2009239 (Refugee)

[2022] AATA 1932

2009239 (Refugee) [2022] AATA 1932 (24 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2009239

COUNTRY OF REFERENCE:                   China

MEMBER:Phoebe Dunn

DATE:24 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 April 2022 at 4:23pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – Local church – Shouters – house church – physical assault – detention – church involvement in Australia – exit procedures – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Kavan v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo 91997) 191 CLR 559
Pan v MIEA (1996) 64 FLR 151
Prasad v MIEA (1985) 6 FRC 15
Subramanium v MIMA (1998) VG310 of 1997
Zhang v RRT & Anor [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 29 January 2018. The delegate refused to grant the visa on 2 June 2020 on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.

3. The hearing was heard during the COVID-19 pandemic and the applicant was initially invited to appear before the Tribunal by video-conference on 1 September 2021.  The hearing was subsequently converted to an in-person hearing at the request of the applicant, scheduled for 7 September 2021. The hearing was subsequently rescheduled twice; to 29 September 2021 and then to 14 December 2021, due to COVID-19 restrictions applying at the time which prevented the hearing being conducted in person. The hearing proceeded as an in person hearing on 14 December 2021.

4. The applicant was not represented in relation to the review. The hearings was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CRITERIA FOR A PROTECTION VISA

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. 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).

8. 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.

9. 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

10. 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.

11.   When considering the applicant’s claims, the Tribunal has had regard to the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report on the People's Republic of China, issued 22 December 2021[1].  The Tribunal notes that the most recent country information report was issued after the hearing of this matter was conducted. At the hearing of this matter, the Tribunal discussed with the applicant a range of independent country information, including that contained in the earlier DFAT Country Information Report on China issued 3 October 2019[2].  The Tribunal has carefully considered the updated country information and is satisfied that the new report is substantially similar in material respects to the earlier report. The Tribunal wrote to the applicant providing the applicant with sections of the new report relevant to the applicant’s claims, noting it was consistent in material respects with the information discussed with the applicant at hearing and invited the applicant to comment on the updated country information. The applicant did not respond.

[1] DFAT, Country Information Report: People’s Republic of China, 22 December 2021

[2] DFAT, Country Information Report: People’s Republic of China, 3 October 2019

1. The Tribunal has also had regard to DFAT’s 2019 Thematic Brief on China Religious Policy: Implementation of revised regulations on religious affairs (Protestants & Catholics)[3], DFAT’s Protestants in China, Background Paper (16 August 2015), DFAT’s Local Church in China Background Paper (January 2013)[4] and other country information.

   [3] DFAT, China Religious Policy: Implementation Protestants & Catholics Thematic Brief (6 September 2019)

   [4] DFAT, China – The Local Church – Update January 2013

2. The independent country information suggests that unregistered Protestant house churches have been able to operate with minimal interference from the authorities[5] and that, broadly speaking, religion in China can be practised within state-sanctioned boundaries, provided such practices do not challenge the interests or authority of the Chinese Government. The information states that members of both registered and unregistered religious organisations can face adverse attention by authorities when they are critical of the government or advocate for issues considered politically sensitive by the government or have a prominent role in a religious organisation.[6]

   [5] DFAT China Religious Policy: Implementation Protestants & Catholics Thematic Brief (6 September 2019)

   [6] DFAT Protestants in China, Background Paper (16 August 2015)

3. The country information indicates that President Xi has introduced a new campaign to sinicise religion, conform to socialist society and accept the authorities of the CCP.[7]  This Report notes the CPP is concerned about the outside influence of foreign governments and institutions and the subversion of the government to religion.[8]

   [7] DFAT Country Information Report – People’s Republic of China, 22 December 2021; DFAT China Religious Policy: Implementation Protestants & Catholics Thematic Brief (6 September 2019)

   [8] DFAT China Religious Policy: Implementation Protestants & Catholics Thematic Brief (6 September 2019)

4. The most recent Country Information Report states that the situation for protestants differs from place to place and community to community and that 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 interference. It also states that smaller churches are less likely to be seen as a threat to the state and less likely to be targeted.[9]

   [9] DFAT Country Information Report – 22 December 2021 [3.34]

5. The Tribunal has also considered specific country information regarding The Local Church (the Shouters).[10] This states that The Local Church (founded by Li (or Lee) Changshou) has its origins in the ‘Little Flock’ founded in the 1920s in Fuzhou by Watchman Nee and has a range of practices and theology that differs from more mainstream teachings.  The Local Church uses the Recovery Bible, re-translated by Witness Li re-translated and with extensive commentary added.  The Local Church holds distinct views, considering humanity totally sinful and humans as divided into flesh, soul and spirit, and has specific practices and rituals such as  the practice of prayer reading where people read together aloud from scripture, calling on the Lord or the name of the Lord, and baptism by immersion.[11]

   [10] DFAT, China – The Local Church – Update January 2013

   [11] DFAT China – The Local Church – Update January 2013, pp 7-13

6. This also states that Witness Li was openly anti-communist and the Local Church was ultimately banned in 1984, labelled as an evil cult and ‘the Shouter Sect’.[12]  However, some country level authorities have formally authorised Local Church congregations which operate legally in several areas including Shanghai, Nanjing, Fuzhou and in several rural counties in Fujian and Zhejiang Provinces.[13]

   [12] Ibid, p.14

   [13] Ibid, p.16

7. The Tribunal has also considered information in the DFAT Report[14] regarding security and entry and exit procedures, noting the following:

   [14] DFAT Country Information Report: People’s Republic of China, 3 October 2019. The Tribunal has also considered paragraphs [5.31] – [5.35] in the DFAT Country Report on China 22 December 2021.

   5.40 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.

   Identity

8. The applicant provided a certified copy of his Chinese passport to the Department.

9. Based on this information and without any information to the contrary the Tribunal accepts that the applicant is who he claims to be, and he is a national of China, which is also his receiving country.

10. Based on the information before the Tribunal it finds that the applicant does not have a right to enter and reside in any third country.

    Background

11. The applicant came to Australia in January 2014 on a [student] visa. This was subsequently cancelled in August 2014, but the applicant remained in Australia.

