1914632 (Refugee)

1914632 (Refugee) [2024] AATA 2394 (19 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  1914632
COUNTRY OF REFERENCE:                   China
MEMBER:Suseela Durvasula
DATE:19 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 19 March 2024 at 5:16pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Catholic – involvement in underground church activities – assistant in organising Bible study groups – past harm – arrest and detention due to religious activities – credibility assessment – future harm – child attendance at church – active role in church activities – practise faith in an open way – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 2.08; Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 23 June 2017. The delegate refused to grant the visas on the basis that the first-named applicant was not a person to whom Australia owes protection obligations.
The first-named applicant is a [age]-year-old male Chinese national (‘applicant 1’). The protection visa application includes his [age]-year-old wife (‘applicant 2’) and their [age]-year-old son (‘applicant 3’ or ‘the applicants’ son’). In this decision record, all 3 applicants are collectively known as ‘the applicants’.
The applicants were represented in relation to the review.
In [year], applicant 2 gave birth to a daughter in Australia and a birth certificate was provided to the Tribunal. The Department was not notified of the daughter’s birth before the primary decision was made. As no primary decision was made regarding the daughter and she was not included in the review application, she cannot be added to the visa application under reg 2.08 of the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal has no jurisdiction to review a decision in respect of the daughter. At the hearing, the representative confirmed that the daughter had lodged her own protection visa application which was currently being assessed by the Department.
The Tribunal invited the applicants to appear before it on 6 February 2024 and 4 March 2024 to give evidence and present arguments. Applicants 1 and 2 attended the hearing and applicant 3 did not attend. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
When making the visa application, only applicant 1 made claims for protection. In the course of the review, the evidence before the Tribunal indicated that all 3 applicants were making protection claims and the Tribunal has proceeded to consider whether all 3 applicants are owed protection obligations.
Background
Applicant 1 was born in [Town 1], Fuqing City, Fujian Province, China. In his protection visa application, he states he lived at the same address from his birth until his departure to Australia in April 2017. He is married with 2 children (aged [age] years and [age] years). His parents [and siblings] also live in Fuqing.
Applicant 1 can speak, read and write Chinese. He graduated from [School 1], studying [Subject 1]. He worked as a [Occupation 1] at a [specified] company from 1995 to 1999 and as a [Occupation 1] from 1999 to May 2011. After resigning from this job to spend more time with his family, he was unemployed for a period. From June 2012 he worked at an [specified] shop in Fuzhou.
The applicants arrived in Australia [in] April 2017.
Protection visa claims – visa application
In a statutory declaration provided with his protection visa application, dated 23 June 2017, applicant 1 sets his protection visa claims as follows:
a)    He is Catholic and participated in the underground church in China.
b)    In June 2012, he got a job at an [specified] shop in Fuzhou located close to [specified location]. The shop’s owner, Mr C, was a devout Roman Catholic. Most of the customers were university students.
c)    Under Mr C’s influence, applicant 1 was introduced to Catholicism. From January to March 2013, he attended a 3 month Bible study class organised by the underground Catholic church for new believers preparing for baptism. He was baptised [in] March 2013.
d)    Mr C’s [specified] shop was a secret liaison centre for Bible study classes. After applicant 1 was baptised, he became an important assistant for Mr C, manufacturing, managing and organising teaching materials for Bible study class participants. From 2013 to 2016 he helped Mr C to organise 5 Bible study classes for new believers. About 100 people, mostly university students, attended.
e)    In January 2017, one of the university students was arrested by the Public Security Bureau (PSB) after distributing teaching materials about the Catholic church that had been produced by applicant 1. The [specified] shop came to the particular attention of the PSB. On [date] January 2017, Mr C and applicant 1 were also arrested.
f)     Applicant 1 was detained by the PSB from [date] January to [date] February 2017. The police wanted him to tell them about his involvement in the church, Mr C and the materials. They also wanted him to give up his beliefs. He was tortured and treated inhumanely by the police.
g)    Applicant 1 was released on bail after his sister bribed a police officer through her friend, Ms Y. He was still required to report to the local police station once a week. After this, applicant 1 was always in trouble with the local police. He was often questioned or harassed by the police at his home. He decided to go overseas.
h)    The applicants left China [in] April 2017. Applicant 1 had to bribe an officer at the airport in [City 1] in order to leave.
i)   After applicant 1 left China, his parents [and siblings] were questioned and harassed by the PSB.
j)   He believes he will be persecuted by the PRC authorities. His wife and son will be implicated by his case.
k)    He attends a Catholic church in Australia.
