1915504 (Refugee)

1915504 (Refugee) [2024] AATA 3202 (4 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1915504

COUNTRY OF REFERENCE: China
MEMBER:Lilly Mojsin
DATE:4 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 04 July 2024 at 10:56am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – local Church – Shouters – detention – physical assault – active proselytization – passport renewal – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 dependants.
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 20 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 22 July 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on return to China.
The applicant appealed that decision, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 17 June 2024 and 19 June 2024 to give evidence and present arguments via Teams Video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see the Tribunal Member and interpreter. I was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In the applicant’s Department Protection Visa Application claims:
• he experienced harm and persecution from the Chinese authorities for practising in his family church. His church was banned in China and proclaimed an “evil cult” or “shouters” group. Family church activities are prohibited in China. Only churches registered by the Three Self Patriotic Association are allowed. During the last several decades his family church has been subject to a crackdown and many church members have suffered harm and persecution, including arrest, detention, assault and intimidation.
• [In] January 2016, while at a church gathering in Changle city, he was arrested and detained with other church members for 10 days. The police searched his apartment and his [brother] happened to be having a family church in the apartment, and he too was arrested and detained for 10 days. After their release, he and his brother engaged an agent who assisted them to travel to Australia.
• he is a devoted Christian. If he returns to China he will continue to practise his religious belief at his family church. Therefore there will be a chance that he will suffer further harm and persecution. Before he was released from the Changle custody centre he was warned that if he is caught again practising at a family church, he would be sent to jail. He is unable to relocate to another area as there is no safe place for him to live in China.
At the Tribunal hearing, held on 17 June 2024, the applicant said that he did not attend the Department interview, he said that it was due to his communication app. It was a Chinese app. and that is why he did not receive an email from Department advising him of his interview. I asked the applicant if he now holds a current Chinese passport, and he said that he does and it is valid to 2034. He renewed it in Australia and he had no problems renewing it. He used an agent to apply.
I put to the applicant that in his visitor visa it was stated that his birth and residence was in Hebei. He responded that he lived in Fujian. He said when he provided information it was with the assistance of his church brother and since being in Australia he has used church brothers to also help him.
His family are living in Fujian, his wife and children live in Fuzhou. His parents are still alive and his wife lives nearby. His [sister] lives in China in Fuzhou. He lived in Fuzhou city in China, and finished school here. He worked in a company in Fuzhou, [in specified] production in Fuzhou city, he was [an occupation 1] in charge of [specified functions]. He worked there from 2000 to 2002. After he married in 2002 he opened shop to sell [products 1], and he ran this business until he came to Australia. The shop was sold to other people when he left China. His wife worked in the shop with him. His wife stayed home, taking care of the children.
He came to Australia in 2016, and he did not have problems leaving China. After he came to Australia he worked doing [specified work]. He works for a Chinese boss, [named].
I asked if he is baptised and he said he was, in 2000. He met his wife through relatives and she wife went with him, but his children were not baptised. When he was baptised his wife did not get baptised but she still went to church. She does not go to church now. In China, the home church is still banned. I asked if his parents go to church and he said they do not go. They never went to church.
I asked what attracted him to Christianity in China and he said that he really enjoys the time in the church. His [sister] came first to Australia and then he came to Australia with his brother.
I asked why he left China and he responded that he was arrested by the police in China, he said it was [in] January 2016 when he was arrested for 10 days. He was released because he wrote a promise that he will no longer attend home churches. At that time there were [number] brothers arrested. A brother is a leader. The other brothers, some went to [Country 1] and some went to [Country 2]. I asked if that church exists any longer and he said that the church still exists and they have private contacts. He said one of them remains in China. [Brother A] stayed in China and he is still there running the church. I put to the applicant that [Brother A] is able to conduct services. He agreed.
I asked how many members the church has and the applicant said that they did not count them as the principle is to meet at different places, at different times. He said the church had 200 000 members in China. He said that if we count Fuzhou then they have more than 1000 in 2016. I asked how he knows what is happening there now and he said that they have brothers and sisters who travel between China and other countries and they provide information to the leading brothers.