12. The applicant initially applied for a protection visa in November 2017 but the application was deemed invalid.

13. The applicant subsequently lodged a valid protection visa application on 29 January 2018.

14. The applicant attended an interview with the Department.

    Claims

15. The applicant made the following claims in his protection visa application:

    a.He does not wish to return to China where there are strong chances he will suffer harm and be persecuted by the Chinese Communist Party (CCP) on religious grounds.

    b.He was born into a Christian family and has strong religious beliefs. They always practised their belief at the family church in China.

    c.One of the founders of the local family church was Brother Witness Lee and he was from Shandong Province, thus there are a lot of people in Shandong Province that practice at the local family church in that area.

    d.Their family church was not registered with the Three Self Patriotic Association in China and in the past few decades members of the local family church had suffered cruel harm and persecution by the Chinese government. The church has been proclaimed as ‘shouters’ or an ‘evil cult’.

    e.When he came to Australia in January 2014, he didn’t apply for protection because at that stage members of his family had not be harmed or persecuted by the CCP.

    f.[In] September 2017 his wife was arrested for attending illegal house activities and was detained at [Detention Centre 1] for [number] days until [later in] September 2017. She was assaulted, her hair was pulled and she was threatened physically and emotionally.  She was warned not to attend any future local family church activities to avoid more serious punishment.

    g.There are many instances where members of the family church are arrested and detained. The local church is prohibited by the CCP and members of the local family church are still being persecuted and harmed.

    h.He is concerned that if he returns to China he will continue to attend the local family church and accordingly that there are strong chances that he will encounter the same problems as his wife and he will be arrested and detained by the Chinese authorities for practicing his beliefs.

    i.His wife is aware that he has been practicing his religion in China and in Australia. She advised him that currently there are stricter methods being used to crack down on religious practice all over China. His wife is concerned that if he returns to China he would come across the crackdown of the local family church.

16. At the detention interview the applicant stated that:

    a.He was arrested and detained because of his religion a long time ago, about 20 years ago.

    b.His wife was arrested but he couldn’t remember the dates.

    c.His wife was told to cease practising her religion.  She continues to practice her religion, but in secret.

    d.She hasn’t had any trouble since the arrest because she practices her religion in secret.

    e.He wants to stay in Australia because he is a Christian and if he goes back he and his wife might suffer persecution.

17. The applicant provided the following submissions to the Tribunal in advance of the hearing:

    a.Letter from the ‘[Local Church 1]’ dated [in] August 2021 which states:

    Dear Sir/Madam

    This letter is to confirm that [the applicant] (DOB of [specified]) is a Christian. If you should have any questions, please do not hesitate to call our serving brothers with a Chinese interpreter.

    Regards

    [Leader A and Leader B]

    b.Copy of an original and translated version of a detention release certificate dated [in] September 2017

    CERTIFICATE OF RELEASE FROM DETENTION

    Certificate Number: [Number]

    This is to certify that Detainee [The applicant’s wife], female, born on [date], has been released from detention as a result of the expiration of the detention period.

    The Detainee was subjected to administrative (judicial) detention (investigation) by [Detention Centre 1] [in] September 2017. The detention period commenced [between dates in] September 2017.

    [Detention Centre 1] [Round Seal]

    [Dated in] September 2017

    c.Article in Bitter Winter dated 29 May 2021 by Qi Junzao: Shouters: Crackdown Continues, Devotee Sentenced in Beijing.

    d.Article in ChinaAid dated 16 July 2019: Chinese Officials Crack Down on Christian Fellowship, Detail Believers’.

    e.Article in the New York Times dated 25 December 2018: ‘As China Cracks Down on Church, Christians Declare, We will not Forfeit our Faith.’

18. At the hearing, the applicant raised new claims as follows:

    a.The applicant was involved in spreading the word of the local Church and telling people about the benefits of the local Church.

    Country Information discussed at hearing

19. The Tribunal summarised and discussed with the applicant independent country information relevant to his claims[15].  As noted above, following the hearings, DFAT has issued a new report on China which the Tribunal considers is substantially similar to the sections of the report discussed with the applicant at hearing. The Tribunal has also given the applicant the opportunity to comment on updated country information and the applicant did not do so. The Tribunal explained that the independent country information suggests that:

    [15] DFAT, Country Information Report, People’s Republic of China, 3 October 2019; Department of Immigration's Background Paper on Protestants in China, August 2015; and the 2019 Thematic Paper on the Implementation of Revised Regulations on Religious Affairs (Protestants & Catholics).

    a.The Chinese Constitution (article 36) provides that citizens enjoy freedom of religious belief, however in practice that freedom is restricted and religious practice is monitored by the Chinese authorities.

    b.Chinese law recognises five religions (including Catholicism and Protestantism) and religious groups belonging to those religions are required to be registered with the government and be independent of foreign associations.

    c.In 2018 the US Government estimated that there are 38 million Protestants in China of which 20 million affiliate with government sanctioned Protestant Three-Self Patriotic Movement. Protestants who practice their religion through state churches are able to do so relatively freely, although the state controls aspects of their activities and requires political loyalty over religious piety.

    d.Local, house, family churches were cracked down on in the 1980’s and 1990’s, but since the turn of the century house churches have typically be able to operate with minimal interference from the authorities. Larger congregations come under pressure to register as State sanctioned churches.

    e.President Xi has implemented the sinicisation policy - actively guiding religion to adapt to a “socialist society”, become more Chinese in orientation and accept the authority of the Party.

    f.An individual's ability to practice religion can be influenced by whether their religious expression is perceived by the authorities to be closely tied to political and security issues or the individual has a prominent role in the religious organisation, such as a leader.

    g.The CCP tightly controls their borders and it is likely that those who have come to adverse attention of the authorities will have difficulties leaving China.

    h.Fraudulent documents are very common in China asylum seekers can obtain suites of documents to assist with protections claims. The online application system also provides opportunity to doctor copies of genuine documents.

    i.The situation is different for those who follow religious groups which are explicitly banned and designated as an 'evil cult' by the Chinese authorities.  DFAT reports that those who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment. The Criminal Law in China provides for prison sentences of up to seven years for individuals who use 'superstitious sects, secret societies or evil religious organisations' to undermine the state's laws or administrative regulations. However, DFAT can’t verify the extent to which the Shouters remain active in China.

