1931773 (Refugee)

1931773 (Refugee) [2023] AATA 4815 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Amy Lee (MARN: 0215803)
CASE NUMBER:  1931773
COUNTRY OF REFERENCE:                   China
MEMBER:Jason Cabarrús
DATE:13 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 December 2023 at 1:15pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christianity – church attendance when child and for social reasons in third country – attendance at government-approved church – assisted church friend selling religious books – friend and other church members fined and imprisoned, and applicant living in hiding – judgement does not mention applicant – inconsistent claims and evidence – delay in obtaining visa and departing, and departure without difficulty – baptism and low-level attendance and activities in Australia – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 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 the People’s Republic of China (‘China’), applied for the visa on 26 April 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she meets the complementary protection criterion. These criteria broadly require that a person face a real chance of serious harm for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born in [year] in Liaoyang city region, Liaoning province, China. She lived there with her mother and father and completed her primary and secondary schooling there. In 2003 she left to pursue further studies in [Country 1], returning to live in China in 2011.
She arrived in Australia on a tourist visa in February 2019 and lodged her protection visa application in April 2019. She gave the Department of Home Affairs (‘the Department’):
a.a copy of her passport, issued in 2011 and valid to 2021;
b.a signed statement outlining her claims, dated 24 April 2019 (translated into English) (‘her statement’);
c.a document bearing a title indicating it to be a judgment of the People’s Court of [District 1] of Liaoyang, dated [in] February 2017 (also translated into English) (‘the judgment document’).
She attended an interview with the delegate in September 2019, and the delegate refused to grant the visa in October 2019.
She applied to the Tribunal for review of that decision. She gave the Tribunal:
a.a copy of the delegate’s decision;
b.a further statement dated 7 November 2023 (in English) (‘her further statement’);
c.a baptism certificate and photos from a baptism ceremony, dated [in] December 2020.
The applicant appeared before the Tribunal on 14 November 2023 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 and her representative also attended the hearing.
The hearing went for longer than expected and the representative indicated that she needed to leave for another appointment. I asked the applicant if she wanted to adjourn to a later day so that her representative could be present for the whole hearing, or if she would like to continue without her representative. The applicant chose to continue without her representative. I offered to provide additional time for written submissions after the hearing and the representative then left. On 23 November 2023, the representative wrote to the Tribunal to advise that the applicant had no further submissions to make and no further documents to provide.
In making this decision, I have considered all documents on the Department file and the Tribunal file, including those referred to above, as well as the applicant’s evidence given at the Tribunal hearing. In accordance with Ministerial Direction No.84 made under s 499 of the Act, I have also taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant.
Country of reference
Based on the information in her application, including her Chinese passport, and the evidence she gave at the Tribunal hearing which was consistent with her being a Chinese national, I find that the applicant is a national of China.
Summary of claims
The claims made by the applicant can be broadly summarised as follows, having regard to the contents of the documents she provided and what she told the delegate and me:
a.She is a Christian and she fears being persecuted by the government, including being arrested, sentenced, fined, and put into jail on unwarranted charges; and that as a result she would lose her mind, as prisoners are tortured and abused, particularly subject to mental torture, and this has happened to fellow church members.
b.The main reason she fears being jailed is because of her involvement in religious bookselling activities in China, for which fellow church members were imprisoned and fined; and as a result of which she was pursued by the authorities and had to go into hiding.
c.Due to these activities, she would be isolated by other church members and would not be able to attend church in China because churches are connected to each other and people at other churches would not want to associate with her because they wouldn’t want to get into trouble.
d.The government is controlling and punishing churches, and closing down some that were previously recognised; the Bible is not allowed to be sold on the market and police entrap people trying to purchase Bibles online; all religions must abide by regulations, which apply even to the Bible, and you can’t buy an authentic copy of the Bible even if you go to a church.
e.She was also involved in public proselytising activities, particularly handing out religious pamphlets in China, and had encounters with the authorities during these activities.
I set out my findings in relation to these claims below.
Applicant’s practice of Christianity
The applicant gave evidence to the Department and to me that she was introduced to Christianity as a child by a distant relative whom she called ‘grandma’ who looked after her and would take her to church. She has pleasant memories of this kind and loving woman and her times visiting church as a child, where she enjoyed the atmosphere. She stopped going to church when she was in high school because she was focused on her studies and the woman became too old to look after her. The accounts the applicant gave to the Department and to me about this were broadly consistent and I accept these claims regarding the applicant’s initial exposure to Christianity.