I asked what he fears about returning to China now and he said that if he is to return, he will still attend a home church and gatherings and will be arrested. I asked if he would go to [Brother A’s] church or another church and he responded ‘yes’. I asked which branch of Christianity [Brother A] follows and he said that the home church they attend was founded by two brothers [named]. I asked what the church was called and he said that it does not have name, it is named after the city.
I asked if the church followed any particular branch of Christianity. He said that their main pursuit is the Bible and they are derivative of an English brother church. I asked him which one and he said they just refer to it as ‘brother’ church.
I asked what he did as a leader in this church and he said that his job is to host a gathering. He said on Sunday he will arrive early and set up equipment chairs etc and get books bible and hymns ready. I asked him to describe the service and he said that “we start at 10.00 [55 minutes] they pray together and sing the hymns and share their experience and they witness the religion and share weekly information and share their opinions”. I asked if somebody was leading the service and the applicant said there is a leader brother who ran the procedure and controlled the times.
I asked the applicant to explain the procedure of the service of the church meetings in China and he said that from 10.00am to 10.30am they would pray and sing a hymn together and from 11.00am to 11.30am it was the meeting and from 12.00 to 12.30 sharing of the Lord’s word and from 1.00pm lunch. I asked what involvement he had and he said that on a Sunday getting the preparation done and sharing the Lord’s words to everybody. He said that he would outline Bible learning and the leaders would require certain things that needed to be studied for the week and he would share the outlines of what was needed to be studied for the week. For example last week it would be about Jesus Christ and “within his love we have everything we need”. I asked him if he was referring to services in Australia and he said ‘yes’.
When he was in China, he was doing the same things, the same procedures and the same duties. The church in Australia is called [Church 1]. He has been going there since 2017.
I discussed with the applicant s.5J(6) provisions.
I referred the applicant to his practise in China and I asked him to confirm that he went on Sunday from 10.00, then he would go to prayers and hymns at first, followed by a group discussion and then the group had lunch. I asked if those services differed from those in Australia, he said there is no difference. I asked him if it is the same church and he said it was.
I asked the applicant what a Shouter was. The applicant replied that it is the name the Chinese government calls his group. I asked why and he said that during the gatherings they will call out the Lord’s name often during the meeting. I put to him he did not previously tell the Tribunal they did that. I put to him that I had asked him what happened in his church services and he said they had hymns and prayers and he did not say they were ‘shouting’. He responded that probably calling and shouting is a very ordinary and normal act in the gathering and so he didn’t think of it. I put to him that he must then be doing exactly the same in the [Church 1]. He said yes.
I put to the applicant that the internet site of the [Church 1] does not suggest that they call out the Lord Jesus name during prayer or that they are a Shouter’s church. He said they only call out the Lord’s name during the gathering, the praying group on Tuesday Bible reading. Saturday and Sundays worship day they call out the name of the Lord during any pray. He said it was in any meetings and gatherings. I asked if they did anything else except calling out and he said that apart from calling out the Lord’s name and praying for the church brothers and sisters, they will share and witness stories together . I asked if this was the same in China in his religion and he said yes it is the same.
I put to the applicant that Shouters stomp their feet and he did not tell the Tribunal that shouters have a habit of stomping their feet when calling out the Lord. He said “yes”. I put he did not tell the Tribunal he was stomping his feet. He said because he is used to this environment and he didn’t say that much of the details as it has become a habit.
When asked to describe how the Shouters originated, he said that they were founded n [location] in 1991/2 in China.
When asked what the Lord’s table meeting is, he did not appear to understand. He said it is called the Lord’s gathering and when asked for its significance he responded that the most important purpose is for brothers and sisters to study the Bible. I put that the believers gather to participate in the fellowship of the Lord’s blood and body for their enjoyment and to remember the Lord for His enjoyment.
He said the home church he attends mainly focus on Bible study and gospel preaching. I asked if he was referring to China and he said in China and in Melbourne it is the same principle.
When asked for his understanding of God’s economy and the five processes through which Jesus Christ accomplished God’s economy, the applicant replied that he does not understand. He said that he knows in the Bible there is the Lord’s plan.