1. As noted above, the Tribunal wrote to the applicant noting that a new DFAT Country Information Report had been released about China since the date of the last hearing. The Tribunal noted that it considered the information to be substantially similar to the relevant sections of the report discussed with the applicant during the hearing. The Tribunal provided the applicant with relevant sections of the report and highlighted the following information, inviting the applicant to comment on or respond to relevant updated country information about China:

   a.Under President Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion and new regulations are designed to enhance government control over religious organisations.

   b.Home church gatherings have been tolerated (to a degree) over the past decades, but controls are tightening.

   c.Most Protestants worship in house churches. Large groups are more likely to come to the attention of the government whereas small groups are able to meet in private.

   d.The situation for Protestants differs from place to place and many communities have been largely unaffected.

   e.The local church (shouters) is not as actively pursued in China as they once were and may no longer be banned.

   f.Exit and entry into China is strictly regulated. If a person is on an exit control list it is highly unlikely that they would be able to leave China. It is almost impossible to exit China without the knowledge of the authorities.

   g.Fraudulent documents in China are very common and the scale of the fraud is unmatched anywhere in the world. Criminal syndicates may provide a suite of documents to asylum applicants. As most applications are made online there is a further opportunity to doctor copies of genuine documents that are uploaded into the system.

2. The applicant did not respond to the Tribunal’s letter.

   Evidence at hearing

3. The applicant was raised in Shandong Province. His parents and his [specified family members] still live in Shandong Province. He has been married for over twenty years and has two children; [ages and gender specified]. His wife is the mother of both of the children. He was educated to [grade] level, finishing around [year range]. He then worked as an [occupation 1] for a small company and then became [an occupation 2] and was [an occupation 2] before he came to Australia.

4. The applicant stated that he had completed the application form himself. When asked if he had ever travelled to another country prior to coming to Australia he stated that he had been to [Country 1] for tourism sometime before 2012 but he could not recall the specific dates.

5. He arrived in Australia on a [Student] visa in January 2014. He came to Australia to accompany his son who came to study [education level]. His son was around [age] years old at the time. His son didn’t finish [this education level] here as the tuition fee was too high and they could not afford it. He was working [at specified businesses] as [an occupation 3]. His stated that his son went back to China in 2018 because he didn’t want to stay in Australia anymore, but he (the applicant) decided to stay.

6. The Tribunal noted that his [student] visa had been cancelled in August 2014 and asked if the applicant if he had made any efforts to regularise his visa. In response, he stated that at the time he did not understand the significance of the visa cancellation and of not having a valid visa and he was not in the mood to do anything about it.

7. The Tribunal noted that he had first applied for protection in November 2017, nearly four years later. The Tribunal asked the applicant why it took him so long to apply for protection. In response, he stated it took him so long because he did not speak English and he did not know about protection visas and he was ‘not in the mood’ to apply.

8. The Tribunal asked the applied why he had applied for protection. In response, he stated that he applied for protection because he would like to continue to stay in Australia. When pressed on why he stated that  he was fearful he could be persecuted as a Christian if he returned to China.

9. The applicant stated that his parents converted to the Local Church before he was born and he was raised a Christian. As a Christian he believes that believers of Jesus will be safe and non-believers will go to hell, Jesus is our father in heaven and the son of God, Jesus is his saviour and the mother of his life, Jesus died for humanity and he lives for Jesus.

10. The applicant claims to have been raised as a Christian from birth and that he was baptised at [age] years old. He stated that his parents are members of the Local Church, and his [specified family members] are also members. He stated that his wife converted at the age of 20 years old under her family’s guidance. He stated that his [children] are both followers of the Local Church but [one] is not yet baptised.  The applicant stated that in China, he attended church gatherings every week at the Minister’s family home and sometimes at other people’s houses. He stated that he started attending at the age of [age] and was a regular since the 1980s until he left China to come to Australia. He stated that he did not want to attend a state sanctioned church is China because he is not free to share with others – only the Minister is permitted to speak. He stated that he fears returning to China because the Local Church is not allowed by the government.

11. The Tribunal sought further details from the applicant about his faith. In response he stated that he started attending house churches a long time ago, since the age of around [age range] years old. At the meetings they would sing hymns, drink wine (Jesus’ blood) and share opinions on Christianity. His [specified family members] both attended. When asked he said none of his parents or his siblings had every been arrested or detained for practising their faith.

12. When asked how often he attended church, he stated once per week on a Sunday at the home of the church leader. At first he said it was always went to the same place (the church leader’s house), then he stated they would sometimes go to other peoples’ houses. When asked what they would do, he stated that they would sing and share stories.

13. When asked for further information about the bible, he stated that he can’t remember the names of the hymns but they sing from the bible and he reads the Bible often. When asked how often he stated that he only goes to church once a week because he is busy at work and sometimes he would read the bible at home if he is not busy at work.

14. The Tribunal asked the applicant what was important to him about his religion. In response he stated that the is a devout Christian and thinks that those who believe in Jesus can be saved and those that don’t will go to hell. When asked if he was ever involved in proselytising in China he stated that he would talk to his colleagues about the benefits of attending church. When asked he said that he was not a leader and did not distribute pamphlets.

15. The Tribunal invited the applicant to tell the Tribunal what aspects of the Bible he enjoys the most. In response, he recounted a story of Jesus saving a person with measles and they fully recovered and another story about Jesus restoring the sight of a blind person. When pressed for further details he stated that he firmly believed that those who believe will go to paradise and those who do not will go to hell. He stated that he did not have anything else to say but then stated that there was another story of an official who sought Jesus’ help to cure his son and Jesus told him to go home because his son would be recovering.

16. The Tribunal asked the applicant when he last read the Bible. In response he stated that because of the pandemic he has not been to church for a year and hadn’t read the Bible. The Tribunal noted that the applicant had stated he was a devout Christian and that his evidence that the last time he read the bible was a year ago was not consistent with this claim. In response, the applicant stated that work can be quite busy and he can sometimes be too tired.

17. The Tribunal asked the applicant if he had ever experienced harm in China for practising his faith. In response he stated that he was detained in the past by the authorities and so was his wife. He was detained for attending a house church meeting in 2003. When pressed on how long he was detained for, he stated 5 days, but he could not remember the dates. When asked what happened to him when he was detained, he stated that he was beaten and verbally abused. When asked how many others were at the house church meeting he stated that there were over 10 people and they were all arrested and all detained for 5 days. The authorities warned them not to attend house church anymore.

18. The Tribunal noted that the applicant had not included any details in his protection visa application about his claims to have been arrested and detained for practising his religion and asked him why he had not done so. In response he stated that it had happened many years ago and he did not think it was relevant but he included his wife’s arrest and detention. The Tribunal asked why, if he was claiming to fear harm due to his religious beliefs, he would not think it was relevant to included details of his arrest and detention for practising those beliefs. He stated that he believed it was not beneficial to his application because it was too long ago.