Delegate’s decision record
The delegate interviewed applicant 1 on 11 March 2019. The Tribunal has listened to a recording of that interview.
In the decision record, the delegate noted that although applicant 1 was able to talk about his Christian faith which was consistent with church teaching, his responses appear to have been rote learnt and he was not able to explain some aspects of Christian beliefs and Bible teachings. The delegate nevertheless accepted that the applicant was a practising Catholic and active member of the [Catholic Community in Australia].
The delegate refused to grant the visa as they did not accept that applicant 1 had an adverse profile with the Chinese authorities and would be arrested on his return. The delegate noted that the applicants were able to depart China without difficulty and did not accept that applicant 1 was forced to pay a bribe to depart China. Referring to country of origin information, the delegate was satisfied the applicant would be able to attend a Catholic church in Fujian Province, recognised by the government and Vatican. The delegate did not consider any claims made by applicants 2 and 3, but accepted they were members of applicant 1’s family unit.
Evidence provided at review
After lodging the review application, the applicants provided:
·     Evidence (including photographs and school reports), that the applicants’ son and daughter attend Catholic religious schools. The applicants’ son attended a Catholic primary school and is currently attending a Catholic high school. The daughter attends a Catholic primary school.
·     Baptism certificate for applicant 2 and her evidence of participation in special religious education.
·     Evidence that the applicants’ son was baptised [in] April 2018 and was confirmed [in] September 2019.
·     Evidence that the applicants’ son received his first Holy Communion on 16 December 2018.
·     Baptism certificate for the applicants’ daughter.
·     Photographs of the applicants participating in church activities and Bible study in Australia, including photographs of the applicants’ son assisting the priest as an altar server during the Mass service.
·     8 letters of support from Church attendees stating that the applicants have been active participants in the [Catholic Community in Australia]. The applicants’ son serves an acolyte[1] in the church’s sub-deacon group.
·     Letters from the President and Chaplain of the [Catholic Community in Australia] stating that the applicants had been part of the community since May 2017.
[1] A person assisting a priest in a religious service or procession
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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.
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.
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).
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–5LA, which are extracted in the attachment to this decision.
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
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance, if the applicants returned to China, they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk the applicants will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicants have provided copies of their passports to the Department and the Tribunal which shows they are Chinese citizens. The Tribunal finds, based on the applicants’ passports, that they are nationals of China and has assessed their claims on this basis.
Findings on applicants’ religious beliefs and practice
Applicants 1 and 2
At the hearing, the Tribunal questioned applicant 1 about his understanding of Catholic beliefs and practices and his church attendance in Australia. The Tribunal found that applicant 1 was not particularly coherent or articulate in the way he gave evidence. He was clearly nervous, at times confused about the questions being asked of him, and gave his evidence in a fragmented and disjointed way. This was also apparent at the Departmental interview, and on this basis, the delegate drew an adverse inference about his credibility.
The Tribunal is mindful that a person may be anxious or nervous due to the hearing or interview environment and the significance of the outcome. A person from a different social and cultural environment may experience bewilderment and anxiety. The educational, social and cultural background of a person may affect the manner in which a person provides his or her evidence and the depth of understanding of particular concepts.[2] The Tribunal has taken these factors into account in assessing applicant 1’s evidence about his religious faith.
[2] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on the Assessment of Credibility (July 2015),
The Tribunal is satisfied that applicant 1 gave a detailed and sincere account of his religious beliefs and practices, even if he could not articulate himself particularly well. The Tribunal accepts he is a genuine practitioner of the Catholic faith who would continue to practise his religion if he returns to China.
Applicant 2 told the Tribunal that she did not have much understanding of the Catholic religion or the church in China. She was aware that her husband was attending the underground church, but she was not interested at that time as she felt she was not yet ‘picked by God’. After she came to Australia, she was motivated to practise when she saw the changes in her husband. Her husband had been adversely affected by his underground church activities in China, yet he was still motivated to continue, and God helped them get out of China. This experience also led her to believe in God. She gave a detailed account of her religious beliefs and practices. The Tribunal accepts, based on her evidence, and the corroborative evidence discussed below, that applicant 2 is also a genuine practitioner of the Catholic faith. The Tribunal accepts that she would continue to practise her religion if she returns to China.
