1926444 (Refugee)

1926444 (Refugee) [2022] AATA 798 (11 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926444
COUNTRY OF REFERENCE:                   China
MEMBER:Meena Sripathy
DATE:11 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 February 2022 at 2:06pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – unregistered house church gathering – genuineness of faith – conduct since coming to Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 September 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 23 June 2019. The delegate refused to grant the visa on the basis of accepting for the purposes of their assessment that the applicant was Christian and feared harm on the basis of her religious beliefs but, having regard to the country information, not being satisfied there was a real chance she will be persecuted upon return to China for one or more of the specified reasons in s5J(1) of the Act or that there is a real risk she will face significant harm if returned there.
The applicant appeared before the Tribunal on 4 February 2022 via telephone hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review, however the representative was not present at the hearing.
The issues in this case are whether there is a real chance, if the applicant returns to China, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information in the application form provides that the applicant is a woman, single, born in [year] in Zhejiang Province, China. She indicates her religion as “Christian”. No details of past employment or education is provided. She indicates she ‘stayed at home and was supported by her family’. She arrived in Australia on a visitor visa [in] April 2019, travelling on a valid Chinese passport issued in her name. A residential address in Chaoyang District Beijing is provided.
In response to questions about her claims for protection the following information was provided: I am Christian but my church was an unofficial one, therefore the government used polices monitored and followed the Christian of non-official Church, even they arrested some Priest and tear down the non-official church, I feel really scared about this mistreatment, therefore I applied 866 visa to avoid this mistreatment.
In response to the question as to whether she had experienced harm in her country she stated “Yes” and provided the following detail: The government used polices to monitor and follow me-a Christian of non-official Church, even they arrested some Priest and tear down the non-official churches, i feel really scared about this mistreatment, therefore i applied 866 visa to avoid this mistreatment.
The applicant stated that she never sought help within the country after the harm because the mistreatment towards non official church is national policy and there is no one within China that can give her help. For the same reason she said she cannot move to another part of the country.
In response to what she thinks will happen to her if she returned she stated: The government will use polices to monitor and follow me-a Christian of non-official Church again, I will face being arrested again, i feel really scared about this mistreatment, therefore I applied 866 visa to avoid this mistreatment.
The applicant was invited to attend an interview with the delegate to discuss her claims for protection, but failed to attend, and the delegate proceeded to make a decision on the basis of the information provided in the application.
In his reasons for decision, the delegate indicated that he accepted for the purposes of the assessment that the applicant is a Christian but found that she had no profile that would be of interest to the authorities. The delegate also found there was no information to indicate that she would not be able to continue practising her religious beliefs should she wish to do so by attending one of the state-sanctioned churches in China. Given this the delegate was not satisfied that the applicant would be targeted by the Chinese authorities on the basis of her religion. Nor am he satisfied that she would face a real chance of harm on the basis of these claims.
Evidence before the Tribunal
The applicant appeared before the Tribunal on 4 February 2022 via telephone hearing conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal exercised its discretion to hold the hearing by telephone given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The applicant was invited to participate in a video hearing using the MS Teams platform, but she indicated her preference to participate by telephone due to a recent injury to her back preventing her from traveling to her agent’s office and her lack of familiarity with the technology to participate without assistance. On the day of the hearing the Tribunal confirmed with her whether she was happy to proceed with the hearing by telephone, and specifically if she was able to do so in light of her reported injury. She indicated that she was fine and happy to proceed with the hearing by telephone. The interpreter was present by telephone and all parties confirmed that they could clearly hear each other. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
A summary of evidence provided by the applicant at the hearing follows. She explained that when she arrived in Australia she was recommended an agent to lodge an application for a visa for her. She had no knowledge at the time that this person was unregistered. She provided him her passport and ID document only and no other information. She told the Tribunal she had no knowledge of the details provided by him in the application and was never informed about the invitation for interview. She was unable to provide the Tribunal the name of the agent. The Tribunal asked how she came to know about the decision to lodge the review. She said she did not know about this. She said later when she tried to contact the agent to enquire about the application she couldn’t find him and subsequently engaged her current agent. This was when she came to know that a decision had been made.