19. When asked about his wife’s detention he stated that it all depends on the government – sometimes they crack down and sometimes they are not very strict. He stated that she attended a house church meeting and it was reported by others and the police arrested them. His wife told him that there were about 7 or 8 people there and that she was detained for a week in September 2017. He stated that she is still attending house church meetings and had not been arrested again. 

20. The Tribunal asked whether the applicant had been attending church in Australia. He stated he lives with two people in Australia who he does not know well. One believes in Christianity. One is a member of the Local Church, but he rarely sees him because of shift work. In Australia he went to church to pray every Sunday, to a large church in [Suburb 1] located at [address]. He started attending two to three years ago.  When asked why he did not start attending church in Australia when he first arrived he stated that he did not attend before that because he was not familiar with the environment or the language in Australia.  When asked for further details about the church services, he stated that he attends the meetings held in Mandarin. Since the pandemic he has not been very often. He confirmed that he started attending 4 or 5 years after arriving in Australia but it was before he applied for protection (sometime in 2016 or 2017). He found out about the church and started attending. He stated his son did not attend with him.

21. The Tribunal asked if his son attended church in China. In response he stated that he would sometimes attend, but because he is a young person he doesn’t attend very often. [The other child] attends with is wife. His son is back living with his wife.

22. The Tribunal sought further details about the [Local Church 1]. He stated it is a local church. He stated he attended every Sunday and many people were there, sometimes 20 to 30 sometimes 50 to 60. They sing hymns and share stories, drink wine and eat biscuits (blood and body of Christ). When asked who the leaders of the Church were, he stated [Leader A] and [Leader B]. When asked for further details about the services, he stated that the services start at 10.00am and are conducted in Mandarin. He did not expand on the nature of the Church or the services. He said there is another Church were they have services in English but he doesn’t know the name and he was always taken there by a friend. He mostly goes to the [Suburb 1] church.

23. The Tribunal asked the applicant about the last time he attended the [Local Church 1]. He stated it was about 6 months ago, online. He went to a friend’s house in [Suburb 2] and they watched it together. When asked why he had not attended any services more recently, he stated that because he has limited English it’s hard for him to log-in on the computer. When asked what happened in the service he said they prayed together. When asked what they prayed about he stated that they praised God and ask him to be their saviour. He stated that church leader spoke first then they shared stories. When asked what story he shared, he stated that he shared his view that he can get help and support from other Christian brothers and sisters.

24. When asked if he had attended in person hearings since the restrictions had been lifted he stated that it was too far away for him to go because he had been living and working in [Town 1] since about July or August 2020. The last time he went in person he was living in [Suburb 2]. When asked where he was living when he attended the on-line service he stated that he was in [Town 1] and he travelled back to [Suburb 2] because he is still renting a property there but he has not been back to the Church in person. He said he attended on-line services around 3 to 5 times.

25. The Tribunal invited the applicant to provide further information to the Tribunal about the documents he submitted to the Tribunal. In response he stated that he had submitted the letter from the [Local Church 1] to prove he had been attending church in Australia. When asked how he obtained the letter he stated that if you need a letter they will provide them. When asked how he contacted the authors of the letter, he stated he called them and went to their home to pick up the letter. When asked when this was, he said about 2 to 3 months ago but he couldn’t remember when. It was when he got the request from the Department of Immigration. He stated that he travelled to their home from [Town 1] to [Suburb 2] and they signed it on the spot. When pushed, he said he went to ‘[variant of Leader A’s]’ home first, then [Leader B’s] home to get it signed.

26. In relation to the certificate of release from detention he stated that when he was released he was warned that they would continue to arrest him if he continued to go to house church and they gave him a certificate of release. The Tribunal noted that the certificate related to his wife, not to him and asked why he hadn’t provided a certificate relating to his detention to the Tribunal. In response he stated that it’s in China and his wife may not be able to find it because they have moved several times. He said the certificate is issued by the police.

27. The Tribunal asked the applicant about the articles he provided and how they related to his claims. In response, he stated that they related to the treatment of Christians and the treatment of the ‘Shouters’. The Tribunal put to the applicant independent country information about the treatment of Christians in China and house or local churches, noting that while there has been recent tightening, the country information shows that house churches have typically be able to operate with minimal interference from the authorities.[16] In response, he stated that this is propaganda and the reality is that it is not like this. The government calls them the ‘Shouters’ and classifies them as an evil cult. The Tribunal noted that this was the first time he had mentioned the term ‘Shouters’ during the hearing, despite being offered multiple opportunities to describe his faith and articulate why he fears returning to China. The Tribunal asked the applicant why he had not raised this earlier. In response, he stated because the Tribunal did not ask.

    [16] DFAT China Religious Policy: Implementation Protestants & Catholics Thematic Brief (6 September 2019)

28. The Tribunal then raised independent country information about religious organisations that have been classified as banned evil cults, noting that DFAT is unable to verify the extent to which the Shouters remain active in China. In response the applicant stated that as a Shouter they shout out the name of God loudly and stamp their feet to show respect for God. The Tribunal invited the applicant to provide further details about the Shouters and their faith, but the applicant did not do so.  

29. The Tribunal raised with the applicant independent country information about exit and entry procedures from China noting that the security and identity checks at the airport are comprehensive. [17] The Tribunal notes that the country information applicable at the time of the applicant’s departures regarding monitoring activities and exit and entry procedures is consistent with the information raised with the applicant at hearing and as such the Tribunal has proceeded to rely on it.[18] The Tribunal noted that he departed China twice; once to travel to [Country 1] in 2012 and then to travel to Australia and his capacity to do so without incident indicates that he was of no interest to Chinese authorities. In response he stated that sometimes the government are strict and sometimes they are relaxed. He stated that this is just propaganda and its not really like that. When he was released from detention they told him not to attend house churches anymore but he continued to do so. The Tribunal noted that on the applicant’s evidence he had continued to attend house church meetings before he left in 2014 and that he left without incident despite being arrested and detained. In response, he stated that this was because he had been attending secretly. If they found out he was attending, things would have been different.

