1918250 (Refugee)

[2019] AATA 6434

1918250 (Refugee) [2019] AATA 6434 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918250

COUNTRY OF REFERENCE:                   China

MEMBER:Irene O'Connell

DATE:13 September 2019

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 13 September 2019 at 2:04pm

CATCHWORDS        

REFUGEE – protection visa – China – religion – Christianity – membership and activity in underground Catholic church – harassment by police – acquired new passport in different province and paid a people smuggler – evidence detailed and clearly articulated – country information – status of Christianity and Catholic church in China and Fujian – closures of underground churches – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5J(3)(c)(i), 36(2), 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 June 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of China, arrived in Australia [in] February 2018 on a visitor visa. She applied for a protection visa on 8 May 2018.The applicant’s husband currently resides in Australia and has an application for a protection visa currently under review before this Tribunal.

3. The applicant claims to be in need of Australia’s protection because she is a member of the underground Catholic Church in China and fears harm from the Chinese authorities because of her religion.

4. For the reasons that follow the Tribunal has concluded that the applicant is a person in respect of whom Australia has protection obligations and remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.

   RELEVANT LAW

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

6. 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.

7. Section 5H of the Act defines a refugee, as a person who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

8. Under s.5J(1) of the Act, a person is taken to have 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 and 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.

9. Section 5J(2)–(5) of the Act further defines the meaning to be attributed to a well-founded fear of persecution in the following manner:

   (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.

10. 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).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) as follows. A person will suffer significant harm if: he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.

12. Section 36(2B) of the Act sets out certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to: relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm or where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.  

    CLAIMS AND EVIDENCE

    Claims as set out before the Department

13. The Tribunal has before it the Department file containing the applicant’s protection visa application. Also included on the file is a recording of the interview by the delegate with the applicant on 22 May 2019 and the decision record of the delegate.

14. Additional documents on the Department file include:

    ·Letter of support from Father [A], a pastor from [a Church organisation], dated [May] 2019.

    ·Seven photographs of the applicant attending church activities with the [Church organisation]. 

15. In her application for a protection visa, the applicant lists her nationality as Chinese, her ethnicity as Han and religion as Roman Catholic. She lists nine years of education and her occupation as [Occupation] and business owner. The applicant’s parents, [sibling], and [number] children live in Fuqing, Fujian, China. The applicant’s daughter was born in [a Special Administrative Region].

16. In her protection visa application, the applicant sets out the following. She was introduced to the underground Catholic Church in 2006 through her classmate and was baptised [in] July 2006.  Her belief in the Catholic Church came as a result of her becoming pregnant after praying for a child. After the birth of her second child her husband also began to believe in the Catholic Church and was baptised [in] August 2009. On the same day she and her husband also received the sacrament of marriage. Thereafter she and her husband actively assisted in the development of their local underground Church and used their [building] for underground church activities.

17. They were raided by the police [in] October 2013 while running a retreat for school students in their [building]. Her husband was arrested and detained for [a number of] days and tortured.  The applicant raised [amount] yuan to pay a fine for her husband’s release. After her husband was released their business licence was cancelled so they had to close the business and sell their stock cheaply. Her husband then made a living by using his car as a private [service] and also transported priests secretly to and from gathering places.

18. [In] April 2015, her husband was chased by police while transporting a priest in his car. He managed to evade them. Three police officers showed up at the applicant’s house that evening to look for her husband.  Before they left they warned the applicant to contact her husband as soon as possible and to convince him to surrender to police. In the one and a half months following this incident, the police came to her house every few days to ask for her husband’s whereabouts. She started to feel as though her phone was being monitored and that she was often followed by strangers. The applicant did not have any contact with her husband and feared that he would be arrested again.

19. The applicant claims that sometimes when she was being questioned at her home, they would sexually harass her. The applicant limited her participation in church activities because the police were monitoring her.

20. The applicant states that she fears the police would take her away because she was attending underground Catholic activities in China and her husband advised her to leave China.

    Claims as set out before the Tribunal

21. The applicant did not make a written submission to the Tribunal but gave oral evidence at a hearing conducted on 22 August 2019 and resumed on 29 August 2019. The hearing was conducted with the assistance of a Mandarin interpreter. The applicant was unrepresented. Her husband also gave oral evidence at the hearing.

22. The applicant was asked to provide evidence about her religious practices and beliefs when living in China. The applicant gave evidence to the effect that she attended Mass whenever a priest was available to say Mass. When there was no priest, she would gather with other church members and they would recite the rosary and pray for the dead and read scripture. She provided a detail description of the prayers that go to make up the rosary.