The applicant told the Tribunal she has no knowledge of the information provided in the protection visa application.
The applicant provided her current address. She is renting with a friend who she met since coming to Australia. She was working until recently, when she had an accident in the home and hurt her back. Before that she was doing various odd casual jobs including in a fruit factory and chicken house. She has mostly self supported since coming to Australia. She is presently living off her savings. Occasionally her family has sent her money.
The Tribunal asked about her family circumstances. She has parents, a [age] year old recently married daughter and [number] elder [siblings] in China. They all live in Zhejiang Province. She was previously married but divorced in December 2016. She remained living with her husband after they separated for around 3 months prior to their divorce, and after that she returned to live with her parents where she lived until she came to Australia in April 2019. She and her husband owned the property they lived in, but it has since been sold and the proceeds were given to their daughter. Her elder [siblings] lived separately from her parents, with their own families. Her parents are elderly, retired, and in poor health. An aunt presently lives with them and cares for them. The applicant is in regular contact with her family members. Apart from her parents’ ill health, there are no other issues. She occasionally sends money to her parents, the last time was for new year.
The applicant stated that she completed around 9 years of education to junior high school level. After school, she worked in a factory until marriage. She did not work outside the home while she was married and looked after her daughter. Since her divorce, she did casual jobs to support herself. The last job was in a [specified] factory prior to coming to Australia.
Before coming to Australia she had never travelled to any other country. She applied for her passport in person and had no issues with it being issued. She departed China on her own passport and had no issues leaving the country.
The Tribunal asked why she left China in 2019 to come to Australia. She said a few of her church friends told her the police won’t let them gather any longer and she should go to Australia so she did.
The Tribunal asked why she cannot return to China now. Initially the applicant answered that she did not know this application was for this reason and that it was illegally made. When asked again if there was any reason she cannot return she said it was because of the pandemic. She came to know the reasons the application was made after she went to the new agent.
The Tribunal explained that she had made a protection visa application and the issues that it was considering now is whether she meets the definition of refugee or if not, whether she is owed protection under complementary protection, and again asked if there was a reason she was afraid to return. She then said it was because of her religion, Christianity.
The Tribunal asked her when she began to practice Christianity. She said she started [in] May 2016 in China. A few friends used to gather in a family church and asked her to come along. She was staying at home at that time and was bored so she went along. The Tribunal asked if this was the first time she had anything to do with Christianity. She said it was not the first she knew of the religion because her ex mother-in-law used to attend family church gatherings, but it was the first time she started attending such gatherings herself. Prior to that she occasionally attended events at her ex mother in law’s church group. Her parents had no religious beliefs. Her ex husband did not attend any religious gatherings, but his mother did.
The Tribunal asked the applicant to provide more detail about her activities with this group. She said she started attending [in] May 2016 and attended weekly. They gathered in a private home of one person. About 10-12 people attended, sometimes less if people had other things to do. In January 2019 the group was warned to stop gathering and so they stopped and this is when she decided to come to Australia. The Tribunal asked the name of the person whose home they gathered in. She did not know his name. He was elderly and she only knew the family name [Name 1]. He may now have passed away. The address was a [number] minute walk from her mother’s place in her hometown.
The Tribunal asked the applicant to elaborate on the activity in the gatherings. She said they read the bible, did some praying and ‘something like that’. She could not, when asked, provide more detail. When asked if she had a bible, she said her mother-in-law gave her one. When asked to elaborate on her religious beliefs, she said her mother-in-law always told her ‘Jesus would help her’. When asked what she believes in, she said only ‘Christianity is very good’. When asked to elaborate on what exactly in Christianity she believes in, she said she does not know how to describe it, just that she has believed in this religion for a long time. She said that in the group they read some chapters of the bible and the mission of Christianity. When pressed on this, she said the mission of Christianity is that all people have sinned and only Jesus can save us from the sins.