    [17] DFAT Country Information Report – China, 3 October 2019 at [5.40] – [5.42]

    [18] See also DFAT Country Information Report – China, 3 March 2015 at [5.16]; DFAT Country Information Report – China, 21 December 2017 at [5.20]; DFAT Country Information Report – China, 21 December 2021 at [5.31] – [5.35]

30. The Tribunal noted its concerns that he had not provided his own detention release certificate, just his wife’s, and that this may lead the Tribunal to consider he had made up the claim to further his protection visa claims. In response, he stated that it was not requested specifically. The Tribunal then raised with the applicant independent country information indicates that there are highly organised and well-resourced organisations active in China, selling fraudulent documents to visa applicants, and this may suggest that the release certificate is not genuine.[19] In response he stated that he swears that it is truthful and authentic and that he has never heard about the fraud.

    [19] DFAT Country Report, 3 October 2019 [5.61] – [5.65]

31. When asked, the applicant stated that he could not relocated because he would always attend house church meetings wherever he goes in China and these are not permitted. The authorities wouldn’t protect him as long as he attend a house church. He wouldn’t attend a registered church because at the house church everyone is equal as brothers and sisters and they can share their feelings easily.

32. When asked if there was any other basis on which he feared harm on return to China he stated that he would continue to attend house churches in China and would be persecuted because it is classified as the Shouters and an evil cult.

33. The Tribunal raised with the applicant in accordance with procedural fairness requirements inconsistent information about his employment history in China noting that in his that in his protection visa application he had stated that he a farm labourer before coming to Australia, whereas before the Tribunal he had said he was an [occupation 1] and [an occupation 2]. The Tribunal noted that this inconsistency may lead the Tribunal to doubt the truthfulness of the applicant’s evidence and his claims. In response, he stated that he did not have a fixed jobs, he did different things every day in China, sometimes [as an occupation 1], sometimes [an occupation 2]. When pressed about why this wasn’t included he stated he was not comprehensive in his protection visa application.

1. The Tribunal noted that the delay in applying for protection of nearly four years may cause the Tribunal to consider that the applicant did not fear returning to China as claimed. The Tribunal also noted that the applicant had stated that he wanted to stay in Australian to work and that this suggests that he wanted to stay in Australia for lifestyle or economic reasons not because he had a well-founded fear of persecution. In response, he stated that his main reason is his fear of persecution. When he first came to Australia he didn’t have any English or friends and that’s why it took him so long to apply and find a Church to attend.

2. The Tribunal noted that the applicant had given an inconsistent account of his claims and had not raised his detention in his protection visa application. In response he stated that it happened a long time ago and he didn’t want to mention it, he didn’t feel like talking about it. Because it happened along time ago, it only left a vague impression in him. The Tribunal also noted that the applicant had raised new claims to have proselytised and helped to spread the word of God. The Tribunal noted it was required under s 423A of the Act to disregard new claims raised at hearing unless the Tribunal was satisfied that there was a good reason that these claims were not raised earlier. The Tribunal noted that these new claims and inconsistencies may give the Tribunal cause to consider that he had made up the claims. In response, he stated that he only answered the questions asked of him. If it wasn’t asked he didn’t tell.

3. The Tribunal raised with the applicant its concerns about the vague nature of the applicant’s evidence regarding his Christian faith and how he exercised that faith. The Tribunal noted that the applicant had only raised evidence regarding the Shouters and the practice of stamping feet and shouting out God’s name at the end of the hearing and had not mentioned this when asked to describe the house church meetings in China and in Australian. The Tribunal noted that this may lead the Tribunal to consider that the applicant was not being truthful. In response, he stated that he is not well educated and did not feel like talking a lot and had nothing more to say about this.

4. The Tribunal raised with the applicant its concerns that detention release certificate for his wife appeared to be a photocopy of a copy in which the applicant's name, birth date and period of detention have been manually inserted in pen, was an easy document to fake and from which it is not possible to see any features which may support its authenticity. The Tribunal noted independent country information about the prevalence of fraudulent documents in the visa context. The Tribunal raised with the applicant its concerns and invited the applicant to comment on the concerns. In response he stated that he was planning on providing the original but he was worried that it might be intercepted at customs and his wife would be persecuted so he asked her to scan it to him.

5. The Tribunal discussed with the applicant the letter from the ‘[Local Church 1]’. The Tribunal noted that it was a generic letter and did not provide the Tribunal with any information about the applicant’s involvement in the [Local Church 1], such as whether he attended the Church, where he attended the Church, how long he had been attending, how often he had attended, or how involved he was in Church activities. The Tribunal noted that it did not provide any detail about the applicant’s faith practices in Australia. The Tribunal noted that the letter simply stated that he was a ‘Christian’ but provided no other context or details regarding how the authors of the letter had reached that conclusion. The Tribunal noted that there was nothing in the letter to establish that the applicant was a practicing Christian in China. The Tribunal noted that as such, it did not consider the authors of the letter were in a position to comment on his faith or faith practices in China. The Tribunal also noted that the letter was not on letterhead and appeared easy to forge. The Tribunal stated that in those circumstances it was not clear what weight, if any, the Tribunal could give to the letter. The Tribunal invited the applicant to provide further details to the Tribunal about the context in which the letter was provided and its contents.

6. In response, the applicant stated that this was the form of the letter that the [Local Church 1] was giving to anyone who asked for it. The applicant stated he that got it as soon as the Department asked for it. Noting that the applicant’s engagement with the Department was over a year ago, the Tribunal asked when the Department had sought this letter. The applicant stated that the Department asked for it two to three months ago and he got it straight away. The Tribunal sought further clarification and ascertained that the applicant was referring to the hearing invitation from the Tribunal.

7. When asked to provide further details about how he obtained the letter if he hadn’t been to church in person for over a year, the applicant stated that he had called them and driven from his house in [Suburb 2] to the house of [Leader A] and he has produced it on the spot and signed it. When asked where he lived he responded ‘[Suburb 1]’. When asked whether the other person who signed the letter was also living in the same house he stated no, he had to drive to their house to get the second signature.  The Tribunal asked the applicant when he had obtained the letter and he stated two to three months ago. When asked to confirm the date he obtained the letter, the applicant was vague and stated two to three months ago. The Tribunal noted that the letter is dated [in] August 2021 and that this was nearly five months ago. The applicant stated that he obtained it as soon as he was asked for it.

8. The Tribunal raised with the applicant its concerns about the timing of when he started attending church in Australia, noting that it coincided with his application for protection, which may lead the Tribunal to consider that he had only attended church in Australia to further his protection visa application and as such had to be disregarded under s 5J(6) of the Act. In response, he stated that he had attended church but he didn’t know how to provide a reference letter, adding that if he hadn’t attended the church services they would not have provided the letter.