Later, when she was abroad in [Country 1] (2003-2011), she attended church to ease her homesickness and find company. On return to China she obtained a Chinese Bible and began to identify as a Christian. She initially told the delegate she realised she was Christian in [Country 1] at age 22 (which would be around [year]), but told me that on reflection and after attending church some more in Australia, she feels that she really became a Christian after starting to read the Bible, which happened after she returned to China. I accept that the applicant’s evidence to me that her church participation in [Country 1] was more about the atmosphere and getting to know people, rather than the practice of faith, and that she obtained a Chinese Bible and began to identify as Christian around 2011, after she returned to China.
On returning to China, the applicant claims to have attended a government approved church in [Village 1], from 2011 to 2016. In her application to the Department and throughout her interview with the delegate, she referred to this as a ‘church’, but in her evidence to me, she said it wasn’t really a church building but rather a ‘gathering place’, just a renovated house with platforms and chairs.
She also claims to have attended church in Australia from around March 2019 to present, primarily at the [Church 1], but also for 4 months at a church in [Suburb 1], though the sermons there were in English and she didn’t understand it all.
Both in China and Australia, the applicant claims she attended church on a weekly basis, and that she also assisted in administrative help for the church community, e.g. she told me that in China she helped with delivering magazines, lighting, managing the donation box, cleaning the church facility, helping older churchgoers with their difficulties and cleaning their homes, and helping out at the church convenience store; and in Australia, she told the delegate that she helped out once with a group distributing food to homeless people.
She also told me she participates in a private online prayer group on a weekly basis with a couple of parishioners from the [Church 1], which is not an official group as the official ones are very large. She also told me that she would also urge friends and co-workers she meets to follow Christianity so they can follow the Lord and go to heaven, and this is what she meant by ‘spreading the message of Christianity’ in her further statement.
She also gave me the following account of her intentions to participate in a proselytising/ evangelising group at the [Church 1]: she wanted to register with an evangelising group but then the COVID-19 pandemic hit; when she tried to register, the group was full; the group goes out on the street but only 1-2 weeks every year, depending on the priest’s schedule; the number of people was limited to 30 because otherwise the street gets too crowded; her friend said she could register now but the date isn’t confirmed, and lots of others want to participate so she’s not sure if she’ll be able to; they select people to do proselytising work after being baptised, and after joining the group they’d give her training on how to publicly preach or communicate with people.
The delegate considered the applicant provided general and vague information about Christianity but was unable to describe what her faith meant to her on a personal level, and that her responses lacked the spontaneous level of detail that would be expected of a person who had attended church for as long as she claimed. The delegate did not accept that the applicant was a genuine and committed Christian, but accepted that the applicant attended a state-sanctioned church in [Village 1] infrequently between 2011 and 2016 as a low-level participant. The delegate also accepted that the applicant had a low-level interest in Christianity and had attended churches on an irregular basis since arriving in Australia, but did not accept that she was a practising or genuine and committed Christian in Australia, because she was unable to explain how she practised her faith beyond attending church on Sunday, and because of the delegate’s concerns about her attending the English language church in [Suburb 1] around that time.
The applicant gave the Tribunal a certificate and photos of her baptism in 2020 at the [Church 1], which took place after the delegate’s interview and decision.
When I asked her about why her faith was important to her, she told me that:
a.it was because she’d inherited it from the old lady who cared for her, who was a kind, loving, caring, optimistic and outgoing person;
b.after she grew up and came to know more about churches, she realised that she felt happy, relaxed and free in this environment;
c.as she learned more about the Bible and the Lord, she realised the Lord had passed these ideas on and that only by following Him can we obtain a happy and free life; and
d.she wants this life because she doesn’t want to be chained or treated unfairly by others, she just wants to work with a happy mind and relaxed attitude, unlike others who work to make a fortune.
When I asked her when she last attended church and what the sermon was about, she said she attended last Sunday, and the sermon was about redemption, likening people to the branches of a grapevine with God as the root, and talking about how we should follow God to make better fruit.
When I asked her if she reads the Bible, she said she does so around 4-5 days per week, but only reads a little bit at a time and can’t read a whole chapter as she needs many things to be explained by the priest. When I asked her to tell me about a Bible story that was significant to her, and why, she initially did not respond. I then asked her if she could tell me about a Bible story she read recently. She said that apart from the grapevine story she had mentioned, she was most impressed by how the Lord cured patients with leprosy, cured the blind and expelled ghosts and drove them off a cliff; these are the evil thoughts within people and only by the words of God can we become better. When I asked if she knew which chapter or part of the Bible those stories were in, she said she doesn’t remember the chapters but remembers the stories vividly, because there’s a lot of evil in people’s mind and only God can help us eliminate it and escape hell.