23. She also gave evidence that at home she and her husband would each night pray the rosary before going to bed. She stated that they would celebrate special events such as Easter and Christmas and the Assumption of Our Lady and Pentecost Sunday. She provided a detailed description of Eucharistic adoration and the events leading up to Easter Sunday.

24. When asked if she thought there were any differences between the Catholic Church as she experienced it in Australia and the Catholic Church in China, she stated that most church activities in China are carried out secretly in different locations and by word of mouth. In Australia, by contrast, there are large beautiful churches and people openly practise their religion.

25. When asked about the difference between the underground church in China and the official church she stated that the registered official church is a creation of the Chinese government while the underground church links back to the real Catholic Church.

26. When asked why she and her husband had a second marriage ceremony when they were already civilly married, the applicant stated that the religious ceremony was before God and that the marriage was for the rest of their lives.

27. In terms of her participation in religious activities in Australia, the applicant stated that she attended Mass on Sunday and helped out at the church and she attends a bible reading group.

28. When asked why she came to Australia, the applicant stated that in China she could not practise her religion in a normal way and that she was monitored by the authorities following the events with her husband. She stated that in Australia there is religious freedom and she hoped that her two children could come and join herself and her husband someday.

29. In terms of her ability to come to Australia she stated that she paid a people smuggler and acquired a new passport from a different province in order to bypass local authorities.

30. When the Tribunal put to the applicant that country information indicated that you could not depart China without approval from the government she stated that a smuggler had arranged things for them.

31. The applicant’s husband gave evidence to the Tribunal that he had paid considerable money to the smuggler so that his wife could leave China. He stated that his wife was harassed by the police in China and he was concerned for her safety.

    Country information

32. In accordance with Ministerial Direction No.84 made under s.499 of the Act, the Tribunal is required to have regard to relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes.

33. The Tribunal has had regard to the DFAT Country Information Report, People’s Republic of China, dated 21 December 2017, which sets out the following in respect to religious practice in China:

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

    3.16 It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.

    3.17 In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.

    Government Framework regarding religion

    3.19 Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.

    3.20 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureau, have significant discretion in implementing the regulations.

    3.22 Unregistered religious organisations are illegal and vulnerable to punitive official action. Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.

    3.23 In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.

    3.24 Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention …

    Catholics

    3.43 The CCPA has managed Catholic affairs in China, including the appointment of bishops, since 1957. The CCPA does not recognise the authority of the Holy See to appoint bishops. Relations between the Vatican (which recognises Taiwan) and the PRC have varied over time. Between 1993 and 2010, the Vatican had discreet input or even right of approval for bishop candidates in some provinces prior to their ordination by the CCPA. Since 2010, the CCPA has ordained most bishops without Vatican input. In April 2013, the Regulation on the Election and Consecration of Bishops required candidate bishops to publicly pledge support for the CCPA. Approximately 40 Vatican-ordained bishops remain independent of the CCPA.

    3.44 In 2016 the Vatican and CCPA agreed on the ordination of two bishops, but there is still no agreement on the treatment of bishops ordained by each respectively but not recognised by the other. In-country contacts say discussions between the Vatican and Chinese officials have led to little change in the treatment of members of the underground Catholic Church. In May 2017, Vatican-appointed Bishop Peter Shao Zhumin was arrested and detained at a location unknown to the Vatican or his family. Bishop Thaddeus Ma Daqin was released from four years of house arrest in 2016 after he published a statement strongly supporting the CCPA.

    3.45 In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. DFAT understands this is no longer required in areas where the Catholic Church has built trust with local officials over time.

    3.46 Catholics in China can experience officially-sanctioned harassment and discrimination where authorities regard their activities to be politically sensitive. Catholics in China face a low risk of societal discrimination.

1. The Tribunal has also had regard to more recent country information specific to the province of Fujian and sourced from Reuters, China Aid Association and Bitter Winter. The article ‘Msgr. Guo Xijin and blackmail in the diocese of Mindong after the China/ Holy See agreement’, Asia News (4 March 2019), states that:

   The Fujian Diocese of Mindong has over 90,000 Catholics, of which at least 80,000 belong to the underground Church, and is served by 45 priests, 200 nuns, 300 consecrated lay people and hundreds of lay catechists. There are only 12 priests of the Patriotic Catholic Association in the diocese.