The applicants have provided a large volume of corroborative evidence (third-party statements, photographs and certificates), showing that they have been active participants in the [Catholic Community in Australia] since their arrival in Australia in 2017. The Tribunal accepts that the applicants have been attending [Church 1] in [Suburb 1] every Sunday, where they attend Mass, followed by lectures and group activities.
Third-party statements from fellow parishioners and the church leaders confirm that applicants 1 and 2 have both had leadership roles in the [named] Group which contributes to the [specified] operations of the church ([deleted]). Letters from the President and Chaplain of the [Catholic Community in Australia] and letters from 8 other parishioners confirm that the applicants have been part of the church community since May 2017. These state they ‘are not merely committed parishioners but profoundly devout individuals’ and contribute ‘significantly to the spiritual vibrancy’ of the parish. The applicants’ son serves as an altar server during the Mass service. This evidence demonstrates that the applicants have an active role in the church community, beyond simply attending Mass and religious services.
The Tribunal is satisfied, based on this evidence, and the length and nature of their church attendance in Australia, that the applicants have attended church in Australia because they are committed Catholics, not solely to strengthen their refugee claims. The Tribunal is satisfied that the depth of evidence demonstrates a genuine practice of the Catholic faith as part of the applicants’ daily lives. The Tribunal is therefore satisfied that they have engaged in this conduct otherwise than for the purpose of strengthening their refugee claims and that s 5J(6) of the Act does not apply.
Applicant 3 (applicants’ son)
At the hearing, applicant 1 and applicant 2 gave detailed evidence about the religious identity and practices of their [age]-year-old son.
Applicant 2 told the Tribunal that her son did not practise Catholicism in China as he was still quite young and not mature enough to understand. She and her son started attending church in 2017 with her husband after they came to Australia. Her son has been baptised, has received the Holy Communion and has had his Confirmation. It was his own choice to get confirmed, after he felt he had enough knowledge and faith.
Her son actively participates in religious activities every week. He is an attendant for the priest during the Mass every Sunday and has been doing this role for 3 years. He had to attend special study sessions on Saturdays, during school holidays and early on Sundays to prepare for this role. He also assisted the priest during a ‘[named]’ ceremony and applicants 1 and 2 showed the Tribunal photographs of this event. He is also in a teenagers’ Sunday school group which meets every Sunday after Mass. During the school holidays, they attended a Christian camp at [location] and visited a shrine for Mary on the way.
When asked how her son feels about going to church and practising Catholicism, applicant 2 stated that it was an important part of his identity and his beliefs. Going to church brings him great joy. He believes in God very much and can recite the Bible. He spontaneously prays for others when he sees they are in trouble (such as his classmates and friends). She can see the differences in his personality. He is normally quite an introverted boy and not very talkative. However, in church, he likes to open up to the nuns and the priest and share things with them and ask questions. He is very close to the priest at [Church 1] who is like a teacher/father figure for him.
Her son attends a Catholic high school and is involved in religious activities there. He is very close to one of the nun teachers at school. One of his teachers invited him to assist with the Mass at school, as he had been serving as an attendant at church. His close friends are also Catholic.

The Tribunal accepts the evidence of applicants 1 and 2 about their son’s religious practice. They both gave evidence in a consistent and credible way and their evidence was supported by a large volume of documentary evidence and supporting evidence from third parties.
The Tribunal notes that the issue of applicant 3’s religious practice was not before the delegate, as he was only [age] years old at the time of the visa application in 2017. He is now [age] years old and mature enough to have developed his own religious identity and form of religious expression. This is evidenced by his active participation in church activities as an altar server; his extra religious study to obtain the position of altar server; his decision to obtain Confirmation; his religious education; his deep connection with his religion; his close relationship with the priest and the nuns; and his open and spontaneous expression of his religious feelings and beliefs at school and elsewhere. The Tribunal accepts that the Catholic religion forms a critical part of his identity and personality. The Tribunal accepts that the applicants’ son would want to continue practising his religion if he returns to China.