Findings regarding the applicant’s practice of Christianity
As noted above, I accept the applicant attended church while she was young with a kind ‘grandma’ figure, and that she has fond memories of this figure and positive associations with Christianity due to this figure. I also accept that the applicant occasionally attended a church in Ireland to ease her homesickness, but this was before she became a Christian.
I also accept that the applicant attended a government-approved place of worship in [Village 1] on return to China as she claimed. I asked the applicant about why she told me it was called a ‘gathering place’ rather than a church. She replied that they call it [Village 1] church among themselves, but it’s just a way of calling it, it’s not an official church with a church style building, it’s just a gathering point. I find that this place of worship was a church, rather than a ‘gathering place’, as this is how the applicant referred to it in her statement and when talking to the delegate, and she did not provide a reasonable explanation as to why she sought to refer to it using different terminology in the Tribunal hearing. I also accept her evidence that she helped out with the church community as she claimed. But as explained below, I do not accept that she attended church as frequently as she claimed.
I accept that the applicant was baptised while in Australia, and that this shows that she has some commitment to Christianity. However, I find that her account of her practice of Christian beliefs and what she had learned from church and the Bible did not demonstrate the degree of depth, detail or personal engagement that I consider it is reasonable to expect if her claims to have been reading the Bible since 2011 and attending mass on a weekly basis for around 5 years in China (2011 to 2016) and over 4 years in Australia (2019 to 2023) were true. Her description of the sermon she claimed to have heard at recent Sunday mass (2 days before the hearing) was superficial, as was her reference to Bible stories, which referred back to this same recent sermon and did not clearly articulate the personal importance of the stories for her. I therefore conclude that she has exaggerated her level of attending church, reading the Bible and attending prayer groups. Her own account to me of only reading small parts of the Bible at a time and needing the priest to explain it is consistent with having only a superficial engagement with Christianity.
Therefore, while I accept that the applicant is a Christian (and has been one since around 2011), in light of the above findings, I find that she has only a modest interest in and commitment to Christianity, that she has only occasionally attended church in China and Australia. I similarly find that she has occasionally attended an intimate private online prayer group, because she is not interested in participating in larger prayer groups (despite larger groups being available at her church) and that she occasionally reads parts of the Bible.
I accept the applicant’s evidence that she has not proselytised in Australia, however, I do not accept it is for the reasons she claimed (in particular, restrictions on the number of people allowed to join the proselytising group, the COVID-19 pandemic, and needing to be baptised and trained first). The applicant was baptised around 3 years ago and COVID-19 restrictions in NSW were lifted around 2 years ago. While I consider the applicant’s description of the cap on participants and infrequent activities of the [Church 1]’s evangelising group is somewhat strange, even accepting that the group operates that way, I consider that if the applicant was genuinely interested in proselytising, she would have found other ways to pursue this activity during the past 2 years, e.g. on her own, informally with fellow churchgoers, or through another church or group. I find that the reason she has not proselytised in Australia is that she has only a modest interest in and commitment to Christianity, and is not interested in proselytising.
In light of my finding that the applicant’s commitment to Christianity is only modest, I do not accept that she has actively encouraged people to follow or convert to it. However, I accept that she has spoken favourably of Christianity to friends and co-workers in private discussions, sharing her own positive perceptions of the religion with them.
In summary, and relevant to her claims about her risks of future harm if returned to China, I find that the applicant:
a.has a modest interest in and commitment to Christianity;
b.attended a state-approved church in China on an occasional basis from 2011 to 2016;
c.has been baptised in Australia and has attended church in Australia on an occasional basis from 2019 to 2023;
d.occasionally reads parts of the Bible and prays in private settings;
e.has said positive things about Christianity in private conversations with friends and colleagues; and
f.has not undertaken any public proselytising or evangelising activities in Australia due to a lack of interest in doing so.
Proselytising/distributing religious materials to the public in China
The applicant told the delegate that when she was in China: on a weekly basis, she and other church members distributed brochures to the public to tell them about the benefits of Christianity, encourage church attendance and spread positive energy; every time they did this, police attended and told them they’d be arrested and detained if they continued; although they were threatened by police, she was never arrested or detained; these altercations occurred 5 or 6 times. When the delegate asked why the applicant did not include this information in her statement of claims, the applicant responded that she mentioned that police did not allow churchgoers to distribute religious material.