I asked the applicant if he was familiar with the concept of “recovery”. He responded that the Bible they are studying is the ‘recovery’ version bible which was translated by their brother. I put that “Recovery” means the restoration or return to a normal condition after a damage or a loss has been incurred. He said that in their home church they believe some of the religious rituals are to restore the correct Bible and that is why it is recovery. I put that shouters believe that ‘God’s recovery reached its present stage with the establishment of genuine local churches as the expression of the Body of Christ. The Lord is doing two things. He is recovering the experience of the riches of Christ—that is, the enjoyment of Christ as their life and their everything—and he is recovering the practice of the church life’.
I put to the applicant that he indicated he lived in Changle city in his Department application. he said it is a district in Fuzhou city.
I put to the applicant that because he left China without any problems this indicated he was of no interest to the Chinese authorities at the time he left China. He responded that when he was leaving China, he had an agent who made the application for him, he did not do anything personally. I put that he had a valid passport and the application was done by an agent because he needed an Australian visitor visa. He agreed. I put that he had an existing passport and DFAT indicates exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities. Various government agencies can feed data into databases including from tax, customs, police or judicial authorities. This technology is used to create an exit control list. I put that this information would suggest he was not of interest to the authorities.
At the adjourned hearing I drew to the applicant’s attention that The Lord’s Table as defined by the [Church 1] indicated:
[Details deleted.]
The applicant said that he was introduced to the Local Church in Australia, the [Church 1]. It is located at [specified address]. He said that one of his brothers in China gave him contact details of a brother in Sydney. He went there and it is a residential property used for gathering in Sydney. He attended that church when he first arrived. His [specified family members] go to the same church.
I asked if he has a role, if any, in the church. He said that he does preparation work for the gathering. He prepared messages from God, the elders sent messages to an app. to read through and then share those messages at the gatherings. I asked him if they share the messages, he said last night the leading elders discuss the messages. I asked if he does anything else other than attend meetings and read the apps. He said he shares good news and serves brothers and sisters in their everyday lives. They do phone call to brothers and sisters and home visits to assist people who need help to better understand the Bible and better clarify any questions they have and share their problems such as pressure from work and their life, like he does.
Discussing his favourite Bible story he said that there is a rich guy who has $10 with him and he lost that money and he quickly lit a candle and tried to find it and finally he found it and he happily told his neighbour. He is very excited and very happy. That means a person is saved before God they feel happy for him.
The applicant said that the Holy Trinity was father son and spirit. The second coming was ‘once Jesus body goes he will come back for the redemption’. The first book of the new testament is Mathew. The Old testament in Genesis.
I asked who preaches the gospel in his church and he said there is a Hong Kong person and he preaches the gospel, he is an elder. I asked if it was the elders who preach the gospel and they are called brothers. He is a brother. Asked how he became a brother he said that there is training process they go through and the ones freshly join they will be selected and trained and they will become a brother. It took him 6 years to become a brother. He became a brother during COVID. He helps to explain things in gathering and better understand the Bible.
I put that his references do not refer to him being a brother. He said that you have to get a specific duty and be validated to become a Brother. He does engage in evangelising to strangers. He then said that many people have been saved. He said he started doing this after he came to Melbourne. I put he has not told Department or Tribunal previously that he evangelised to strangers. He said not in the documents, when he engages in the church one of main duties is to evangelise to strangers. I asked how he does that and he said that people he met at work, he will ask questions and ‘do you believe in God’. He asks them about their work and life. He asked other questions such as have you read the Bible and how do you understand the Bible. They will get into discussion of the Bible. I asked who he worked for and he said that the boss is Chinese, he is just casual. He works doing [specified] work and he does [specified functions]. I put that there would not be too many people that he worked with at any one time. He said there are many people and many people he hires are temporary. I put it was implausible he would be evangelising at work with casual employees when moving furniture or working on renovations as they are paid an hourly rate and the employer would not be happy about that nor would the client. He responded that he does so on the weekend when he catches up with these workers.
He said that he engages in private prayer and study and attends church gatherings and that he evangelises to others.