The Tribunal is satisfied, based on this evidence that the applicants’ son has attended church in Australia initially because of his parents’ influence, and later, because of his own religious interest and commitment. He has not engaged in this conduct solely to strengthen his refugee claims. The Tribunal is satisfied that the depth of evidence demonstrates a genuine practice of the Catholic faith as part of his daily life. The Tribunal is therefore satisfied that he has engaged in this conduct otherwise than for the purpose of strengthening his refugee claims and that s 5J(6) of the Act does not apply.
Applicants’ daughter
At the hearing, applicant 2 also gave evidence about her daughter’s religious activities in Australia. Her daughter has been involved with the Catholic faith since she was born. She has been baptised and attends church every Sunday with the family. She attends Sunday school before Mass and also prays regularly.
The Tribunal also accepts that although the applicant’s daughter is only [age] years old, she actively participates in church and Sunday school. While she may be influenced by her parents and older brother, the Tribunal accepts that she is starting to develop her own religious awareness.
Applicant 1’s religious practice in China
The Tribunal accepts applicant 1’s claims that he started practising Catholicism in China in 2013 and was baptised in March 2013. He spoke with the commitment of a person who had been practising their religious beliefs for a considerable period of time (over 10 years). The Tribunal accepts that between 2013 and 2017, he attended underground church services at a church member’s home every Sunday. At the hearing, he provided a detailed account of the nature of the service and how the Mass was conducted.
The Tribunal accepts that in addition to the underground church services, applicant 1 also helped organise Bible study groups at the [specified] shop where he worked. Applicant 1 gave a reasonably detailed account of these meetings, which largely involved university students and his role in organising these meetings. Applicant 1 advised that he would help his employer, Mr C, by printing out materials on a USB stick. He did not prepare the materials himself and he did not lead the meetings. He would record the details of the students who came to the meetings. Based on this evidence, the Tribunal finds that applicant 1 acted as an assistant in organising the Bible study groups and did not have an active leadership role.
Applicant 1’s claims of past harm in China
The Tribunal has some concerns about applicant 1’s evidence regarding his arrest and detention in China due to his religious activities for the following reasons.
Firstly, applicant 1 did not mention that he had been arrested by the police in 2017 until prompted by the Tribunal. Initially, he stated that the police regularly performed security checks and checked places where underground church gatherings were held. When asked if he himself was ever checked by the police or encountered problems with the authorities due to his religious activities, applicant 1 stated that he was not. The group would cease the service and hide if they were aware that the police were coming. He did not mention being arrested. After considerable prompting, applicant 1 stated that he was arrested at a Bible study group. He was then held in detention for 1.5 months, questioned and beaten. After his release, he continued reporting to the local police every Tuesday.
The Tribunal has considered applicant 1’s explanation for failing to mention this incident earlier, until prompted by the Tribunal. At the hearing, and in a statutory declaration dated 20 February 2024, applicant 1 explained that he was confused by the question and thought he was being asked about underground church gatherings, not Bible study classes.
The Tribunal has considered applicant 1’s explanation that he thought the Tribunal was asking about any incidents at the underground church gatherings. The Tribunal accepts that he may have been nervous and confused at the hearing. The Tribunal has also considered the evidence of applicant 2, where she also stated that applicant 1 was arrested and detained for 1.5 months, and was required to report to the police every Tuesday. However, this does not overcome the Tribunal’s concerns. Given the importance of these events to his own claims of past harm, the Tribunal is unable to accept applicant 1’s reasons for omitting to mention his arrest, when asked if he had experienced harm from the authorities due to his religious practice. The Tribunal considers that this would have been a significant and memorable event that would have adversely impacted him.
Secondly, the Tribunal finds that applicant 1 gave inconsistent evidence as to how he was released from detention. At the hearing he stated that his wife bailed him out. The Tribunal put to him that in his protection visa application, he had stated that he was released after his sister paid a bribe through her friend. When asked to explain the discrepancy, applicant 1 did not directly address the issue, but stated that his sister’s friend had a connection with the police so that helped him. In his statutory declaration dated 20 February 2024, he stated that his wife gave money to his sister and his sister used the money to bribe a police officer through her friend. The Tribunal finds applicant 1 has given 3 different versions as to how he was released from detention. Given these inconsistencies, the Tribunal cannot be satisfied applicant 1 was arrested in January 2017 for participating in Bible study classes and detained for 1.5 months.