The Tribunal asked the applicant if she, or the group, suffered any harm or had any issues in any of this period she attended the gatherings. She said they did not. It asked what happened in January 2019 that led to the gatherings ceasing. She said nothing happened, just that the police told them to stop because it was an unlawful gathering. They were warned if they do not stop they would be arrested and taken into custody. She did not attend a gathering after that.
Since she has come to Australia she has had no contact with anyone in the group and does not know if anything happened to any of them.
The Tribunal asked if there was a registered church in her area and if she has been there. She said there is no official or registered church in their village the closest one is in the city nearby, but it is too far to go to. This is at Zhoushan, it is a [number] minute bus trip away. It is too far for her and not convenient. The Tribunal asked if, apart from the inconvenience of distance, is there any other reason she cannot attend the registered church. She said in those sorts of churches the priority is to the Party not God. The official church is all about love of country not Jesus. There are restrictions about what one can do there and it is not possible to study the gospel. The Tribunal asked if she had attended such a church, or how she knows this. She said people have told her.
The Tribunal asked the applicant about her religious activities since coming to Australia. It asked her if she has practised her faith and how. She said about 3 months after arrival a friend took her to a Church in [Suburb 1]. She went about 3 times but it was not convenient to get to so she stopped. Then the same friend introduced her to a small family group that met and discussed the bible. They were all from his home village and she did not know the people. She stopped going. More recently she was introduced to a person who introduced her to an online group that meets from time to time. She has met with them a few times, maybe 10 or so already. It is not regular, they meet when people have time and arrange it.
The Tribunal asked the applicant what harm she fears if she returns to China. She said she fears being arrested and taken into custody by police because of her religious beliefs. When asked why she thinks this would happen she said because they were warned previously not to continue their gatherings and this is why they stopped.
The Tribunal explained that it has to be satisfied there is an objective basis for the feared harm and it has considered independent country information about treatment of Christians in China from a range of sources. The Tribunal said it is aware that in recent years, the Chinese government under the leadership of President Xi Jinping has shown less tolerance towards freedom of religious worship than was permitted under his predecessors, and this particularly affects worship outside of state-sanctioned churches. However, information sources indicate that there are many millions of Christians in China, particularly in Zhejiang province, and generally they are able to practice freely if practicing in private, small gatherings and do not pose any threat to the authorities. The Tribunal put to the applicant that, if it accepted her claim to be Christian, then given her evidence about the practice of her faith in China and Australia, it may not be satisfied she faces a real chance of serious harm upon return on the basis of the independent information about who is at risk of harm. In response she said that she fears these things will happen and she does not wish to return. She fears her freedoms will be restricted. The Tribunal put to her that, given her evidence that she was able to apply for a passport in person in 2018 and depart the country without issue in April 2019, she does not appear to be of interest to the authorities in the past and it may find she would not be of interest to them upon return. In response she said that when she applied for her passport she had not done anything wrong and was not a leader of a group.

The Tribunal asked what she would do on return that she believes would bring her to the attention of authorities? She said that they were already warned not to continue meeting. If she returns home and participates in small gatherings she fears they would arrest her.
The Tribunal asked if she knows anyone who has suffered harm on this basis. She said that they heard that in another village people were arrested when they did not stop their gatherings. Her group ceased meeting when they were warned. This is what she is afraid of.
The Tribunal asked if, apart from the religious ground, is there any other reason she fears return. She said there is not. It asked if there was anything else she wanted to say. She said there is not.
The Tribunal asked if she ha provided all the information she wants to provide or does she want any additional time to provide anything else. She said that there is no need for additional time she has said everything.
Independent information
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.
DFAT’s most recent Country Report on China provides the following information regarding religion in general:
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.