I asked the applicant why he would not attend a government approved church on return to China. He responded that in those churches they do not have the ability to evangelise and it is against the Bible. I put to him that he did not evangelise in China previously and asked why he would now evangelise. He said in China he was baptised and just had a shallow understanding of the Bible.
I put to the applicant that he stated at the previous hearing that [Brother A] stayed in China and he is still there running the church. He said that he is able to conduct services there. I asked him why he is not able to attend [Brother A’s] church. He said he migrated to [Country 1] many years ago and he returned to evangelise now. He said he does not know his recent situation.
I asked him the difference between practising Christianity in his church and doing so in a government approved church. He said that it is in the truth of the Bible. In his church the elders will be the leaders and everyone has their opinion or say. Jesus is their leader and they follow, they experience and they enjoy. In government church the leader is the government of China. I asked if there was a priest or reverend and he said that in Chinese church the reverend just talks alone but in his church everyone has a say. They believe Jesus is their leader. I asked if the government church did not. He said that they share some of the truths of the Bible but the local church endeavours to restore the truth as much as they can. In forms of group gathering everyone can stand up and say their opinion about God. Here everyone is equal, there is a ranking system that only people with experience have a say. Having a say is important. They cannot evangelise and gather as Local church group are forbidden

I put that the authorities in Fujian were more tolerant of underground churches than authorities in other areas, provided they operated discreetly. Persons engaged in active proselytization would likely be exposed to harassment, pressure and even violence and criminal sanction, although assessed that was more likely for leaders. I put that he has not proselytised in China or Australia. He said when he was in China he did not have a good understanding of the Bible until he came to Australia. He said that he is Christian and to speak for God is part of his normal life. As a Christian he should work for God, his plan and intention is to be part of us. He said that more people should be saved.
He goes to the church in Australia every week, on Sunday. Otherwise during the week he works, on the days he is not working he studies Bible and reads the message.
He said he is a Christian, no matter where he is. He works for God and he is the only one that he needs. ‘He is the only one we can rely on to do good work, to appreciate and enjoy’. ‘He will be the guide for us in our work so all we need to do is put God in front of the people in this world’.
Independent Evidence
Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians.
Independent evidence regarding Christians in China is found in DFAT reports. DFAT’S most recent report[1] states:.
[1] DFAT Country Information Report China 22 December 2021
3.22 China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim.
3.23 Religion in China is traditionally not as separate from everyday life as in the West. Chinese people, especially those of traditional Chinese faiths like Buddhism, Confucianism and Daoism integrate religious practice into their everyday life and lifestyles, including perhaps with home shrines and/or cultural festivities and events. Buddhist, Daoist and Confucian practices are not mutually exclusive; it is common to practice more than one these faiths. Some religious figures might be seen as better at answering prayers than others and some traditions might suit certain life events (for example, weddings and funerals) more than others. Adherents of non-Chinese religions like Christianity, Islam and new religious movements are more likely to separate their faith from their everyday lives and may label other beliefs as ‘superstition’. By extension, many Western religions and new religious movements require exclusivity and loyalty to that particular faith.
3.24 Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.
3.25 Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.
3.26 Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly.
3.27 Overall, 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 CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.
Christians
3.28 Christianity is growing rapidly in China. Estimates of the number of Christians vary and official figures only count those Christians worshipping at officially registered churches. The Chinese Government reports there are 38 million Christians. The 2020 US Department of State International Religious Freedom Report estimates there are 70 million Christians throughout China; higher estimates also exist.
3.29 Authorities have regulated Christianity to make it more ‘China-orientated’. Bibles are increasingly difficult to obtain and Bible references are censored online. Plans for authorities to ‘re-translate’ the Bible or issue state commentary have been reported by media, but have not been implemented at the time of writing. Sacred images in churches, such as those of the Virgin Mary, have been replaced with portraits of Xi Jinping in some churches.
3.30 Consistent with Yang’s theory of the three markets, many ‘grey-market’ churches have operated relatively openly for many years. Since about 2015, and to some degree earlier, the government engaged in a campaign to remove visible symbols of Christianity from church buildings. Both Catholic and Protestant churches have been affected. Christian media reports the removal of crosses on buildings consistently between 2015 and 2021, and across a wide geographic spread of provinces.