Thirdly, the Tribunal does not accept applicant 1’s claim that his sister’s friend paid a bribe to airport staff in order to facilitate the family’s departure from China, as he was under investigation by the local police.
As discussed with applicant 1 at the hearing, independent country information indicates that entry and exit to/from China is strictly regulated and it is almost impossible to leave China without the authorities’ knowledge. Various government agencies can feed information into databases and the technology may be used to create an exit control list. If a person is on an exit control list, it is very unlikely that they would be able to exit China. An ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption and the professional and comparatively well-paid status of public security officials.[3]
[3] DFAT Country Information Report, People’s Republic of China (22 December 2021), (DFAT report) at 5.31–5.35
In response, applicant 1 stated at the hearing that people with the right connections can find the right channels to bribe officials. In his later statutory declaration, he stated that he may not be on an exit control list as he was not regarded as a leader and had not been charged with anything; however he was still under investigation. The Tribunal is not satisfied that this explains why the applicants were able to leave China without difficulties, if applicant 1 had in fact been under investigation and was required to report regularly to the police as he claimed. As stated above, various government agencies can feed information into databases to create an exit control list and bribing an individual officer to facilitate departure is unlikely to be successful.
Based on findings above, the Tribunal accepts that applicant 1 was involved in underground Catholic church activities in China and Bible study classes for university students. However, the Tribunal does not accept that he was arrested, detained, and questioned and beaten in detention; that he was forced to pay a bribe to be released; and that he had to continue reporting to the police weekly after his release. The Tribunal is not satisfied that applicant 1 or his agents, paid a bribe to facilitate his departure from China in 2017. The Tribunal considers that applicant 1 has sought to embellish this aspect of his claims.
Future harm
Despite the Tribunal not accepting all aspects of applicant 1’s claims regarding the circumstances leading up to his departure from China and his claims of past harm, the Tribunal must nevertheless consider if there is a real chance of serious harm, if the applicants return to China, in the reasonably foreseeable future.
The Tribunal has specifically considered this question in circumstances where the Tribunal has found that all 3 applicants are practising Catholics who would want to continue practising their religion, if they returned to China. The Tribunal notes that information about the religious practice of applicant 1’s wife, son and daughter was not before the delegate at the time of their decision.
How will the applicants practise their religion if they returned to China?
Evidence
At the hearing the Tribunal discussed with applicants 1 and 2, the independent country information about the Catholic church in China, including information from DFAT.[4] This states that Catholicism is one of the 5 official religions in China and there is an official Catholic church called the Chinese Catholic Patriotic Association.[5] It is estimated that there are approximately 10 to 12 million Catholics in China.[6] The Tribunal put to applicants 1 and 2 that their home province of Fujian is a traditional stronghold for Catholicism and underground Catholicism.[7]
[4] DFAT report
[5] DFAT report at 3.22 and 3.36
[6] US Department of State, US International Religious Freedom Report 2022, at p.6
[7] DFAT report at 3.38
The Tribunal also discussed the issue that the Vatican had entered into an agreement with the authorities in China on the appointment of bishops and recognised those appointed by the Chinese authorities and wanted Chinese Catholics including underground Catholics to attend the official Catholic church. In 2022, the Vatican had extended that agreement into the appointment of bishops for a further 2 years.[8]
[8] DFAT report at 3.37
In response, applicant 1 stated that he understands there are Catholics in China, but they are practising in secret. As Catholics they should lead a religious life in the church, not a secret religious life. He does not want to tell his son that he can only attend the underground church secretly. Applicants 1 and 2 stated they will not attend a registered church as it is run by the Chinese Government and is not the true authentic Catholic church. Therefore, they would have no choice but to attend the underground church. Even attending the underground church would not align with their true religious beliefs, as they do not want to practise secretly. Part of their faith is to talk to others (such as friends and acquaintances), about the Catholic church and invite them to attend. They would want to continue this practice in China.
When asked how her son’s religious practice would change if he goes back to China, applicant 2 stated that in China, her son would not be able to attend church, participate in the altar service or attend a religious school. He would be isolated from God and he will be ‘crushed’. He often states that he is even more God’s son than his parents’ son. If he could not attend church, this would be like saying to him that ‘your parents are not your parents’. It will have a big impact on him and his personality would change.