2. In the article ‘Underground Catholic Churches Closed in Fuzhou Archdiocese', Bitter Winter (17 December 2018), it was reported that:

   In Fuzhou city, in coastal Fujian Province opposite Taiwan, authorities have raided and harassed multiple meeting venues of the Underground Catholic Church on the grounds that “to hold gatherings, it is necessary to join the Chinese Patriotic Catholic Association (CPCA).” During the raids, believers were photographed and videotaped, and their personal information was registered. Plainclothes police took secret photos and videos of church clergy while they were changing into their clerical vestments.

   In late September, an underground Catholic meeting venue, which could accommodate more than 1,000 worshippers, was closed. According to the building manager, the Vatican-China deal of 2018 seems to have emboldened the Religious Affairs Bureau. Many underground meeting venues have been placed under surveillance, and priests are often summoned for questioning by the National Security Bureau.

   The building manager remains sanguine, saying, “We’re not afraid of being questioned. We didn’t do anything wrong. We want a separation of church and state. The government cannot control our beliefs.

   Around the same time, police in Fuzhou city’s Jin’an district shuttered a meeting venue in an eastside apartment building, saying, “believers must hold their gatherings at an official church (CPCA).” Parishioners at this chapel were required to present their documentation and were videotaped.

   In November, the local police limited the size of gatherings to a maximum of 50 people at a Catholic chapel in a basement in the Wanxiangcheng residential district. In addition, prior to gatherings, every believer must present their identification and register, or face the chapel being closed down.

   According to local believers, at least four chapels in Fuzhou city have been forced to close. At several other venues, the religious activities and number of congregants have been restricted. Believers have been forced to transfer to other chapels and change the time of their gatherings. Some congregations have arranged for people to stand guard during mass, in the hope of discouraging police raids.

3. In the article ‘And Persecution of Underground Catholics Continues’, Bitter Winter (12 January 2019), it was reported that:

   The Chinese government further uses the tentative agreement with the Vatican to force all underground churches to join state-approved ones. Never mind a nearly four-month-old provisional agreement with the Vatican – one that was supposed to ease decades-long tensions regarding the appointing of bishops – the Chinese Communist Party, or CCP, is upping its suppression and persecution of underground Catholic churches and believers.

   In early December, officers from a police station in Taining county of the prefecture-level city of Sanming in China’s southeastern Fujian Province stormed into a local underground Catholic church meeting place in order to arrest the church’s priest and nuns. When the mission failed, the officers threatened an elderly believer, saying: “If we can’t find the priest, then we will take all of you away.”

   The following day, the police once again descended on the meeting venue, conducting illegal searches of the dormitory and harassing the believers there.

   According to one believer, seals were placed over the door of every room inside the church. The statue of the Holy Virgin in the center of the courtyard was removed and the church’s cross dismantled.

   “The government says that we were holding illegal gatherings. They told us to join the Chinese Patriotic Catholic Association and that we have to raise the national flag and sing the national anthem in the future,” one believer said. “They are making us leave God and believe in them [the government].”

4. In ‘House Church in Fujian Shut Down 8 Times’, 24 March 2019, Bitter Winer reported that in 2018, Fujianese police intervened in the House of Bethel church located in Fuzhou city requesting that the church be officially registered with the state’s governing religious body:

   In May 2018, officers from the local police station came to inspect the church on the grounds that it was “causing a disturbance to the public.” The police claimed the meeting venue didn’t have a religious activity venue registration certificate and ordered them to join the government-sanctioned Three-Self Church, or else be ordered to cease gathering altogether. The police also threatened them, saying all the Bibles and hymnbooks be removed or else tossed out by the authorities.

   Since the believers were unable to find a meeting venue at that time, they had no choice but to continue their gatherings there with great caution. To prevent police raids, after each gathering ended, they hid all the Bibles and hymnbooks. Soon afterward, personnel from the local fire department came to the church to conduct an inspection and sought to shut down the church on the grounds that “fire control measures were inadequate.”

   Since the church was founded, in 2006, it has continually had to find new congregation places to rent.

5. In the article ‘Fujian church experiences multiple raids', China Aid Association, 8 November 2018, China Aid reported that the Christian Yongfu Church in Fuzhou had been ‘harassed relentlessly by authorities over the past few months’ after the church refused to make building modifications'. Accordingly:

   Yongfu Church, located in Fuzhou, has been raided eight times in the past two months. When the church refused to make modifications to their building in order to fit the Communist Party’s agenda, 40-50 city management officers went to a Christian’s home and threatened those there. He asked how the evil of cracking down on Christianity could be ignored by the central

   government. His father was taken to the police station, even though he had been through two bypass heart surgeries and a cerebral haemorrhage.