The delegate concluded that because these claims were not mentioned in the applicant’s visa application, and the applicant would have mentioned them there if they had occurred, the applicant had fabricated the information at interview to strengthen her claims. The delegate found that while the applicant may have distributed brochures on an ad hoc basis, she did not do this on a weekly basis as claimed, and that the police did not attend or threaten arrest.
The applicant told me that: she’d go with fellow church members into neighbouring villages and markets, in groups of 2-6 people, to distribute flyers and introduce people to the church; she’d do this 4-5 months a year, 1-2 times per week, stopping during winter or when the weather wasn’t good; on one occasion she was taken away by police who pushed her and her fellow church members to the outside of the market, told her it was illegal and gave her a warning; on that occasion the police didn’t ask for details of the church, they just took participants’ names; she continued after this happened because she wanted everybody to know about the Lord and how he can lead people to life, heaven, joy and freedom; on a second occasion she was in a group of 6 people, the others were older church members in their 50s and 60s from rural areas; on this occasion police took them into a van, where 3 police officers pointed their clubs at them and said if they didn’t tell the police everything they’d be taken away; the applicant was the one answering questions and when asked who their leader is and what church they were from, she said they didn’t have a leader or church, they were just there by themselves; the police took down their names, ages and addresses; she can’t recall how long they were in the van because she was nervous, but after she begged with police for a long time and gave them RMB500, they were released.
I put to the applicant and asked her to respond to my concern that I might find that these events had not occurred, based on the fact that she had not included these details in her statement with her visa application, and that there had been significant changes in her account to the delegate and her account to me, including the number of interactions with the police (5 or 6 times vs 2 times) and the significant additional details about the incident in the van and the RMB500 bribe paid. She replied that although she remembers it happening 5 or 6 times, these 2 times give her the deepest impressions; the other times didn’t involve serious contact because there were large crowds in the shopping centres and the police just told them to leave, and because the applicant was experienced she’d take other people away. She also said that although she gave the police the RMB500 bribe to be released, the others with her were all older people; and she couldn’t provide any physical evidence because they weren’t allowed to record or take pictures.
These responses do not provide a reasonable explanation for the inconsistencies between her account to the delegate and her account to me, or for why she did not provide the significant information about these encounters (particularly concerning the claimed incident involving the van and the RMB500 bribe) at an earlier time – either in her written application or to the delegate at interview. I therefore find the applicant has not given truthful evidence about these claimed events, and I do not accept that the claimed events occurred. I do not accept that the applicant ever participated in public proselytising activities or handed out religious materials in public in China, or had any encounters with the authorities in China connected with such activities.
As a result, I conclude that if the applicant returns to China, she would not face any kind of harm or adverse attention from the authorities as a result of these claimed activities.
Ordering/selling/promoting religious materials in China
The applicant’s main claims in her application related to her involvement in activities around ordering/selling/promoting religious materials in China. Broadly, the applicant claimed to the Department and to the Tribunal that:
a.she was involved (from about 2011 to 2016) in assisting a friend named [Ms A] in ordering and selling religious books, including organising and receiving orders, providing bank account details to customers, packing and posting books, delivering books to other locations, selling books to customers in the church convenience store, and related accounting and bookkeeping; and that she personally recommended the books to people she met through her work, who then purchased these books (‘the claimed bookselling activities’);
b.[Ms A] and other members of her church were arrested for their involvement in the claimed bookselling activities;
c.the authorities then started to seek out the applicant for questioning, including approaching her parents, as a result of which she had to go into hiding (around the middle of 2016);
d.the authorities continued to approach her parents during this time and also approached her boyfriend after she left China;
e.[Ms A] and the other church members were fined and imprisoned, as evidenced in the judgment document, and suffered harm, particularly mental harm, arising from their imprisonment and subsequent monitoring by the authorities.
The applicant’s main claims were that she fled China due to these events, and that she feared suffering the same fate as [Ms A] and the other church members, including being imprisoned and suffering mental torture or psychological damage as a result of imprisonment and mistreatment by the authorities.