When asked how their son would practise his religion in China, applicants 1 and 2 stated that they may take him to an underground church to practise, but they would have to be very cautious in doing so, as children are not allowed to participate in the church, and the state implements these policies very strictly. The underground churches may not allow him to attend as it would be a greater risk for them that they will be investigated by the police. If he does attend, it will not be the same for him as in Australia, as he would not be with anyone his age. Applicant 2 stated she is not sure whether she would take her daughter to the underground church as she will have to think about the risk.
When asked what harm their son would experience if he returns to China, applicants 1 and 2 stated that he would have to attend a state school where he may be discriminated against and feel isolated because he is used to expressing his religious feelings openly in a Catholic school. Although he is normally a quiet child, he is more courageous and spontaneous when it comes to his religion. For example, he may spontaneously pray, or say out loud that he believes in God and is God’s son. He is used to a religious education and may not be able to suppress his wish to speak out about God, even if logically, he may be aware that he cannot talk openly about religion in China. They were worried that the government will stop him from expressing his religion and may even arrest him. Their son may also share his religious beliefs about Catholicism with other children, his teachers and other adults. This may put the whole family at risk as children are not allowed to talk about these things and are not permitted to attend church.
Findings
Based on the evidence set out above, the Tribunal finds that if the applicants returned to China, they would return to Fujian Province and continue to practise their Catholic faith in a devout and regular way, as they have done in Australia. The Tribunal accepts they would not attend the registered church, as for them, it is influenced by the Chinese Government and does not represent the true Catholic faith. The Tribunal accepts that the applicants would practise in an underground church. The Tribunal also accepts that given the applicants’ reluctance to practise their religion secretly, they may also speak openly to friends and acquaintances about their religion and encourage them to join.
The Tribunal accepts that applicants 1 and 2 would try to take their son, and possibly, their [age]-year-old daughter to the underground Catholic church. The Tribunal accepts that the applicants’ son is a devout Catholic who has formed his own religious identity, and that he would seek to have an active role in the Mass and the church activities, as he does in Australia. The Tribunal accepts that the applicants’ son may also express his religious beliefs aloud by spontaneously praying or sharing his beliefs about God, given his many years of religious education and social involvement in the church. The Tribunal accepts that he will most likely attend a state school, where he may also express his religious beliefs in the presence of his teachers or peers.
Do the applicants have a well-founded fear of persecution?
Independent country information
The Tribunal has had regard to the following country information in making its decision.
In its 2021 Country Information Report, DFAT reports that under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion, ensuring a ‘correct’ version of religion is practised, with principles of patriotism, Communist party leadership and loyalty to the party emphasised. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. [9]
[9] DFAT report at 3.24.
In relation to Catholics in China, DFAT states:
3.38In spite of the deal [between the Vatican and Beijing], reports of a crackdown on Catholics as part of a wider campaign to sinicise religion continue. Underground priests who were demoted from the position of bishop as part of the deal are pressured to join the CCPA, according to various media reports. Some media reports say that underground priests had experienced torture and disappearance if they resisted. Fujian, a traditional stronghold for Catholicism and underground Catholicism in particular, has seen particular efforts to convert underground bishops.
…
3.40DFAT assesses that some underground Catholics loyal to the Vatican are only able to practise their religion discreetly and some may face severe restrictions. Most Catholics will follow their local leadership, whether it is Party or Vatican controlled, and so leaders are more likely than congregants to face government attention, but the situation differs from place to place and community to community and many Catholics live in rural areas where local conditions may prevail. DFAT assesses Catholics, both underground and CCPA members, are subject to low levels of societal discrimination.[10]
[10] DFAT report at 3.38 and 3.40
In its 2022 Freedom of Religion report, the US Department of State reported:
The government continued to close down or hinder the activities of religious groups not affiliated with the state-sanctioned religious associations, including unregistered Protestants, Catholics, Muslims, Buddhists and others. At times, authorities said they shuttered a gathering because the group or its activities were unregistered; at other times, because the place of worship lacked necessary permits. Authorities allowed some unregistered groups to operate but did not recognize them legally. In some cases, authorities required unregistered religious groups to disband, leaving their congregants with the sole option of attending services under a state-sanctioned religious leader.[11]
[11] US Department of State, US International Religious Freedom Report 2022, at 25.