3.31 In a 2018 report, the Pew Research Centre ranked social hostility to people of different religions as low in mainland China, much lower than in Australia. Similarly low scores on hostility are found in other parts of East Asia. DFAT does not rule out the possibility of isolated societal discrimination. For example, a Christian may miss out on job opportunities based on fear that they will proselytise to clients and attract adverse government attention, but DFAT is not aware of incidents.
[…]
The Local Church (Shouters)
3.71 The term ‘Local Church’ refers to descendants of a Christian-based religious movement from the 1960s. They are often referred to as ‘Shouters’, which refers to the loud and energetic worship practices of the various groups. The group has experienced multiple splits and schisms and groups collectively designated as ‘Shouters’ may be diverse and have little or nothing to do with each other. The term ‘Shouters’ is sometimes used as a pejorative by critics or the government. Members of these groups may not call themselves ‘Shouters’, instead using ‘Local Church’ or ‘the Assembly’.
3.72 DFAT understands that Shouters are not as actively pursued in China as they once were. They may not, in practice, be considered or treated as a xie jiao. DFAT understands from sources that they may have been delisted as a xie jiao but different sources offer conflicting information. In Chinese-language internet searches, DFAT found a 2020 reference in the Chinese press that quoted Xining (the capital of Qinghai in Western China) police as saying that the Shouters ‘pretend to be Christianity’ (which is consistent with other anti-xie jiao messaging) and clearly states that Shouters are illegal.
3.73 Bitter Winter, a website critical of the Chinese Government, published an article in May 2021 that notes a ‘continuing’ crackdown in Beijing, Jiangsu and Guangxi. The article quotes American scholar J. Gordon Melton who claims that groups that accept the teachings of founder ‘Chairman Nee’ (in Chinese, ‘the Old Local Church’) are not a xie jiao but those groups who recognise the teachings of later leader ‘Watchman Lee’ or ‘Witness Lee’ (in Chinese ‘Local Church’ or perhaps ‘New Local Church’) are a xie jiao. DFAT is unable to confirm whether this is correct but understands that distinctions between different groups may not be well understood by authorities and arrests of either group should not be ruled out.
3.74 People identified as ‘Shouters’ are a diverse range of groups of Protestant Christian origin that may be indistinguishable from other small Protestant groups and may have no resemblance to other groups of the same origin. See the assessment for Protestant Christians. Whether or not they see themselves as ‘Shouters’ is not as relevant as whether they are perceived to be ‘Shouters’ by authorities. The term is understood and applied regardless of self-identification of adherents. Therefore, a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination. Local Church members do not attract the same amount of attention as Falun Gong or The Church of Almighty God, but DFAT notes inconsistent sources and information. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment under the same provisions of law as other xie jiao.
[…]
TORTURE
4.7 Torture is widely alleged in custody. See Detention and Prison. Human rights groups have alleged torture in Uyghur camps. See Uyghurs. Torture has been alleged in media reports to pressure nonregistered religious leaders to join official faith organisations. See Religion especially Catholics. DFAT is not aware of claims of torture outside these contexts or by non-state actors.
The 2019 DFAT report on China states:
Religion in Fujian
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.
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.
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.
DFAT assesses that individuals in Fujian have historically practised religion more freely within states 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 term ‘local church’ refers to descendants of a Christian-based religious movement from the 1960s. They are often referred to as ‘Shouters’, which refers to the loud and energetic worship practices of the various groups. The group has experienced multiple splits and schisms and groups collectively designated as ‘Shouters’ may be diverse and have little or nothing to do with each other. DFAT understands that Shouters are not as actively pursued in China as they once were. They may not, in practice, be considered or treated as a xie jiao (‘evil cult’). However, a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination.