While I accept that a person named [Ms A] and other members of a Christian organisation in [Village 1] were fined and imprisoned, I do not accept that the applicant was involved in the claimed bookselling activities, or associated with [Ms A] or the others named in the judgment document, or suffered any adverse attention from the authorities as a result for the following reasons, as explained in more detail below:
a.The judgment document is very comprehensive but does not refer to the applicant;
b.The applicant’s account of being sought by authorities and going into hiding had a number of inconsistencies, earlier versions of the account did not include significant details, and the account was inconsistent with country information about police capabilities and investigations in China;
c.There were delays in the applicant applying for a visa and then in departing from China once she obtained the visa; and
d.The applicant was able to depart China without any difficulties at the airport.
The judgment document
As noted above, the applicant provided a document, translated into English, described as a judgment of the People’s Court of [District 1] of Liaoyang, dated [in] February 2017. The document (in English and Chinese) runs to some 16 or 17 pages in length, and details evidence and findings of the court relating to activities of the [Village 1] Christian Gathering Club and several of its members, concerning a business of purchasing and selling prohibited religious books for sale at a profit. The court found that the crime involved the sale of 105,607 books with a value of RMB491,293.
The document is detailed and comprehensive, setting out: names and personal details of the accused; the allegations and submissions made by the prosecution; submissions, statements and admissions by the defendants; the evidence of many witnesses (see pages 10-13 of the English translation); the court’s ultimate findings; and the fines and sentences imposed on the defendants. I accept that it is a copy of a genuine judgment of the court.
When I asked the applicant why she is not named in the judgment document, despite her claimed involvement in these activities, she said that the decision is only about the 5 defendants whose names are listed, and not other people who weren’t arrested; her name would be in recordings or statements at the police station but not in this court decision letter. I do not accept her explanation, as the judgment document refers to the testimony of many different witness and other individuals who were involved, and if the applicant had been involved, it is reasonable to expect that her name would appear in it.
Accounts of being sought by authorities and going into hiding
Broadly, the applicant claimed that around the time that the other members of her church were arrested in the middle of 2016, police came to her parents’ home to search it and look for the applicant, but the applicant was not there as she had already moved to Shenyang for work. Following this she claimed she went into hiding, and remained in hiding until she left China in early 2019 (almost 3 years).
However, key details of these claims changed on different occasions she made them. For example, in her statement, she said she occasionally drove back to visit her parents at their home during this time, and she also told the delegate that each time she visited them (including to organise her things before leaving), she only stayed 1 or 2 hours; but she told me that she only tried to visit them once during spring festival, and didn’t go inside and only saw them through the window on that occasion. In her statement she only referred to the police visiting her parents once; she told the delegate that police visited her parents every 1-2 months; but she told me that the police visited her parents every 2 days. In her application, she said it was a friend who told her to go into hiding, but she told me it was her mother that called her (adding extra details about her mother having to use somebody else’s phone).
The applicant also added considerable extra detail about leaving Shenyang as soon as she got that call and driving 4 hours to Huludao to stay in a motel, staying there for around 1.5 months, changing to different motels during that time, and subsequently staying in many different places for 1 month or up to 2-3 months. I consider it is reasonable to expect she would have included these details in her application or told the delegate at the interview if these events had happened.
When I put to the applicant that I might not accept that these events occurred due to significant changes or inconsistencies in the different versions of her account, she responded that she was able to leave China without trouble because she wasn’t on a wanted list and authorities were more relaxed at the airport during spring festival, and the authorities asked her parents where she was, but she doesn’t have any physical evidence of these things. However, she did not provide a reasonable explanation for the significant differences in her accounts, which concern a significant part of her claims, involving hiding from authorities in China for almost 3 years.
I also put to the applicant that the authorities’ inability to find her (either to arrest her along with [Ms A] and the others, or during the time she claimed to be in hiding) appeared to be inconsistent with country information indicating that China has a responsive and well-resourced police force with access to enormous amounts of data, and police investigate thoroughly and prosecute alleged criminals.[1] She responded that when she fled China the systems weren’t as comprehensive as they are now, nowadays they have an ID card through which they know everything about you but during that time she didn’t use her ID card, she used her driver’s licence, and in northeast China people have similar accents so they don’t stop people in cars; she also told me that she used other people’s phones to call her parents during this time, and told the delegate that she did not drive her own car during this time. However, in light of the country information, I do not accept that her responses provide a reasonable explanation of how she was able to evade the authorities in China for such a long period as she claimed, particularly in light of her own accounts that they were frequently going to her parents’ house to look for her.