Authorities have regulated Christianity to make it more ‘China-orientated’. In respect of Protestants, DFAT’s most recent report states:
3.33 Most Protestants worship in unofficial ‘house’ churches. These ‘underground’ churches may literally be in a house, or can be large gatherings in, for example, commercial office space. During COVID-19, some services moved online, which in some cases increased the size of congregations. In recent years the government has increased efforts to force them to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM. Churches refusing to align with the TSPM have been closed or threatened with closure. DFAT is aware of reports of authorities pressuring house churches by cutting off electricity, forcing landlords to evict members, or using procedural grounds to shut house churches. Larger churches are most likely to receive government attention; the larger the congregation, the greater the chance of such attention. This in practice means that small groups may be able to meet in private for unauthorised religious discussions.
3.34 The situation for Protestants differs from place to place and community to community. DFAT is aware of Protestant communities that have been largely unaffected by increased government oversight and where usual worship activities and practices have continued largely without any interference. The nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.
3.35 DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.
Freedom House, The Battle for China’s Spirit – Religious Revival, Repression and Resistance under Xi Jinping[1], estimates the number of Protestants in China at 58 million. It is noted that Christianity has spread in China at a remarkable level in recent decades, with figures of 3 million Protestants in 1982 to 29 million in 2014 (at registered Churches). The Freedom House Report refers to the intensification of persecution against Christians since 2014, and that higher degrees of suppression persisted throughout 2015 and 2016 – highlighting in particular cross removal and demolition campaigns focussed on church buildings; repression of state sanctioned churches and leaders; imprisonment for membership in ‘heterodox’ religions but also of mainstream Protestant leaders and congregants from underground churches; crackdown on lawyers who assist churches and obstruction of Christmas celebrations.
[1] Freedom House, The Battle for China's Spirit, February 2017, available at: 31 July 2018] , Chapter II, Christianity pp42-64
A recent Immigration and Refugee Board of Canada (IRBC) research response on treatment of members of house churches provides the following information:[2]
Sources report that there are many Christian groups in China, including some with beliefs diverging from the orthodox teachings of Christianity; therefore, it can be difficult to determine whether a group is Christian and different stakeholders, including the State, academics, and concerned religious groups, may have conflicting perspectives (Professor 10 Sept. 2021; Research Fellow 3 Sept. 2021). The UK Home Office reports that the exact number of Christians in China is unknown and estimates "var[y] greatly" (UK Nov. 2019, para. 2.4.1, 3.1.2). The Chinese government's 2018 white paper on religious freedom states that the country has 38 million Protestants and 6 million Catholics (China 4 Apr. 2018, Sec. III). According to AsiaNews, a Christian news source (AsiaNews 3 Dec. 2003), "Protestant groups" estimate that 80 to 90 million people in China are members of "underground [c]hurches," compared to the approximately 20 million who are registered under the officially recognized Three-Self Patriotic Movement (AsiaNews 27 Mar. 2019). According to an article published in Christianity Today [1] by Fenggang Yang, founding editor of the Review of Religion and Chinese Society and head of the Purdue University Center on Religion and Chinese Society, "tens of thousands" of house churches of different sizes exist in China (Christianity Today 31 Dec. 2019).
Sources indicate that Christian groups in China are divided into official, house and underground churches (Professor 10 Sept. 2021; Australia 3 Oct. 2019, para. 3.77). In a telephone interview with the Research Directorate, a professor at a university located in the US, whose research focuses on Protestants in China and who has conducted extensive fieldwork in the country, stated that house churches are "mainstream," hold beliefs and practices similar to official churches, and receive "more lenien[t]" treatment (Professor 10 Sept. 2021). The same source also noted that underground churches are "more extreme" and "secretive" and receive "more hars[h]" treatment (Professor 10 Sept. 2021). A 2019 Australian Department of Foreign Affairs and Trade (DFAT) country information report on China indicates that house churches are Protestant while underground churches are Catholic (Australia 3 Oct. 2019, para. 3.77).