According to sources, the term "Shouters" refers to a practice of worshipping out loud introduced by Witness Lee[2] . This practice of "'yelling'" is "a form of public, emotional repentance of sin by loud confession". The practice consists of "calling out 'Oh, Lord Jesus'" or "'calling on the name of the Lord Jesus'" during prayer. The Local Church "teaches a fundamentalist church system of belief" and is "an orthodox Protestant Christian theology that privileges the sharing of the communion elements as a sign of acceptance and fellowship" . The church "accepted a dispensational approach to Bible study that divides … biblical history into seven periods. We are seen as living in the sixth (the age of grace) but will soon move into the next, the age of the kingdom". Witness Lee taught that beginning with Martin Luther, the church was generation by generation being "restored" to its apostolic nature and practice. He introduced several practices he had "recovered" from his study of scripture including "calling upon the name of the Lord" and "prayer reading of the Bible and some new theological terms such as "mingling."
[2] Distinguished Professor 28 Sept. 2019; Cambridge History of Christianity Mar. 2008, 121
DFAT report[3] states that Witness Lee "believed that the gift of tongues could be taught, and that salvation could be had by saying 'O Lord' three times". The same source further states that the actions of believers involve "stamping their feet while shouting as part of their worship" .
[3] DFAT Country Report China 21 December 2017
DFAT report[4] states that Witness Lee created a "'Recovery Bible'" by annotating the standard Bible, and that the movement is also known as "'Recovery Church'".
[4] [4] DFAT Country Report China 21 December 2017
REASONS AND FINDINGS
On the basis of a People’s Republic of China [China] passport, I accept that the applicant is a national of China and is not a national of any other country, nor does the applicant have a right to enter and reside in any country other than China. Therefore, I find the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. I also find that China is the applicant’s “receiving country” for the purposes of s 36(2)(aa).
The applicant is married. His wife and children remain in China and he came to Australia with his brother. His [sister] was already in Australia. He claims to have been a member of the Local Church in China. He claims he was a Shouter and was imprisoned for 10 days there and released. He claims to have been baptized.
I did not find the applicant’s evidence about his past experiences in China to be credible and do not accept that he was a person of any interest to Chinese authorities at the time of his departure.
The applicant was asked to explain the procedure of the service of the church meetings in China and when put to the applicant that Shouters stomp their feet and he did not tell the Tribunal that shouters have a habit of stomping their feet when calling out the Lord, he said “yes”. I put he did not tell the Tribunal he was stomping his feet. He said because he is used to this environment and he didn’t say that much of the details as it has become a habit. I do not accept that a person who claims to have been a Shouter in China would have omitted describing stomping their feet because it was a habit. Nor do I accept that a Shouter would not understand what the Lord’s table meeting was and instead recounted that the most important purpose is for brothers and sisters to study the Bible. When questioned about church services in China he appeared to describe the Church services in Australia and was unable to coherently provide any information about his religious practices in China.
The applicant, despite claiming to have been arrested and detained was able to leave China with a passport issued in his own name without any problems and was able to renew the passport, in Australia, without any problems. Therefore, I do not accept that he was engaged with Local Church groups, arrested, detained, subject to reporting conditions or otherwise of any interest to Chinese authorities at the time of his departure.
Given my findings about the lack of any knowledge about the Shouters church in China, I have approached the applicant’s evidence about his subsequent religious beliefs and activity with considerable caution.
The applicant claimed at the Tribunal hearing that he has been involved with the Local Church in Australia since 2016 after his arrival. I accept that the applicant attends the [Church 1]. I accept the references provided attesting to the applicant’s church attendance in Australia.
Once discussing the [Church 1] the applicant’s evidence at the Tribunal hearing about his religious belief, knowledge and activity was spontaneous. He gave a convincing account of his regular religious activity – attending gatherings when he was not working, engaging in Bible reading from the Recovery version - which was consistent with available information about practises of the Local Church[5]. He was able to recount a specific story in the Bible, he knew the first book of each Testament and whilst his evidence at times was generalised, he was able to explain particular concepts such as the Holy Trinity and second coming, in response to questioning.
[5]

I am of the view that the applicant likely began his engagement with the [Church 1] in 2017. I note that applicant applied for a protection visa shortly after arrival in Australia. However, I find that whatever his initial motivation, the applicant’s religious belief and involvement has progressed. I have considered the possibility that he has continued to engage in this activity and learning for the purpose of strengthening his claims. In light of his knowledge about the Bible and his responses to other questions about Christian teachings, I gave him the benefit of the doubt and accept that he is now a genuine and committed Christian attending the [Church 1]. I am satisfied that his current conduct is otherwise than for the purpose of strengthening his claims and that s.5J(6) does not apply.
I accept the applicant both engages in private prayer and study and attends church gatherings at least weekly, and in light of the activities of that church to which he belongs I give him the benefit of the doubt and accept that he evangelises to others – ie co-workers. I accept that evangelism are important elements of his religious belief.
I find that the applicant’s level of commitment is such that, if he were to return to China, he would seek out a Local Church group, attend regular meetings, which would necessarily be in an unregistered house church, and would evangelise to others as he has done in Australia.
DFAT states that there is conflicting information as to whether ‘Shouters’ are still regarded as a xie jiao or ‘illegal cult’, although a more recent US State Department report indicates that they are.[6] The Canadian Immigration and Refugee Board reports that Chinese 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 state laws or regulations. Independent evidence, cited above, indicates that Chinese authorities have intensified efforts to suppress and eradicate certain Christian groups including the Shouters, leading to detention and imprisonment of hundreds of members. Government treatment of the group can vary by location and largely depends on relationships among local political authorities, the local registered church leaders, and leaders of the Local Church. Although many groups are able to operate with only occasional police harassment, while the group remains on the list of ‘cults’, members will remain under threat of arrest and imprisonment.[7]
[6] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021; US Department of State, ‘2022 Report on International Religious Freedom – China’, 15 May 2023.
[7] Research Directorate, Immigration and Refugee Board of Canada, ‘CHN106376.E China: The "Shouters," including origins and founders, core beliefs, activities, and treatment of members by authorities (2017-October 2019)’, 23 October 2019.
Identification as a ‘Shouter’, regardless of which church an adherent actually belongs to, may lead to government attention including imprisonment under provisions prohibiting ‘illegal cults’.[8] DFAT assesses that regulations prohibiting proselytising are generally enforced across China and 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 CCP to be closely tied to other ethnic, political and security issues.[9]
[8] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
[9] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
Whilst DFAT assesses that authorities in Fujian were more tolerant of underground churches than authorities in other areas, provided they operated discreetly, the situation can vary in Fujian, and those engaged in active proselytization would likely be exposed to harassment, pressure and even violence and criminal sanction, although assessed as more likely for leaders.[10] The more recent information does not indicate that Local Church members in Fujian can freely practise and proselytise without adverse attention.
[10] DFAT, ‘Thematic Report on Fujian Province, People’s Republic of China’, 16 December 2016.
According to the US State Department, authorities reportedly used vague or insubstantial charges, sometimes in connection with religious activity, to convict and sentence leaders and members of religious groups to years in prison. NGOs and media reported authorities used violence during arrests and tortured detainees, including by forcing them to maintain stress positions, beating them, and depriving them of food, water, and sleep, and subjected them to forced indoctrination.[11] DFAT also refers to reports of mistreatment and torture in custody.[12]
[11] US Department of State, 2022 International Religious Freedom – China’, 15 May 2023.
[12] DFAT, ‘Country Information Report People’s Republic of China’, 22 December 2021.
In light of the above independent evidence I am satisfied that a person practicing as or identified as a ‘Shouter’/Local Church member faces a risk of harassment, detention, and physical mistreatment. I am satisfied that were the applicant to return to China, within a reasonably foreseeable future and join in Local Church gatherings and continue to evangelise, there is a real chance the applicant would suffer serious harm for his religious activity. I find that the harm would be for the essential and significant reason of his religion and would involve systematic and discriminatory conduct.
I also find that the real chance of persecution relates to all areas of China and that effective protection measures are not available. I find there are no reasonable steps the applicant could take to modify his behaviour to avoid the real chance of harm – this would involve requiring him to alter or conceal his true religious beliefs or cease to be engaged in the practice of his faith.
I am satisfied that the applicant has a well-founded fear of being persecuted and that he is a refugee within the meaning of s.5J(1).
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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-LA, 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 3202

4 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction