1920470 (Refugee)

1920470 (Refugee) [2024] AATA 4386 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1920470

COUNTRY OF REFERENCE: China
MEMBER:Ben Lumsdaine
DATE:13 September 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 13 September 2024 at 1:41pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – house church – detention – exit procedures – delay in applying for protection – 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 1 July 2019 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 11 April 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant sought review of this decision on 26 July 2019. The applicant appeared before the Tribunal on 5 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year-old man from China. The applicant arrived in Australia [in] July 2017 travelling on a valid Chinese passport issued [in] 2014.
Evidence before the Department of Home Affairs (the Department)
The applicant applied for a protection visa on 11 April 2019. In his application for a protection visa, the applicant made the following claims:
·     His uncle was part of a house church. This church was not recognised and local government pressured him to join the Patriotic church.
·     One day while he was holding a gathering police came in, arrested his uncle and brought him to the police station. His uncle’s church was labelled a cult and the applicant was warned he would be arrested if he continued to have a connection with his uncle.
·     After his uncle was released, the applicant’s family decided it would be safer for him to go overseas.
·     After coming to Australia in July 2017, the police have continued to harass his family and his family have warned him not to return to China out of concern for his safety.
·     He fears being harmed because of his religion if he returns to China.
On 23 April 2019, the applicant was sent a letter from the Department acknowledging they had received a valid protection visa application and informing the applicant that an appointment had been made for him to provide biometrics information on 30 April 2019. The applicant attended the biometrics appointment at the Department.
On 29 May 2019, the applicant was invited to an interview with a delegate of the Minister to be held on 17 June 2019. The invitation was sent by email to the email address provided to the Department as the address for correspondence in the applicant’s protection visa application and the Department’s letter acknowledging receipt of that application. The invitation to an interview also contained information about the interview translated into Mandarin. The applicant did not attend the interview on 17 June 2019. No reason was provided for not attending the interview and no further evidence or submissions were provided by the applicant to the Department.
On 1 July 2019, a delegate of the Minister refused the applicant’s protection visa application. The delegate found the applicant’s uncle was a member of an underground Christian church. The delegate found that the applicant’s ability to leave China lawfully indicated he was not of interest to the Chinese authorities. The delegate found that the applicant was a leader of a house church or a proselytiser and did not have a profile in China that would mean he is of interest to the Chinese authorities. For this reason, the delegate found the applicant would not face a real chance of serious harm for his religion on return to China and that he will not face a real risk of significant harm in China.
The applicant was notified by email sent to the email address provided in the applicant’s protection visa application.
Evidence before the Tribunal
On 26 July 2019, the applicant applied for review of the delegate’s decision to refuse his protection visa application. The application for review included a copy of notification of the delegate’s decision to refuse his application and the reasons for the decision.
Following his application to the Tribunal, the applicant provided further documents to the Tribunal, including a supplementary statement in English and Chinese on 14 May 2024 and a baptism certificate dated [in] April 2023.
On 4 July 2024, the applicant provided an updated supplementary statement with corrections to some mistakes in the supplementary statement sent to the Tribunal on 14 May 2024. The revised supplementary statement contained further information, which can be summarised as follows:
·     He grew up in the care of his uncle as his parents were often absent for work. His uncle’s family are all Christians and his uncle is an elder in the house church.
·     His uncle told him that he was baptised when he was [age] years old, though he cannot remember this. He attended house churches while at Elementary school but stopped attending the house church while he was in Middle school because his school forbade him and he was afraid to attend though he still considered himself a Christian.
·     In 2014 he went to [Country 1] to work and started to attend a church there.
·     In 2017 he joined his uncle’s house church after returning to China. In 2017 the church was raided by police. Attendees were told to go to the ‘patriotic church’ or be punished but his uncle continued to hold meetings.
·     Before Easter 2017, the police came to his uncle’s house again and arrested his uncle and detained him for a week. He was later required to attend a training course and was kept in custody for 3 months.
·     He decided to go to Australia to find a church, a partner and to find work.
·     In Australia, he was misled about his visa status and did not realise until Spring Festival in 2019 that the agent whom he believed had applied for a visa for him had not in fact applied for it.
·     In April 2019, he met a fellow worker who was Christian who explained to him that he could apply for a protection visa.
·     In 2019, he started attending [Church 1] in [Suburb 1]. He has continued to attend this church since then, though from 2020–22 the church ceased its activities in response to the COVID-19 pandemic. He started to attend the church again in early 2023 and was baptised [in] April 2023.
·     He feared returning to China as religious persecution was getting worse and he feared he would be unable to practise his faith there and would also be punished not only for his activities but his family members’.
On 17 July 2024, the applicant was invited to a hearing on 29 August 2024, which was later rescheduled to 5 September 2024.
On 3 September 2024, the applicant provided further supporting documents, including photographs of the applicant attending church activities at [Church 1] and written letters from [Pastor A] and [Elder A], Elder of [Church 1].
The applicant attended the hearing on 5 September 2024 to give further evidence. Where relevant, the evidence given by the applicant at the hearing is set out in the section ‘Analysis – assessment, reasons and findings’ below.
No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.
Country information
Christianity in China
China is officially an atheist state.[1] Though the Constitution provides for the freedom of religious belief it limits protections to ‘normal religious activities’ and prohibits activities that ‘disrupt public order, impair the health of citizens or interfere with the educational system of the state’ and these terms are not defined. [2] Chinese Communist Party (CCP) members are required to be atheist[3] and minors are not permitted to participate in religious activities or receive a religious education.[4]
[1] United States Commission on International Religious Freedom Annual Report 2023, United States Commission on International Religious Freedom (USCIRF), 1 May 2023, p. 17
[2] 'Constitution of the People's Republic of China (adopted December 4, 1982)', People's Daily (Renmin Ribao), Information Office of the State Council, People's Republic of China, 1 January 2004, Article 46, p. 7
[3] '2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', United States Department of State, 15 May 2023, p. 10
[4] The Regulations on Religious Affairs (the Regulations) as revised in 2017 and effective from 1 February 2018, heavily restricts religious education and practice for minors, ‘Regulations on Religious Affairs (2017 Revision)', State Council of the People's Republic of China, State Council of the People's Republic of China [English.gov.cn], 1 February 2019; '2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', United States Department of State, 15 May 2023, p. 14
The PRC recognises 5 official religions, including Protestantism and Catholicism, and 7 national religious organisations or patriotic associations, including the Chinese Catholic Patriotic Association (CCPA) and Bishops’ Conference of the Catholic Church in China (BCCCC), the Protestant Three-Self Patriotic Movement (TSPM) and China Christian Council (CCC).[5] Christians in China are broadly divided between those belonging to state-sanctioned churches (or patriotic associations) and unregistered or ‘house churches.’
Protestants in China
[5] State-Controlled Religion and Religious Freedom Violations in China, Mingzhi Chen, United States Commission on International Religious Freedom (USCIRF), 19 December 2022, p. 1
The TSPM is the official governing body for Protestant churches in China and the single state-sanctioned Protestant church in mainland China.[6] Churches unaffiliated with the TSPM are not able to register as churches.[7] Recent reports indicate that Protestant pastors have recently undergone intensive training to deliver ‘strict governance’ of churches along patriotic and politically correct lines ‘deepening the sinicization’ of the church.[8] As part of this process, crosses have been removed from churches and replaced with portraits of Xi Jinping and the surveillance cameras have been installed on churches.[9] The Chinese government’s control of churches is to tighten further in the future.[10]
[6] DFAT Country Information Report People’s Republic Of China, 22 December 2021, at [3.32]
[7] 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', US Department of State, 26 June 2024, p. 8
[8] 'China trains politically correct Protestant pastors', Radio Free Asia (RFA), 30 July 2024, available at: 'China trains politically correct Protestant pastors', Radio Free Asia (RFA), 30 July 2024
[10] Ibid.