Delays in obtaining a visa and leaving China
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 22 December 2021 (‘DFAT 2021’) at 5.3, 5.5; Department of Foreign Affairs and Trade, DFAT Country Report People’s Republic of China, 3 March 2015 (‘DFAT 2015’) at 5.5.
In her statement, the applicant said that she applied for a visa to escape, and didn’t leave rashly after getting it in 2018, and a friend later told her there’d be less police during the spring festival so she left in February 2019.
The applicant told the delegate that: she applied for the visa a year after the others were sentenced because she thought after that the authorities wouldn’t come looking for her anymore, so she was stressed and had to keep changing places and thought she needed to leave, and because they went to her house so frequently it caused her stress and psychological torture; she waited 7 months after the visa grant to depart because she was worried she’d have trouble with police, and her friend told her the police would be more relaxed after Chinese New Year; another reason for the delay in leaving was she needed to organise her stuff, so she visited her parents’ house but didn’t stay long.
The applicant told me that: she applied for her visa to leave China around 2018, the reason she didn’t apply earlier was because she thought it might be forgotten with time passing by; it took her time to find an agent to help her apply for the visa; she wanted to leave after she got the visa but her friend (who works in a detention centre which is part of the public security system) told her that a better time to leave would be around lunar new year because border staff would be more relaxed and checking may not be as strict.
I put to the applicant that the delay in her applying for a visa to come to Australia (around 2 years after she went into hiding) and the delay in leaving China after she got the visa (a further 6 months), might lead me to doubt whether she was of interest to the authorities during this time. She reiterated her previous claim that her friend told her it would be easier for her to leave around spring festival as authorities wouldn’t be checking as strictly, and also said the authorities were looking for her and asked her parents where she was. However, I do not accept these explanations, and I consider it is reasonable to expect that if the interest in her was as intense as she claimed (with regular visits to her family home to look for her), she would have made efforts to depart China more quickly than she did. I similarly do not accept her explanations that she thought the authorities wouldn’t come looking for her anymore a year after the others were sentenced, or that it might be forgotten with time passing by, because those explanations are internally inconsistent with her own claims that the authorities were continuously seeking her out during this time. I conclude the delay in applying for the visa and in departing China after the visa was granted are further indications that she was not involved in the claimed bookselling activities and was not of interest to authorities at the time she left.
No difficulty exiting China
She told the delegate she had no issues at the airport when departing because her name is spelled together on her passport, and she similarly told me she had no difficulties departing China at the airport because the name on her passport is different from the name she was born with – it appears as surname ‘[Two syllables]’ with no given name, rather than surname ‘[First syllable]’ and given name ‘[Second syllable]’, but using the same characters for her name. She also told me that she didn’t have any trouble departing because she departed after midnight.
I put to her country information that exit from China is strictly controlled, that laws prevent criminal suspects and defendants from being given passports or exiting, that details are recorded in an exit control list/database available to border control authorities, and that facial recognition and artificial intelligence are used to check identities.[2] She responded that systems weren’t as comprehensive when she left, and also that she holds an older passport that doesn’t include chips and facial recognition like the newer ones. While I accept that there have been considerable advances in technology in recent years, country information from 2015 and 2017 shows that the systems for checking passengers exiting China was already comprehensive at those times.[3] If she was a suspect in a criminal case, it is reasonable to expect that she would have been on an exit control list which would have prevented her from leaving China without difficulties.
[2] DFAT 2021 at 5.40, 5.32-5.33; Song, L (2022) ‘Exit regulation in the People’s Republic of China: Law, policy and practice’, International Migration, 00, 1-15, available from ‘China: Whether authorities seize the passports, identity documents, or travel documents of persons who are the subject of a criminal summons, a police investigation, or criminal charges (2021–October 2023)’, Research Directorate, Immigration and Refugee Board of Canada, 06 October 2023, 20231030124306, available from See e.g. DFAT 2015 at 5.16, Department of Foreign Affairs and Trade, DFAT Country Information Report People’s Republic of China, 21 December 2017 at 5.20.

