follower of the ‘Local Church’ he continued to attend clandestine meetings of his Church, but his fears led him to leave China for Australia (see paragraph 41). In his absence, the applicant claims that the local Fujian authorities have attended his home and asked his family members about his whereabouts and activities (see paragraph 42) otherwise his family members have not been harassed or interfered with.  

106.   Taking into consideration what the applicant told the Tribunal about his circumstances as he described them in his evidence, they lack substance, details and credibility. In the Tribunal’s opinion, if the applicant was actually a member of the Local Church, he claims to be, he would have been more forthcoming with actual details of his activities as a member of that Church and would have provided a more detailed and full account of the day-to-day activities as he experienced them together with his family who (as he claims) also participated in Local Church prayer meetings. Instead, his descriptions of his activities centred on attending certain meetings on Wednesdays and Sundays and telling of his participation in group prayers. No other mention was made of other activities he and other members might have participated – for example, bible instruction meetings, group discussions of church-related issues or even social outings or even attempts by him to introduce his friends to participate in his faith and church. All activities which according to the available country information arouse strong suspicion on part of the Chinese authorities who in recent years do not tolerate religious dissent.

107.   More particularly, the applicant told the Tribunal that his major issues with the local Fujian authorities surfaced in October 2018, when he organised a Church meeting on his own which was forcibly dissolved and as a result of this – the applicant was detained, interrogated and disciplined by the Fujian authorities for seven days. As evidence of this detention the applicant provided to the Department and to the Tribunal an uncertified copy of a Certificate of Discharge issued (as was claimed) by the Fujian Public Security Bureau Detention Centre [in] October 2018 as evidence. The Tribunal noted that the certificate was not accompanied by any authorised and proper translation in the English language and the Tribunal placed very little weight on the certificate. Moreover, country information indicates that fraudulent documents are relatively easy to obtain and are commonly used in China for visa application purposes.[3] According to this information persons from Fujian, Lianjiang and Pingtan in Fujian Province have particularly high rates of fraud and non-compliance.[4] Then, the Tribunal was told that the applicant was released with a warning not to participate in religious activities which the applicant continued attending religious meetings at various local homes but always with fear (according to the applicant) that the meetings would be discovered. Given the information before the Tribunal of the prevalence of fraudulent documents in PRC, and the absence of more detailed evidence from the applicant about the applicant’s past church activities which led him to his claimed detention and his being released with the said certificate (untranslated) the Tribunal places no weight on the document an therefore, the Tribunal does not accept that the applicant has a genuine fear of harm in China due to his alleged Local Church practise and beliefs which led him to be detained.

[3] DFAT Country Information Report: People’s Republic of China, DFAT, 21 December 2017, CISEDB50AD7983

[4] DFAT ‘Thematic Report: ‘Fujian Province, People’s Republic of China’, DFAT, 16 December 2016, at p. 17, see paragraph [5.10], CIS38A8123116.

108.   Another issue which was noted by the Tribunal was the applicant’s claim that he had travelled to Australia on a properly issued passport in his own name that was issued to him by the Fujian state authorities [in] 2018. As noted in his evidence in his application and evidence before the Tribunal, the applicant indicated that he departed China legally from Chongqing Airport. The applicant did not indicate to the Department or to the Tribunal at the hearing that he had experienced any difficulties in leaving China because of his religious beliefs, or practises or because of any detention because he was a member of the Local Church in Fujian and he activities there as a devout Local Church Christian. The country information available and incorporated in this decision indicates that the state (in China) maintains a very close surveillance and restricts the movements of members of the Local Church. Indeed, the membership of this church is considered ‘counter-revolutionary’ and a ‘subversive element’ within society in China. It stands to reason that if the applicant was a member of such a religious organisation and had been detained as he claimed for his practices and religious beliefs after having organised a religious meeting, his ability to be provided with a passport (issued by the authorities he claims had and will persecute him) and then to leave China without any hinderances with a properly issued visa leads the Tribunal to conclude that applicant may have a religious belief that could be considered ‘Christian’ but that belief and practice of that belief did not in any way caused him to have a well-founded fear of persecution for his Christian belief, opinion and actions or had placed him at odds with the local Fujian state authorities of for any other reason as provided for by s.5J(1) of the Act.

109.   Finally, the applicant provided post-hearing evidence to the Tribunal in a statutory declaration claiming membership of the Local Church in Australia since January 2019 (in Melbourne) and being an active member of his church’s community. He claimed that he and other members of his church met regularly during the pandemic on-line because any face-to-face meetings were not permitted. Again, the applicant’s evidence of his church membership and activities while in Australia, lack substance and detail in the opinion of the Tribunal. First, the applicant was unable to provide the Tribunal with the name and location of his church organisation. Second, the applicant was unable to provide to the Tribunal as was suggested to him a confirmation in writing from his church’s religious leaders – confirming his membership of the church and his participation. The applicant suggested in his declaration, that such information was not possible according to his Church leaders because ‘…it was very difficult to write this letter to me as we had hundreds of church members joining online …and difficult for them (the church leadership) to pinpoint who was attending …’ Again, the Tribunal; does not accept this explanation as proper. If there was an actual church organisation the applicant was a member of, that organisation would have been willing and able with a simple e-mail to provide the Tribunal with the information requested. Sadly, this was not done. Third, the applicant declared that he had regular meetings with other church members online because of the Covid-19 pandemic emergency. Again, the applicant provided to evidence of this. He could have provided several screenshots of proceedings online to indicate his attendance on particular days. He could have provided the Tribunal with a schedule indicating online activities and meetings, bible lessons or congregation chats when they were being held by his church organisation or group. The impact of the pandemic has caused many church and community groups to improvise their people-to-people activities in order to function during these difficult times. The applicant said this was the case for his church group or organisation, but he provided no evidence to make his claim of being a member of Local Church in Australia credible. Therefore, the Tribunal can only conclude that what the applicant declared as true in his statutory declaration as not being the truth or having any substance and was provided to the Tribunal as an attempt by the applicant to embellish the truth with the aim of attracting the obligation for Australia to provide with protection. Therefore, the Tribunal does not accept on the evidence before it that there is a real chance that the applicant would persecuted for any religious beliefs or practices hew may have engaged or considered to participate in while being in Australia if in reasonably foreseeable future he is returned or chooses to return to China or for any other reason provided for by s.5J(1) of the Act.

110.   For the reasons in paragraphs [103] to [109…] above, the Tribunal does not accept that the applicant was forced to flee the PRC (China) for being a member of Local Church in Fujian province or for religious beliefs, as he claimed or that he was a person of interest to the Fujian state authorities or to the PRC state security because of his Christian beliefs or members of a Local Church in Fujian or for his activities personal or religious while being in Australia as he claimed if he returns to China now. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as is provided for in s.5J of the Act.

111.   For the reasons provided above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

112.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion – complementary protection provided for in s.36(2)(aa). For the reasons in paragraphs [103] to [109] above, the Tribunal does not accept that the applicant was forced to leave the PRC for his religious beliefs and practices as a member of the Local Church in Fujian province as he claimed, or that he faced the curtailment of his personal freedoms and possible future detention by the Fujian or PRC authorities because of any religious activities or beliefs he might have participated in (which were or had an association with the Local Church in the PRC) while being in Australia, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to the PRC, there is a real risk that he will suffer significant harm because of his Christian beliefs, or because of any association with Local Church organisations in the past.

113.   Therefore, the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

114.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

115.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Vlahos
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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