9. The Tribunal raised with the applicant its concerns that the applicant appeared to have a limited understanding of Christianity or the Bible, despite claiming to have been a devout Christian and reading the Bible regularly. The Tribunal noted that the applicant gave very vague responses about his faith and what was important to him and could not recall what was discussed at the last church service he attended or from his reading of the Bible. The Tribunal noted that the applicant’s responses appeared rehearsed. The Tribunal noted that this may cause the Tribunal to consider the applicant was not a Christian as claimed, or a follower of the local church or a Shouter and that he had fabricated his claims to secure a visa. In response, he stated he is not good at expressing himself so didn’t provide much detail. The Tribunal invited the applicant to provide further details. The applicant stated that everyone who attends house churches needs to be baptised and they take them to the sink and use water to baptise them. After they are baptised they are a Christian. This happened in China when he was nearly [age] years old. When asked if there was anything else he wished to share, he stated that he had nothing more to say.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.

11. The applicant provided a copy of the delegate’s reasons for decision with the application for review. The Tribunal also has a copy of the Departmental file and has had regard to the documents on that file.

12. The Tribunal, in reaching its decision, has taken into account all of the evidence before it, including oral evidence of the applicant at the hearing and pre and post hearing submissions, the contents of the Departmental file and independent country information about China.

13. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

    Credibility

14. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by the refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All of this is considered in these findings.

15. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim.

16. The Tribunal does not have responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim (s 5AAA of the Act). Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[20]

17. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. [21]

18. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[22]  However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

19. During the hearing, the Tribunal developed concerns about the truthfulness of the applicant’s evidence in relation to his Christian beliefs, his attendance at house or local churches in China, being a Shouter and claimed events in China and overall, did not find him to be a credible witness. The Tribunal found aspects of his evidence to be vague, lacking in detail, lacking spontaneity, rehearsed and repetitive. The Tribunal did not consider the applicant to be a witness of truth.

    [20] MIEA v Guo 91997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FRC 15 at 169-70.

    [21] Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194.

    [22] The United Nations High Commissioner for Refugees’ handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at [196].

20. The Tribunal’s concerns are discussed below.

    Findings and reasons

21. The Tribunal accepts that the applicant grew up in Shandong Province and lived there until he came to Australia on a [student] visa with his son. The Tribunal accepts that the applicant’s wife and [other child] remained in Shandong Province and that his son has since turned and is back living with his wife.

22. The Tribunal acknowledges that every faith has a range of devotees with varying levels of knowledge and devotion to the teachings of that faith, and an inability to exhibit deep knowledge about or quote passages from a holy book on demand may not indicate any more than that the adherent has embraced the ideology behind the text and not committed the words themselves to memory. Conversely, the ability to quote passages and religious ideas at length may simply be an indicator that the applicant has learned to do so for the purposes of strengthening their claims of being among the faithful.

23. The Tribunal accepts that the applicant was able to recount some tenets of the Christian faith and was able to relate some stories from the Bible. The applicant was also able to describe some practices of local house churches in China, which differ from mainstream Christian churches. However, the Tribunal noted that the applicant’s evidence appeared vague, repetitive, lacking in detail and rehearsed. The applicant’s evidence was rudimentary, generalised and did not provide any specific details about specific teachings of the local church or the Shouters. The applicant did not mention the Recovery Bible or key figures from the local church such as Watchman Lee. When pressed on key matters, the applicant was not able to recall what was discussed at the last service he attended (other than to say they sang songs drank wine and shared stories) or when he last read the Bible. The applicant was not able to provide any detail about the services he attended in China or in Australia, other than to say they sang songs, drank wine and shared stories. When pressed about what story he shared at the last service he attended in Australia, he described in general terms a story about being supported by his Christian brothers and sisters.

24. The Tribunal has considered whether the length of time since his last service may impact on his ability to recall in detail what was discussed at the service and accepts that this may contribute to the lack of detail provided about his faith practices in Australia and the nature of the services held at the [Local Church 1]. The Tribunal has also considered his explanation for not recently reading the Bible, being that he has been too busy. The Tribunal accepts that his work commitments may impact on his capacity to attend services in person or on-line but is not satisfied that this explains why he had not recently read the Bible at home, given his claim to be a devout Christian. The applicant was invited to provide details about and describe the services he attended in China and Australia but was not able to expand beyond the information noted above. As noted, the Tribunal found the applicant’s evidence to be generalised, lacking in detail and rehearsed. The Tribunal considers that a person who attended church in China and in Australia for the length of time and the frequency claimed by the applicant and who claimed to be a devout Christian would have been able to provide more detailed and specific information about the nature of those services and of his faith.

25. As noted above, the Tribunal also had concerns about the vague and generalised nature of the applicant’s evidence regarding his Christian faith and how he exercised that faith. The Tribunal considers that the evidence given by the applicant about the Christian faith and Christian practices in China is evidence that could have been obtained from publicly available sources and memorised by the applicant. This includes information about the practices of the local church in China and the Shouters.

26. The Tribunal’s concerns about the truthfulness of this evidence were heightened when the applicant failed to give any specific details about his claims to be a member of the Shouters until the end of the hearing, after the applicant had been given multiple opportunities to describe his faith and the specific practices of his faith. The applicant stated that as a shouter he feared persecution because it was a banned evil cult towards the end of the hearing when pressed on why he feared returning to China. The applicant stated that he was a Shouter and as a Shouter they yelled out the lord’s name and stamped their feet. The Tribunal notes that this was the first time this specific evidence had been raised, despite the applicant being invited multiple times during the hearing to describe the nature of the practices of the local church in China. The applicant was invited to explain why he had not raised it earlier but was vague and did not address the question. The Tribunal considered the applicant’s evidence about the Shouter’s to be vague, rehearsed and unconvincing.

27. The Tribunal also has concerns about the applicant’s claims to have been detained in China on account of his faith. The Tribunal noted that these claims were not raised in the applicant’s protection visa application and that this gives rise to cause for concern that the applicant had made up the claim. The Tribunal has carefully considered the applicant’s response that he did not think this was important because it happened a long time ago and did not leave an impression on him. The Tribunal accepts that he raised his claims to have been detained in China in his interview with the Department. However, the Tribunal had concerns about the applicant’s explanation for not raising it in his protection visa application. The Tribunal considers that if the applicant had been detained and verbally and physically assaulted because of his faith, the applicant would have included this detail in his protection visa application. The Tribunal does not accept that he would not consider details about his arrest and detention to be significant. The Tribunal considers that, if true, the applicant would have included these details in his protection visa application as an example of harm experienced by him associated with his claims.