In relation to minors, children are prohibited from being involved in religious activities and education. The Regulations on Religious Affairs came into effect on 1 February 2018 which banned minors from being involved in religious education and practice.[12] The Law of the People’s Republic of China on Protection of Minors, as revised in 2020, also prohibits parents or guardians from allowing or abetting ‘minors to participate in religious cults or superstitious activities’.[13]
[12] ‘Regulations on Religious Affairs (2017 Revision)’, State Council of the People’s Republic of China, State Council of the People's Republic of China [English.gov.cn], 1 February 2019, 20190620101102
[13] ‘Law of the People’s Republic of China on Protection of Minors – 2020 Revision’, National People’s Congress (China), 17 October 2020, Art. 17, 20230503091024
While previous DFAT reports have advised that in practice, greater religious freedoms have been available in Fujian Province,[14] there are reports of restrictions on minors participating in religious activities being applied within the province. World Watch Monitor indicates that minors were banned from attending Christian summer camps in Fujian and other provinces having relatively high Christian populations. In Fuzhou, the state-sanctioned Three-Self Patriotic Movement was told to report any activity held in religious venues and to obtain permission to hold events in unregistered venues. Churches in Fuzhou were told, ‘it is forbidden to force or tempt juveniles to believe in any religion’.[15] There are also reports of the government forcibly shutting down kindergartens and primary schools sponsored and managed by house churches, including a school in Xiamen City, Fujian.[16]
[14] DFAT, ‘Thematic Report on Fujian Province, People’s Republic of China’ (16 December 2016)
[15] World Wide Watch Monitor, ‘China Bans Children and Their Teachers from Churches’ (8 September 2017),
[16] Bitter Winter, ‘Minors Banned from Participating in Religious Activities in China’ (1 May 2018),

There are some reports of minors having been detained by authorities or taken to the police station for questioning when found practising their religious beliefs in house or unsanctioned churches. In August 2022, a 9-year-old child was intimidated and taken to a police station for interrogation after a forced search of the homes of a pastor and church staff members.[17] During a Sunday church service in the Mentougou district, also in August 2022, a church was raided and 9 adults and 2 children were seized.[18] In April 2021, 7 church members and 12 children in Sichuan Province were taken away by police during a church raid, conducted due to their gathering as Christians to talk and study together.[19] There have also been reports of broader door-to-door intimidation of parents and children, and the raiding and closing of church schools in various places in efforts to suppress and ban Christian education.[20]
[17] China Aid Association, ChinaAid’s Annual Persecution Report 2022 (14 February 2023), at 23
[18] China Aid Association, ChinaAid’s Annual Persecution Report 2022 (14 February 2023), at 26
[19] Radio Free Asia, ‘Police in China’s Chengdu Detain Children in Early Rain Church Raid’ (22 April 2021),
[20] China Aid Association, ChinaAid’s Annual Persecution Report 2021 (1 March 2022), at 16
In relation to religious education in a school environment, country information indicates the law forbids any kind of religious education for minors but does not forbid education against religion. There are reports that the government is heavily involved in the suppression of religious belief in childhood settings, including with schools being pressured to stop children and parents from believing in religion and education being restricted on the basis of religious belief or practice.[21] Parents were asked not to hold any religious beliefs, participate in any religious activities, or propagate and disseminate religion in any locations.[22]
[21] Christian Solidarity Worldwide, ‘China: Children, education and freedom of religion’ (26 June 2018),
[22] China Aid, ‘Kindergarten parents must pledge not to hold religious beliefs’ (20 March 2023),
In a school setting, it has been reported that children have been under pressure to tell teachers and the local authorities if their parents are active adherents to a specific religion.[23] There are also reports of young people in some areas being threatened with not being allowed to graduate or not being accepted for further studies where children have remained strong in their Christian faith.[24]
[23] Open Doors, China: Full Country Dossier (December 2023), China-Full_Country_Dossier-ODI-2024.pdf at 81
[24] Open Doors, China: Full Country Dossier (December 2023), China-Full_Country_Dossier-ODI-2024.pdf at 82
Findings
The Tribunal acknowledges that the country information indicates there are a significant number of Catholics attending both registered and unregistered churches in Fujian. The Tribunal is aware of earlier reports assessing that authorities in Fujian were more tolerant of underground churches than authorities in other areas, provided they operated discreetly. However, even that information acknowledged that the situation could vary with Fujian, and that persons engaged in actively proselytising would likely be exposed to harassment, pressure and even violence and criminal sanction, although assessed that was more likely for leaders.[25] Recently, there have been reports of increasing restrictions in Fujian.