The UK Home Office reports that unregistered religious groups, including "underground house churches," are "illegal and risk having their activities restricted and their places of worship closed down" (UK July 2021, para. 2.4.9). According to the Council on Foreign Relations (CFR), an independent and non-partisan US-based think tank and publisher on international affairs (CFR n.d.), China has "one of the largest populations of religious prisoners" in the world, estimated to number in the "tens of thousands" (CFR 25 Sept. 2020).
[2] Research Directorate, Immigration and Refugee Board of Canada, China: Treatment of members of house churches [also known as jiatang churches; jiatang congregations; family churches; home churches; unregistered churches], including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019–October 2021) CHN200760.E, >
Specifically regarding Protestants, the same report states:
CSW's Asia Team stated that Protestant house churches, which often "do not own physical property, are forcibly disbanded" when authorities "put pressure" on landlords to not provide their spaces for house church services, as was the case for the Guiyang Living Stone Church [in Guizhou province], and this tactic has been "more frequently applied" since 2018 (CSW Asia Team 22 Sept. 2021). Similarly, Australia's DFAT indicates that government authorities are "cutting power and water or restricting rental space" to religious groups to pressure them to comply with religious regulations (Australia 3 Oct. 2019, para. 3.46).
…
According to sources, while Protestant house churches are not officially recognized by the state, many are able to operate as long as they strike "a careful balance: operating outside the CCP's religious framework, while trying to avoid charges that they serve as vectors for Western influence" (Palladium 19 Aug. 2019), or they are "careful, [and] they hide," despite the likelihood that the authorities are aware of their existence, as "they often let them be" if they "keep quiet and keep a low profile" (Research Fellow 3 Sept. 2021). According to the Research Fellow, at the request of the official protestant church in China, the state has interfered in the affairs of a branch of the True Jesus Church in Nanping, Fujian province, whereby the True Jesus Church lost its status as an official Protestant church due to theological differences (Research Fellow 3 Sept. 2021). The same source noted that the True Jesus Church complied with the investigation of a high-level official Protestant church pastor, conducted on behalf of the state, to regain a favourable relationship with the State (Research Fellow 3 Sept. 2021).[3]
[3] ibid
The Tribunal also considered information in a 2019 IRB response addressing the topic of Christian house churches in China, including smaller congregations that meet in people's homes, providing information on their activities and beliefs and treatment of members by authorities.[4]
[4] Research Directorate, Immigration and Refugee Board of Canada, China: Christian House Churches, including smaller congregations that meet in people's homes; activities and beliefs; treatment of members by authorities, including in Guangdong, Fujian, and Hebei Provinces (2017-October 2019) CHN106374.E AND REASONS
Nationality
On the basis of her Chinese passport, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However it is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
At the outset, the Tribunal notes the applicant’s acknowledgement before the Tribunal that she had no knowledge of the information provided in the application form lodged on her behalf. She gave evidence that she gave only her passport and ID document to an agent recommended to her when she arrived in Australia and no other information and has no knowledge of the details provided in the forms submitted.
Given this admission, the Tribunal has not considered the claims set out in the application as being made by the applicant. It took evidence from her at the hearing as set out above and assesses her claims on the basis of this evidence only.
The applicant claimed to fear harm in China because of her Christian faith and practice. She claims she ‘is Christian’ and her evidence was that she began attending family church gatherings from 8 May 2016 until January 2019. She has not claimed any past harm on the basis of her religion, religious views or practice. She said the family gathering group were warned in January 2019 to stop meeting and after that they did not meet again. She claims she left China and came to Australia following this because her fellow church friends suggested for her to do that. She fears she will be arrested and taken into custody if she returns to China and attempts to participate again in a family church gathering.
Claims regarding her Christian faith and practice
For the following reasons the Tribunal does not accept that the applicant is a genuine Christian or that she attended family church gatherings as claimed from 8 May 2016 until January 2019 or that this gathering was ordered, by authorities to cease meeting.