28. The Tribunal also has concerns about the applicant’s claims raised at hearing that he had proselytised in China and helped to spread the word of God. When asked why he had not raised this earlier, the applicant stated that he only answered the questions asked of him. The Tribunal notes that the applicant did not raise this claim in his protection visa application or in his interview with the Department. Having regard to independent country information about the treatment of those who proselytise and who are leaders or elders, the Tribunal does not accept that, if true, the applicant would not have raised this earlier simply because he had not been asked. Noting that this claim was not raised with the Department at interview or in the protection visa application, the Tribunal considers that the timing of raising this claim gives rise to concerns that it has been fabricated to enhance his application. Accordingly, the Tribunal does not accept this claim.

29. The Tribunal also had concerns about details in the applicant’s protection visa application which differed in material respects to his oral evidence about his employment history. Before the Tribunal, the applicant claimed to have been an [occupation 1] and [an occupation 2], whereas in his protection visa application he stated that he was a farm labourer. When raised with the applicant, he stated that he did many different things each day, including [as an occupation 1] and [an occupation 2]. The Tribunal found the applicant’s explanation for these discrepancies unconvincing. However, noting that these inconsistencies do not directly relate to the applicant’s claims for protection, the Tribunal will not be placing much weight on them.

30. The Tribunal also notes that the applicant was able to leave and return to China for a holiday in [Country 1] prior to coming to Australia and that on his evidence he was able to leave China to travel to Australia without any issues. As noted above, the Tribunal raised with the applicant at hearing independent country information about exit and entry procedures from China. The Tribunal notes that the country information applicable at the time of the applicant’s departures is consistent with current country information and as such the Tribunal has proceeded to rely on it.[23] The Tribunal considers that this information suggests that the applicant was of no interest to the authorities, notwithstanding his claims to have been arrested and detained as a member of a banned evil cult. This added to the Tribunal’s concerns that the applicant was not a witness of truth.

    [23] See also DFAT Country Information Report – China, 3 March 2015 at [5.16]; DFAT Country Information Report – China, 21 December 2017 at [5.20]; DFAT Country Information Report – China, 21 December 2021 at [5.31] – [5.35]

    Delay in applying for protection

1. The Tribunal has considered the applicant’s claimed fears of persecution based on the applicant’s Christianity in the context of his significant delay in applying for a protection visa. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant's fear of persecution.[24]

   [24] Zhang v RRT & Anor[1997] FCA 423; Kavan v MIMA[2000] FCA 370; Subramanium v MIMA (1998) VG310 of 1997.

2. The applicant arrived in Australia in 2014 and became an unlawful non-citizen shortly after when his [student] visa was cancelled. He did not apply for protection until November 2017 (the invalid application) and then again in February 2018 (the application that is the subject of this review application. When asked to give an explanation for the delay he stated that he was not aware of the consequences of having his visa cancelled and did not know he could apply for protection. He also stated that his wife was arrested in later 2017 and that’s why he applied for protection, but later said he had been arrested in 2003 and had to practice his faith in secret in China for fear of being arrested again, because the government did not permit house church meetings. He later said that he feared persecution because he was a Shouter and they are classified as a banned evil cult.

3. The Tribunal has considered the applicants assertions that the delay in applying for protection was because he was not aware of the consequences of having his visa cancelled or that he could seek a protection visa. The Tribunal did not find these reasons for delay to be convincing. The Tribunal considers that if the applicant feared persecution due to his religious beliefs, he would have taken steps to regularise his visa status rather than risk being returned to China.

4. The Tribunal has also considered whether the applicant’s fears increased due to his wife’s detention and that’s why he did not apply until November 2017. The Tribunal accepts that, if the applicant’s claims are true, his wife’s detention would have heightened his fears. However, having regard to the applicant’s evidence at hearing of being detained himself previously for his religious beliefs and his claim to fear persecution because he is a member of a banned cult (the Shouters), the Tribunal does not accept that he would have delayed applying for protection until a member of his family had suffered harm. The Tribunal considers that this adds to its concerns about the applicant’s credibility and did not find the applicant’s reasons for the delay convincing.

5. In the Tribunal's view the applicant's delay in lodging a protection visa application further suggests that the applicant is not a credible witness and that the basis for his claims for protection should not be accepted.

   Detention release certificate

6. The Tribunal has also considered the detention release certificate provided by the applicant in the context of the applicant’s claims that he delayed applying for protection because neither he nor his family had been harmed prior to the claimed detention of his wife. For the reasons identified above, the applicant has provided inconsistent reasons for his delay and inconsistent evidence of his experiences prior to leaving China. Having regard to the country information about the prevalence of fake and forged documents in the visa context, the timing of the applicant applying for protection and the timing of the claimed detention, the Tribunal has serious concerns about the authenticity of these documents. As noted above, the Tribunal raised with the applicant its concerns that detention release certificate for his wife appeared to be a photocopy of a copy in which the applicant's name, birth date and period of detention had been manually inserted in pen, was an easy document to fake and from which it is not possible to see any features which may support its authenticity.  Having regard to the applicant’s concerns about the truthfulness of the applicant’s evidence regarding his experiences in China and his reasons for delaying applying for protection, the Tribunal was not persuaded that the applicant did not provide the original detention release certificate because he was worried that it might be intercepted at customs and his wife would be persecuted. Accordingly, the Tribunal has determined that it would not be placing weight on this document and does not accept that it establishes that the applicant’s wife was detained in China on the basis of her religious beliefs as claimed.

   Attendance at the ‘[Local Church 1]’

100.   The applicant asserts that he has been attending the [Local Church 1] in [Suburb 1] since some time in 2016 or 2017, but he could not remember exactly when he started attending the [Local Church 1], but it was four to five years after he arrived in Australia.  The applicant’s son did not attend with him. The applicant asserts that prior to the pandemic he attended every week on a Sunday. The applicant stated that the services have been online during the COVID-19 pandemic, but that in person services had resumed. The applicant stated that the last time he attended the Church was online about six months ago when he went to a house in [Suburb 2] and watched the service with others. When asked why he did not attend more often he stated that he did not know how to use the computer because the instructions were in English. When asked if he had returned to in person services he stated that he had not because he is currently living in [Town 1] for work and it was too far away. When asked why he did not commence attending Church as soon as he arrived in Australia, he stated that his English is bad and he did not know about the [Local Church 1] until he found out from some friends. When asked whether he continued to read the bible during the years that he was not attending church in Australia he stated that he sometimes read the bible.