Most Protestants worship in unregistered ‘house’ churches, often literally a person’s house[11] and sometimes referred to as a ‘family church’.[12] Protestantism has been observed to represent the ‘most important challenge’ to the Chinese government’s campaign to sinicise religion in China due to its ‘connections with powerful Protestant denominations in the west’.[13] The government has increasingly sought to force house churches to the authority of the TSPM and those churches that refuse to register with it have been closed or threatened with closure.[14] Authorities have raided churches, imposed administrative penalties and criminal sanctions and used harassment to close many house churches.[15] Church members have been arrested for refusing to register with the TSPM.[16]

[11] DFAT Country Information Report People’s Republic Of China, 22 December 2021, at [3.33]

[12] See e.g. 'Prominent Protestant House Church Pastor In Beijing Denied State Pension Amid Crackdown On Faith', Christianity Daily, 23 January 2021; 'Underground' Christians shun China's official church’, The Seattle Times, accessed on 8 July, 2013

[13] 'China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)', Research Directorate, Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada, 10 May 2022, Section 1.2

[14] DFAT Country Information Report People’s Republic Of China, 22 December 2021, at [3.33]

[15] 'International Religious Freedom Report for 2023 - China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', US Department of State, 26 June 2024, pp. 25-26

[16] 'Chinese Christians detained for links to ‘illegal organization’, UCA News (UCAN), 22 March 2024; 'Geng Zejun sentenced to over a year', China Aid Association, 22 August 2022; ‘2021 Report on International Religious Freedom: China (Includes Tibet, Xinjiang, Hong Kong, and Macau)', United States Department of State, 2 June 2022, p. 21-22; 'Chinese court jails Christian pastor for eight years', UCA News (UCAN), 17 February 2022; 'Chinese Protestant house church pastor ‘faces decade in prison’ on fraud charges' 'Chinese Protestant house church pastor ‘faces decade in prison’ on fraud charges', South China Morning Post, 16 October 2020

There is significant variation in practice from place to place and community to community with some small churches able to continue worship without government interference.[17] The larger the church, the more likely they are to receive government attention.[18] Overall, DFAT assesses Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely.[19]

Monitoring and surveillance

[17] DFAT Country Information Report People’s Republic Of China, 22 December 2021, at [3.34]

[18] Ibid. at [3.33]

[19] Ibid. at [3.35]

The CCP deploys a vast internal security apparatus to maintain stability and support for CCP policies throughout the country.[20] The Department of Foreign Affairs and Trade (DFAT) Country Information Report People’s Republic Of China, 3 October 2019 (the 2019 DFAT Report) stated ‘[s]ecurity personnel and surveillance technology are ubiquitous throughout China’[21] and reported estimates that 170 million security cameras had been installed in cities and towns across the country.[22]

Exit control procedures

[20] Ibid. at [2.55]

[21]DFAT Country Information Report People’s Republic Of China, 3 October 2019. at [2.56]

[22] Ibid. at [2.57]

Exit from China is strictly controlled. The government has ‘refused passports to millions of people on these grounds, many of them religious and political dissidents…’[23] Similarly, Article 12 of the Exit-Entry Administration Law forbids exit by Chinese nationals in a number of circumstances including where they are sentenced to criminal punishments, suspects or defendants in criminal cases, are involved in unsettled civil cases or may endanger national security or interests.[24] At the time the applicant left China, DFAT reported:

Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.[25]
[23] Ibid. at [5.40]
[24] IOM, Lili Song, Special Issue Article, Exit regulation in the People's Republic of China: Law, policy and practice, 19 August 2022
[25] DFAT Country Information Report People’s Republic Of China, 3 October 2019, at [5.40]

DFAT has also reported that ‘Chinese passports use sophisticated technology and authorities have a high surveillance capability, particularly at train stations, airports and ports’. [26] Further, an ordinary citizen ‘would find it difficult to bribe border protection agents because of sensitivities to corruption, and the professional and comparatively well paid status of public security officials’. [27] Nonetheless, there are some reports of people of interest to the Chinese government being able to exit controls in limited circumstances.[28]