In her evidence at hearing she was unable to articulate in any convincing detail what she meant by her ‘Christian’ faith and what it meant to her. The Tribunal notes that she did not immediately mention the issue of her religion until pressed by the Tribunal as to her reasons for making the application. She had earlier told the Tribunal that she had no idea of the content of the application and only came to know about it when she engaged the new agent. The Tribunal asked in various ways for her to elaborate on what her religious beliefs were to which she provided brief responses only and no detail. She gave evidence that she started attending a small family church gathering group from a specific date, 8 May 2016, at the suggestion of a friend because she was ‘bored’ and regularly attended this group from this date until January 2019. The Tribunal finds her evidence of how she came to join and practice her faith, what her faith practice is, and where and with whom she practiced was vague, evasive and lacking in convincing detail. For example her evidence that she started attending an unregistered house church gathering out of ‘boredom’; that she can specifically call the date from which she attended ([date] May 2016) yet does not know the name nor can recall the address of the group’s host was not, for the Tribunal, believable or plausible. She was unable to articulate in any convincing way any tenets of her personal Christian faith which the Tribunal considers is inconsistent with her claim to have attended weekly small gatherings for bible discussion over almost 3 years. She claimed that she left China and came to Australia when the local authorities ordered her gathering to stop meeting because she was unable to continue to practice her faith. In her evidence she offered no explanation or reason for the authorities’ attention to their gathering in January 2019, having not come to any official attention at any time prior.
The Tribunal considered independent information about the situation for Christians in China as set out above. On the basis of this information it is accepts that Christianity in China has been subjected to increasing regulation and controls in recent years particularly under the leadership of Xi Jinping, and that significant pressure is placed on church leaders particularly, to submit to the authority of State controlled ‘official’ or registered churches. While country information indicates the situation differs from place to place and community to community, and there are sources that suggest smaller house churches are mostly unaffected by increased government oversight and usual worship activities and practices have been able to continue largely without any interference. DFAT’s report indicates the nature of Protestant Christianity is that smaller churches not linked to any central hierarchy or authority are harder to control by either the state or the religious authority but conversely are also less likely to be seen as a threat to the state and thus less likely to be targeted.
In the context of the available independent information, the Tribunal did not find credible the applicant’s claim about the authorities ordering their house gathering to cease in January 2019. As with her sparse and unconvincing evidence about her faith, the Tribunal finds her claim that the authorities took a sudden interest in her congregation in January 2019 lacked any convincing or credible detail. The applicant made no claims or provided any evidence to indicate the congregation was tied or involved with any foreign organisation, or otherwise connected to any sensitive political or security issues and therefore on the available evidence there is no reason for it to have come to the attention or be under scrutiny of the authorities.
Therefore the Tribunal does not accept, on the limited evidence provided by the applicant, that she is a genuine Christian of any faith, or that she participated in a family church gathering in China that was ordered by the authorities to cease meeting.
The Tribunal also finds the applicant’s conduct since coming to Australia is not consistent with her claim to have fled China because of her Christian faith and inability to practice her faith there. She told the Tribunal that since her arrival in Australia in April 2019 she attended a church in [Suburb 1] on 3 occasions, then started attending a small family gathering group for a period but stopped because it was inconvenient to get to, and has now been involved on about 10 occasions in an online group that discusses the Bible. She was unable to give any convincing detail of the progression of her faith practice since coming to Australia. She provided no details of who she practices her faith with or what her practice entails. There is n independent evidence from any source about her claimed practice in Australia. On the limited evidence before it, the Tribunal does not accept that she has been, or is, practising any Christian faith in Australia in any manner or that she has any genuine ongoing commitment to a Christian religious practice here or upon return to China.

Therefore, the Tribunal is not satisfied the applicant is a genuine Christian of any particular denomination and does not accept that she will seek to attend church of any kind upon return to China in the reasonably foreseeable future.
Having regard to these findings, the Tribunal is not satisfied that she would face serious harm for reasons of religion, or any reason upon return to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Having regard to the findings made above rejecting the applicant’s claims to be a Christian who seeks to practice in a family church, and finding that she will not seek to practice Christianity in any form that exposes her to danger, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to China. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2022] AATA 798

11 February 2022

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