[25] DFAT, ‘Thematic Report on Fujian Province, People’s Republic of China’, 16 December 2016
In its 2021 report, DFAT assesses that an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.[26] Treatment can vary by location.
[26] DFAT report at 3.27
Whilst some country information indicates that ordinary followers practising in the underground Catholic church may not come to the adverse attention of the authorities, in this case, the Tribunal is satisfied that the applicants would face serious harm if they returned to China and continued practising their religion, for the following reasons.
Firstly, a family of underground Catholics who seek to attend an underground Catholic church with their children are more likely to attract the attention of the authorities. This action may be perceived by the Chinese authorities to be a threat to political issues, given that it would be an illegal act and contrary to the Regulations on Religious Affairs which bans minors from religious worship. It would raise the applicants’ profile and could possibly bring them, and the underground church they were attending, to the adverse attention of the authorities. As discussed above, there are some reports of minors having been detained by authorities or taken to the police station for questioning when found practising their religious beliefs in house or unsanctioned churches.
Secondly, the Tribunal has found that the applicants’ son has formed his own religious identity, and that he would seek to have an active role in church activities, as he does in Australia. He may also express his religious beliefs openly in the school context or with peers. The Tribunal finds if the applicant were to discuss his religious beliefs in a school environment, he would likely come to the attention of the authorities and be reported by his teachers or peers for his religious beliefs. He may be subjected to scrutiny, harassment, intimidation, social isolation and humiliation.
Thirdly, the Tribunal has found that the applicants would seek to practise their Catholic faith in an open way, and not secretly and discreetly. Their intended activities would include, speaking to friends and acquaintances about their faith and church and inviting them to attend. While the Tribunal considers these intended activities fall short of actively evangelising or proselytising, it demonstrates that the applicants would be relatively open about their religious beliefs and practices. In particular, it may be difficult for applicant 3, as a [age]-year-old boy in his formative years, to avoid expressing his religious beliefs openly. The Tribunal is satisfied that the manner in which the applicants choose to practise their religion is more likely to bring them to the adverse attention of the authorities.
Fourthly, the Tribunal has found that applicant 1 previously had a profile as an underground church follower who organised Bible study classes for university students. While the Tribunal has not accepted his claims that he was arrested and detained for these activities, he nevertheless had a history of participating in, and organising activities for the underground Catholic church, which would be more likely to bring the applicants to the attention of the authorities.
Given the findings above, the Tribunal is satisfied that there is a real chance that applicants 1 and 2 may be questioned, arrested and detained by the authorities and that applicant 3 may be questioned by the authorities. The Tribunal is satisfied there is a real chance that applicant 3 may be subjected to scrutiny, harassment, intimidation, social isolation and humiliation in the school setting due to his religious beliefs. The Tribunal is satisfied that the combination of these types of harm constitute serious harm and systematic and discriminatory conduct under s 5J(4) and s 5J(5) of the Act.
Having considered the applicants’ claims singularly and cumulatively and the information outlined above, the Tribunal is satisfied should the applicants return to China and attend underground house churches, they would face a real chance of serious harm in the reasonably foreseeable future. The Tribunal is satisfied the harm would be directed at the applicants for the essential and significant reason of their religion and that it would involve systematic and discriminatory conduct.
Right to enter and reside in a third country
On the evidence before it the Tribunal finds s 36(3) does not apply. The applicants do not have a right to enter and reside in a third country.
Effective protection
The Tribunal finds the applicants would be targeted by the Chinese authorities in relation to their religious beliefs. On the evidence before it the Tribunal is not satisfied effective protection measures are available to the applicants as the state is not willing or able to offer effective protection.
Behaviour modification
The Tribunal finds there are no reasonable steps the applicants could take to modify their behaviour to avoid the real chance of harm. This would involve requiring them to alter or conceal their true religious beliefs or cease to be engaged in the practice of their faith, which is not permitted under s 5J(3)(c)(i).
Conclusion
The Tribunal finds that the applicants are outside their country of nationality, and owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country. Therefore, the Tribunal finds that each of the applicants meets the definition of refugee in s 5H(1) of the Act.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Suseela Durvasula
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.
…

[2024] AATA 2394

19 March 2024

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