   […]

   The authorities also went to the church on Oct. 14 and 21 and ordered the Christians to no longer attend services there. They were reportedly very rude, and one of them bullied those gathered for the service. When they left both times, they said they would be back next week. Their electricity had been cut off.

6. In the article ‘House churches in Fujian, Jiangxi and Guizhou received government warning', China Aid, 19 May 2018, it was reported that ‘local governments in Fujian, Jiangxi and Guizhou sent out notifications shutting down the house churches and requiring the members to join the government sponsored Three-Self Church’. Reportedly some churches received written warnings while others received verbal warnings. According to the report:

   The Chinese officials have intensified the persecution against house churches since the beginning of this year even preventing the church members from gathering. In early May, a house church in Nanpin County, Fujian province received one of these notices. An anonymous local Christian said, “The officials from the county religious affairs bureau forbade us to meet. They said that our gatherings were illegal. They also told us that we should go to the Three-Self Churches if we wanted to meet. In fact, this church only has 20 to 30 regular members, who are all residents nearby. There are no outsiders.”

   A local Christian named Lin said that the government has treated the house churches more and more harshly: “The persecution has escalated. The Communist Party members, civil servants, and teachers are not allowed to have religious beliefs. The government of Nanping is investigating local house churches and recording the personal information of the Christians.”

   FINDINGS AND REASONS

   Country of reference

7. On the basis of the applicant’s passport presented to the Tribunal at the hearing the Tribunal is satisfied that the applicant is a national of China. Accordingly, the Tribunal finds that this country is the country of reference with respect to the refugee criteria and the receiving country in respect to the complementary protection criteria.

   Does the applicant have a well-founded fear of persecution should she return to China?

8. The Tribunal finds that the applicant is a Catholic and that she is an adherent of the underground Catholic Church in China. The Tribunal makes these findings on the basis of the applicant’s oral evidence. At the hearing the applicant gave a detailed account of her religious practices most particularly those practices that are particular to the Catholic Church. She demonstrated a detailed knowledge of the rosary and sacraments such as Confession and Mass.  She articulated clearly why it was important for her to undergo a second marriage ceremony within the Catholic Church.

9. The Tribunal accepts that the applicant has continued to practise as a Catholic since her arrival in Australia. The applicant has provided documentary evidence in terms of a support letter verifying her regular attendance at [a] Catholic Church in [Suburb]. The applicant’s knowledge of the Catholic religion was detailed and told in the manner of an actual lived experience. 

10. The applicant also demonstrated, at the hearing before the Tribunal, an understanding of the difference between the underground Catholic Church and the official Government controlled Catholic Church in China. It was evident in her responses to questions that she not only had a clear understanding of the differences between the two but a strong commitment to and involvement with the underground Catholic Church in China.

11. In light of the applicant’s commitment to the underground Catholic Church, the Tribunal is satisfied that if the applicant and her husband were to return to China they would re-engage with the underground Catholic Church.

12. The Tribunal notes and accepts the country information set out above at paragraphs 34 to 39. This country information indicates that the Chinese authorities regularly close down gatherings of the underground Catholic Church and at times detain participants in such gatherings. The applicant’s own account of the police raid on her warehouse whilst a religious activity of the underground church was underway and her husband’s detention is consistent with the country information set out above.

13. The Tribunal finds that if the applicant and her husband were to return to China and resume association with the underground church there is a real chance that she would face serious harm such as imprisonment because of this.

14. The country information indicates that members of the underground Catholic Church could avoid harm from the authorities in terms of arrest and detention if they confined their religious activities to attending the official or Three-Self Churches. The Tribunal notes and accepts the applicant’s evidence that she does not consider that the government sponsored   official Catholic Church is the true Catholic Church, despite attempts by the Vatican to reconcile the two churches.

15. As set out in s.5(J)(3) of the Act a person is taken not to have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country. However, as set out in s.5(J)(3)(c)(i) these reasonable steps do not include requiring a person to alter his or her religious beliefs or conceal them or cease to be involved in them or practise them.

16. The Tribunal is satisfied on the basis of the applicant’s oral evidence that requiring the applicant to attend the officially sanctioned Catholic Church would be requiring her to alter her religious beliefs and is therefore not reasonable.

17. Nor would the applicant relocating to a different part of China enable her to avoid the harm she fears as she fears harm from state actors.

18. Accordingly the Tribunal finds that the applicant has a well-founded fear of persecution by reason of her religion and is unable to avail herself of effective protection measures, as it is the state that is the perpetrator of harm.

19. 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).

    CONCLUSION

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

    Irene O'Connell
    Deputy Division Head