CONSIDERATION OF CLAIMS AND EVIDENCE

[26] Ibid. at [5.61]

[27] Ibid. at [5.61]

[28] See e.g. ‘China says US should not interfere after human rights lawyer 'deported' back’, Laurie Chen, Reuters, 12 October 2023; ‘Laos deports human rights lawyer who was fleeing state pressure back to China', Dake Kang, AP News, 15 September 2023; ‘He Fled China’s Repression. But China’s Long Arm Got Him in Another Country', Tiffany May, The New York Times, 26 August 2023; ‘Detention of Chinese Lawyer in Laos Highlights Risks of Fleeing China', William Yang, VOA News, 8 August 2023, ‘Veteran dissident Guo Min arrives in US to rejoin family', Gu Ting, Radio Free Asia (RFA), 9 November 2023, ‘Man flees China on water scooter, crossing 200 miles of sea to S. Korea', Andrew Jeong and Lyric Li, The Washington Post, 23 August 2023

Relevant law

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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis – assessment, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
Nationality and receiving country
The applicant claims to be a citizen of China and no other country. The applicant provided the Department with a copy of his Chinese passport. The delegate was satisfied with the applicant’s identity and the authenticity of his passport. The applicant also presented his Chinese passport to the Tribunal at the hearing and the Tribunal is satisfied with the applicant’s identity and the authenticity of his passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and considers China is the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Additional evidence at the hearing
At the hearing, the applicant provided further evidence in relation to his claims, which can be summarised as follows.
The applicant confirmed that he had prepared his protection visa application in April 2019 himself. He explained he prepared the subsequent evidence provided to the Tribunal with the aid of his girlfriend and online translation applications. He told the Tribunal that his mother had died [in] September 2024. Given the recency of his mother’s death, the Tribunal confirmed that the applicant wanted to proceed with the hearing before proceeding. The applicant confirmed that his father still lived in his hometown in Shandong and his sister lived in the next town. He is in regular contact with his sister by telephone and WeChat and speaks with his father through his calls to his sister. He explained he had been living with his girlfriend and her [children] in Sydney for almost 2 years.
The applicant’s evidence was that his parents shared a house with his [uncle]. His mother was Christian but his father was not. He was primarily in his uncle’s care from the age of [age] until around [age range] while his parents worked in different towns. His uncle was a leader of a family church. His uncle told him that when the applicant was [age] years old, he was baptised but the applicant cannot remember his baptism. While he was at Elementary school he attended the meetings of the family church at his uncle’s house. His uncle had been hosting meetings of the family church in his house for decades. Around 30 people attended the family church. They used to meet every week in his uncle’s house and sing, read the Bible, pray, listen to preaching and share stories of their experiences. His uncle had tried to insulate his house to minimise noise during the meetings but had been caught hosting these meetings many times.
The applicant stopped attending meetings while he was at Middle school as he was warned he would not be able to continue to attend school if he went to the meetings. He continued to pray and read the Bible during this time. After he finished school, the applicant continued to work in his hometown. During this time, he attended meetings around once per month and sometimes went to the place of other church brothers and sisters.
In 2014, after moving to [Country 1], he started going to church after 3 months but services were in English and so then started attending a family church which he was introduced to through his landlord.
Shortly before Easter 2017, while the family church was preparing celebrations for Easter, a church meeting was raided by around 10 police officers. The police officers told the attendees the church meeting was illegal and asked who the leader was. The applicant’s uncle stepped out and said he was. The police said to his uncle they had warned him before and would now have to detain him and give him training. The applicant was given a warning not to attend the family church meetings again and required to report around once per week to the police station. His uncle was detained for 3 months. The applicant visited his uncle in prison 3 times but was unable to have an open conversation with him as the conversations were monitored. The applicant decided to travel overseas and made arrangements to travel to Australia. He continued to pray and read the Bible but did not attend church meetings during this time. He reported to police about 10 times before leaving for Australia in July 2017.
In Australia he was taken from the airport to a house in [Suburb 2] and worked in a [business 1]. He was told to speak to an agent to apply for a student visa and that the agent would handle all the paperwork. The applicant did not hear from the agent after paying him. He continued to work in the [business 1] the agent had brought him to but was often not paid for this work. Due to his work and living conditions, he had little time, money or energy to find a church and had very limited English language so found catching public transport daunting. He also feared what might happen to him as he was unsure of his visa status. In early 2019, he became aware that the agent had not applied for a visa for him.