I also do not accept her explanations that the reason she was not identified by authorities is that her name is spelled together on her passport. It is reasonable to expect that the authorities’ lists and means of checking identities would have picked this up if the applicant was of interest to authorities. Nor do I accept her explanation that it was because she departed after midnight, because it is reasonable to expect that the authorities would be vigilant at all times, including after midnight. I conclude the fact that she was able to depart China without trouble is a further indication that she was not involved in the claimed bookselling activities and was not of interest to authorities at the time she left.

Overall findings

For the reasons given above, I find that the applicant has not given truthful evidence in relation to her involvement in the claimed bookselling activities or in relation to the authorities seeking her out. I do not accept her claims in this regard, and I find that the applicant was not involved in the claimed bookselling activities, and did not come to the adverse interest of authorities in connection with such activities.

In particular, I find that:

a.the applicant did not assist [Ms A] (or any other persons referred to in the judgment document) with the ordering, sale, or distribution of religious books, or with any related administrative or accounting matters;
b.the applicant did not discuss religion or religious books with people she met through her work in China, or make recommendations about religious books to such people, or take orders for religious books from such people;
c.the authorities in China did not conduct a search of the applicant’s parents’ home, or search for the applicant or approach the applicant’s parents or her boyfriend at any time in relation to these claimed activities or for any other reasons, and the applicant did not go into hiding as a result of these claimed activities or for any other reason.

I therefore conclude that if she returns to China, the applicant would not face any harm or adverse interest from authorities relating to these claimed activities, nor would she be subject to any harm or social ostracism from other churchgoers relating to these activities.

There were also several other inconsistencies and other improbable aspects to her account, for example, details of when and how she allegedly met [Ms A] and how [Ms A]’s parents changed her birth date for official purposes, the applicant speaking with work clients about the very personal matter of their religious beliefs, and the taking of verbal orders for large quantities of books and providing books in advance of payment to build trust. However, on the basis of the matters above I have found that she was not involved in the claimed bookselling activities or associated with [Ms A] and the others, so I do not need to explore these other concerns further.