101.   The Tribunal sought further details from the applicant about his attendance at the [Local Church 1] and what occurred at the services, but found the applicant’s responses vague and lacking in detail. When asked about what he did at the Church, he was not able to expand on his experiences other than to say that he went every Sunday and they sang songs, share stories, drink wine and eat biscuits. Noting that the applicant stated that he went every week on a Sunday from about 2016 or 2017 until the start of the COVID-19 pandemic in March 2020 (some three or four years) and noting the applicant’s evidence that the services were in Mandarin, the Tribunal would have expected the applicant to be able to provide more detail about the [Local Church 1] and what occurred at the services every Sunday. When asked about the last service he attended, he stated that it was online about 6 months prior. When asked what occurred during that service he stated that they prayed together, praised God and asked him to be their saviour and shared stories. When asked about what story he shared, the applicant said he spoke about being able to get support from his Christian brothers and sisters. The Tribunal considered the applicant’s response to be generic and generalised.

102.   The Tribunal raised with the applicant its concerns that the timing of when he commenced attending the [Local Church 1] (some time in 2016 or 2017) coincided with him applying for protection (both the earlier invalid application and the application before the Tribunal). The Tribunal raised with the applicant that s 5J(6) of the Act required the Tribunal to disregard any conduct engaged in by the person in Australia unless the person satisfies the Tribunal they engaged in the conduct otherwise than for the sole purpose of furthering their claims for protection. In response, the applicant stated that he had attended the [Local Church 1] and that he hadn’t provided the reference letter earlier because he didn’t know how to. The applicant stated that if he hadn’t attended services at the [Local Church 1] they would not have provided the letter.

103.   As discussed above, the Tribunal found the applicant provided vague and general details about the nature and extent of his involvement in the [Local Church 1], such that the Tribunal cannot be clear about those details. The Tribunal is willing to accept that the applicant attended the [Local Church 1] both in person and online and that he started attending sometime in 2016 or 2017. However, the Tribunal makes no finding on the extent or depth of that involvement, noting that there is no independent information to corroborate his faith practices in Australia. The Tribunal notes the letter from the [Local Church 1] but does not consider it is instructive of the extent or depth of his faith practices in Australia. The Tribunal has carefully considered the letter from the [Local Church 1] but does not accept that it provides evidence of the applicant’s faith or faith observance in China. For these reasons, the Tribunal is not placing any weight on the letter from the [Local Church 1].

104.   Having considered the totality of the information before it, the Tribunal is not satisfied that the applicant was involved in the [Local Church 1] for any other reason than to strengthen his claim for protection. In these circumstances, the Tribunal is required to disregard the applicant’s claimed attendance at the [Local Church 1] in considering the applicant’s claims for protection.

105.   Having regard to the evidence before it and the concerns of the Tribunal noted above, including the concerns regarding the delay in applying for protection and the Tribunal’s concerns about the applicant’s credibility, the Tribunal makes the following findings:

a.The Tribunal does not accept that the applicant is a devout Christian or grew up in a Christian family, is a member of the local family church or attended local/family church gatherings in China or is a member of a banned evil cult known as the Shouters. It follows that the Tribunal does not accept that the applicant was ever detained on account of his religion or religious beliefs. IT follows that the Tribunal does not accept that the applicant ever proselytised or spoke to others about the benefits of his religion in China or in any way tried to spread the word of God or his religion. It follows further that the Tribunal does not accept that the applicant does not wish to return to China because there are strong chances he will suffer harm and be persecuted on religious grounds.

b.It follows that the Tribunal does not accept that the applicant did not apply for protection when he first came to Australia in January 2014, because at that stage members of his family had not be harmed or persecuted by the CCP.

c.The Tribunal does not accept that his wife was arrested for attending illegal house activities [in] September 2017 and was detained at [Detention Centre 1] for [number] days until [date]. It follows that the Tribunal does not accept that she was ever assaulted, had her hair was pulled, was threatened physically and emotionally, or that she was warned not to attend any future local family church activities to avoid more serious punishment.

d.It follows further that the Tribunal does not accept that if the applicant returns to China he will continue to attend the local family church and accordingly it does not accept that there are strong chances that he will encounter the same problems as his wife and he will be arrested and detained by the Chinese authorities for practicing his beliefs.

e.It follows further that the applicant’s claim that his wife has not had any trouble since the claimed arrest because she practices her religion in secret falls away.

106.   The Tribunal has considered the country information about the increased action taken by Chinese authorities against Christians and the sinicisation program as well as the articles provided by the applicant on action taken against the Shouters. However, given the above findings about the applicant’s credibility the Tribunal does not accept that this would apply to the applicant.

107.   On the basis of the above findings, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm for any of the claimed nexus reasons outlined in s 5J(1)(a) or any other reason, written or oral, if he were to return to China now or in the foreseeable future.

108.   Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution if he returns to China for any reasons referenced in s 5J(1)(a) as required by s 36(2)(a).

109.   The Tribunal is not satisfied that the applicant is a refugee in accordance with s 5H(1) of the Act.

110.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary protection

111.   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).

112.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.

113.   The Tribunal has considered whether the applicant’s attendance at the [Local Church 1] would put him at risk of significant harm if he was to be returned to China. There is no evidence before the Tribunal and the applicant has not claimed that the applicant’s attendance at the [Local Church 1] would have come to the attention of the authorities in China or that he has been monitored while in Australia. While the country information suggests that those engaged in political activism overseas may attract the attention of the authorities[25], it does not suggest that failed asylum seekers are targeted merely for having sought asylum.[26] The Tribunal does not accept that merely attending church services in Australia would put him at risk of significant harm. The Tribunal does not accept that he would be of any interest to the Chinese authorities on return to China. While the Tribunal has accepted that he did attend the [Local Church 1] in Australia, the Tribunal has found that his motivation for doing so was to enhance his protection visa claims. As such, the Tribunal does not accept that he would continue to attend church services if he were returned to China in the foreseeable future.

[25] DFAT Country Information Report - China, 22 December 2021 [3.82] –[3.85]

[26] Ibid [5.28]

114.   On the basis of the evidence before it, the Tribunal does not accept that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk applicant will suffer significant harm on the basis of his claims or for any other reason, now or in the foreseeable future.

115.   The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

116.   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

117.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Phoebe Dunn
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.

…