In early 2019, he learned that one of his colleagues was Christian and this man told the applicant about Chinese language churches in [Suburb 1]. In April 2019, the applicant left his employer and attended one of these churches where one of the churchgoers told him about the option of applying for a protection visa. The applicant made a protection visa application. He continued to attend different churches until he started regularly attending [Church 1]. This church appealed to him as the services were in Mandarin and he found the people who went to the church to be kind. They helped him find work and supported him to buy medication when he was sick.
The applicant continues to attend the church on Sundays for services and on Saturday evening for religious classes. He also occasionally hands out pamphlets with other churchgoers to invite people to attend services. He was baptised [in] April 2023. Though he had been told he had been baptised previously, he could not recall his baptism in China and as it had been at home, he wanted to be baptised at a church.
The applicant’s uncle has continued to have problems in China. He has been detained on other occasions since 2017. Since the COVID-19 pandemic, the police had also been monitoring conversations his family had been having and they were aware that he was practising Christianity from monitoring these conversations. The week before the hearing, his uncle had been caught again. His mother had also reacted badly to this and fallen sick and died [number] days before the hearing. His uncle was also in detention but he was unsure of the details of how long for as he had been unable to talk to his family about it.
The Tribunal asked the applicant if he could return to China and pray and read the Bible without attending church meetings. The applicant responded that he could do this but attending meetings was important to him because he could listen to priests and church leaders and he had ‘double strength’ when praying together with others. The applicant explained that if he spoke about Christianity in China he would be detained and re-educated.
The Tribunal asked the applicant if he could attend the TSPM in China. The applicant responded that their teachings were not orthodox and do not follow what is in the Bible but he believes in God and what is in the Bible.
Concerns with the applicant’s evidence
The Tribunal had some concerns with the applicant’s evidence, which it put to the applicant to comment at the hearing.
The Tribunal put to the applicant country information that indicated that people of interest to the authorities in China may be put on Exit Control Lists and that a person on such a list would find it very difficult to leave China. The Tribunal put to the applicant that his ability to leave China suggested that he was not on such a list and may indicate therefore that he was not of interest to the authorities in China. The applicant responded that at the time he had left China, he had received an oral warning but his uncle had taken most of the blame for him and he was considered relatively insignificant. Since he has been in Australia, the police have been monitoring his calls with his family and are aware of his practice in Australia and he has been warned by his family not to return as his safety will be at risk.
The Tribunal also raised the concern that the applicant had not applied for a protection visa until almost 2 years after arriving in Australia and this might indicate he did not fear harm in China as he claimed. The applicant explained that he was unaware of protection visas until early April 2019 as his visa, work and living arrangements had been organised by an agency in China. These working arrangements were exploitative and it was only in early 2019 that he was aware that the agent he had engaged to apply for a student visa for him had not applied for the visa and he started to make enquiries about what he could do.
The Tribunal also put to the applicant that in his application for the protection visa, he stated that he had ‘no religion’. The applicant responded that he was not aware of this. The Tribunal also put to him that in the statement he submitted with his protection visa application, he did not mention fear of harm because of his own religion but only his connection to his uncle. The applicant responded that he might have misunderstood or the statement he prepared might have been mistranslated as he used translation applications to translate it.
The Tribunal also put to the applicant that not attending his interview at the Department, may indicate that he did not have a genuine fear of harm in China. The applicant responded that he did not receive the email from the Department inviting him to the interview. He responded that he had not always received documents sent to that email address, he only became aware of the invitation to the Tribunal hearing when he received SMS reminders from the Tribunal and checked his emails for the hearing invitation.
Consideration of applicant’s evidence
The Tribunal found the applicant’s evidence at the hearing to be frank and credible. While the applicant was confused on several occasions during the hearing, in particular remembering the dates or years events occurred, the Tribunal attributes this to the applicant’s level of education, the time that had passed since the incidents the applicant was trying to recall and the impact of the recent death of his mother on his ability to focus on questions and recall events.
The applicant’s evidence was largely consistent with claims he made in prior statements to the Department and Tribunal, coherent and plausible in the context of available country information regarding the practice of Christianity in China.
The applicant demonstrated a knowledge and understanding of Christianity commensurate with his educational background and claimed involvement with the church. For example, when the Tribunal asked the applicant about some of the stories he had learned from the Bible, he was able to recall several stories without hesitation. The applicant was also able to provide coherent explanations regarding the personal significance of attending church and being baptised.
The applicant provided evidence to support his claims including support letters from the church he attends, photographs of him attending church activities and a copy of his baptism certificate. The Tribunal has considered this evidence and has no concerns about its authenticity. The evidence provided by the applicant corroborates his own evidence.
The Tribunal also found the applicant’s responses to its concerns to be convincing, including how he was able to leave China and his explanation that his uncle was the focus of police attention at the time that he left China whereas he was seen to have a relatively insignificant role in the house church and less likely to be placed on an Exit Control List. The Tribunal also accepts the applicant’s explanations about why he did not apply for a protection visa earlier given his living circumstances at the time, very limited English language ability and unfamiliarity with the visa application process and options available to him. The Tribunal also accepts that there was some incorrect information in his application, including indicating he had ‘no religion’ in his protection visa application form, which was an inadvertent error made by the applicant as he prepared the application unassisted and was reliant on translation applications. The Tribunal accepts also that he was unaware he was invited to an interview with the delegate in relation to his protection visa application and did not attend the interview for this reason.
With regards to the applicant’s claims for protection, the Tribunal accepts that the applicant’s uncle ran a family church in his house in China, where the applicant also lived. The Tribunal is also satisfied that the applicant was raised a Christian, was baptised as a child and attended church meetings in his uncle’s house as a child. The Tribunal accepts that the applicant continued to practise Christianity by praying and reading the Bible even when not attending these meetings. The Tribunal accepts that he resumed attending church meetings frequently when he moved to [Country 1] in 2014 and attended meetings of the family church led by his uncle when he returned to China in 2017. The Tribunal accepts that the applicant’s uncle was detained for leading family church meetings in his home. The Tribunal accepts the applicant was warned by police not to continue to attend these meetings and asked to report to police frequently.
The Tribunal accepts that the applicant has attended church services regularly in Australia and was baptised in 2023. The Tribunal accepts that the applicant would continue to practise Christianity in China if he were free to do so and that practising in the community with others and being able to proselytise are important elements of the practice of his religion. The Tribunal accepts that the applicant does not consider the TSPM to be a true reflection of his religious beliefs.
Consideration of applicant’s claims to be a refugee
Based on the applicant’s evidence and relevant country information, the Tribunal accepts that the applicant would face a real chance of serious harm, including arrest and prolonged or repeated detention, for reasons of his religion in China. As the applicant faces a risk of this harm from the Chinese authorities, the Tribunal finds that the applicant would face a real chance of this harm throughout China and that effective protection is not available to the applicant. The Tribunal finds that the applicant cannot take reasonable steps to avoid facing a real chance of harm as to do so would require him to alter or conceal his religious beliefs in contravention of s 5J(3) of the Act.
Findings on refugee criterion
For the reasons above, the Tribunal is satisfied that the applicant faces a real chance of serious harm on return to China because of his religion. The Tribunal is satisfied the applicant has a well-founded fear of persecution in China. Accordingly, the applicant satisfies s 5H(1).
CONCLUDING PARAGRAPHS
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).
The Tribunal finds that the applicant is not a citizen of any country other than China and has no presently existing right to enter and reside in a third country as considered in s 36(3) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Ben Lumsdaine
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4386

13 September 2024

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Immigration

Statutory Interpretation

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Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

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Statutory Construction