Practice of Christianity on return to China

As outlined above, I accept that the applicant is a Christian with a modest interest in and commitment to Christianity, that she occasionally attended a state-approved church in China from 2011 to 2016, that she has been baptised in Australia and has occasionally attended church here from 2019 to 2023, that she occasionally reads parts of the Bible and prays in private settings, and that she has said positive things about Christianity in private conversations with friends and colleagues. However, I have found that the applicant has not undertaken any public proselytising or evangelising activities in Australia due to a lack of interest in doing so, and that the applicant did not participate in any public proselytising activities in China.
When I put to the applicant that I might find that because she had not been proselytising in Australia, she similarly might not on return to China, she said that she definitely would, and referred to her claimed intentions to join the evangelical group at the [Church 1]. However, on the basis of my findings above that she did not previously proselytise in China, and has not proselytised in Australia because she is not interested in proselytising, I find that she would not proselytise in China now or in the reasonably foreseeable future, because she is not interested in proselytising.
In light of my findings about her practice of Christianity above, I find that on return to China, the applicant would continue to practise her Christianity by occasionally attending a government-approved church, and might also occasionally participate in small/intimate private prayer groups as she has done here, as well as occasionally reading the Bible.
I put to the applicant that country information indicates that Catholicism and Protestantism are two of 5 religions officially recognised by the state, and people are permitted to worship in officially sanctioned churches.[4] I also put to the applicant that although printing and distribution of Bibles is controlled by the state and Bibles are increasingly hard to get, they are still available in China.[5] I asked her why she couldn’t return to China to practise in an official state-sanctioned church.
[4] DFAT 2021 at 3.22 to 3.27; Department of Home Affairs, Country of Origin Information Services Section, ‘Situation Update: Christians in China’, 27 October 2023, p.1-6; Department of Home Affairs, Country of Origin Information Services Section, ‘Common Claims: People’s Republic of China’, 14 April 2023 (‘DHA April 2023’), pp.10-11.
[5] DFAT 2021 at 3.29-3.30; United States Department of State, ‘2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)’ pp.13-14, 37; Pitmann J, ‘Where to Get a Bible in China’, 19 June 2020, available at >
She responded that: Christianity is recognised but its practice is not as free as in Europe or Australia, all churches are subject to the supervision of the religion bureau and it’s all subject to supervision, regulation, limits and control; you can get the Bible in China, but the priest needs to apply for it and government authorities will check and supervise what versions of the Bible are available and printed. I asked her if she could explain what sorts of limits or controls apply, and she gave an example that publicly spreading Christian songs or the words of Jesus are not allowed, as these are considered to be spreading bad information; and she also said that you can’t gather together in prayer groups because you have to gather in official churches.
While I accept that proselytising is restricted in China as the applicant has identified,[6] I have also found that the applicant will not proselytise on return to China because she is not interested in proselytising. And while country information indicates that larger unofficial gatherings might come to attention of the authorities,[7] I do not accept that a small private prayer group of the kind the applicant would attend (as this is the kind of prayer group she would be interested in, based on her participation in Australia), would attract any adverse attention from authorities. The applicant did not provide any evidence to explain why it would, nor could I identify any in the country information I reviewed. I also find that the applicant would be able to obtain a Bible from her official church in China, based on her own evidence and country information.
[6] See e.g. DFAT 2021 at 3.26.
[7] See e.g. DFAT 2021 at 3.33-3.34.
Accordingly, I find that the applicant would not be of any adverse interest to the authorities on return to China, due to her practice of Christianity, and would be able to continue practising in the way that I have found she would, without facing any harm or adverse consequences.
The applicant also claimed that she would be unable to attend church or fully practise her faith on return because she would be socially ostracised due to her connection with the claimed bookselling activities or her association with [Ms A] and the others referred to in the judgment document. However, given I have found that the applicant was not involved in those activities and was not associated with [Ms A] and the others, I find the applicant would not be socially ostracised for this reason.
Does the applicant meet the refugee / complementary protection criteria?
In summary, I have found the applicant:
a.did not participate in the claimed activities relating to selling or promoting religious books in China, or have any difficulties with authorities there on the basis of these claimed activities; so if she returns to China, she will not face any harm from the authorities, or social ostracism from churchgoers there, on this basis;
b.did not participate in any of the claimed public proselytising activities in China, or have any difficulties with authorities there on the basis of these claimed activities; so if she returns to China, she will not face any harm from the authorities there on this basis;
c.has a modest interest in and commitment to Christianity, has been baptised and attends church on an occasional basis, and that she also occasionally reads the Bible and prays in private settings in small groups; and if she returns to China, she would practise Christianity by occasionally attending an officially sanctioned church, occasionally reading the Bible, and occasionally participating in small private prayer groups (and would not publicly proselytise); and that she will not face any harm from the authorities there on this basis.
In light of these findings, I find that there is no real chance the applicant would face serious or significant harm, or any other kinds of harm as she claims, including from being arrested, fined, imprisoned, subjected to physical or mental harm, or socially isolated. Therefore I conclude that there is no real chance that the applicant would suffer serious harm if returned to China, now or in the reasonably foreseeable future. Accordingly, she does not have a well-founded fear of persecution for the purposes of s 5J of the Act, so she does not meet the definition of refugee in s 5H. For these reasons, I am 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), I have considered the alternative criterion in s 36(2)(aa). In light of the findings above, I conclude that there is no real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed to China. I am therefore 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Cabarrús
Member

ATTACHMENT
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). 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 below.
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 below.
Extracts from the 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.
…

[2023] AATA 4815

13 December 2023

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction