2014066 (Refugee)

[2023] AATA 2446

2014066 (Refugee) [2023] AATA 2446 (18 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Simon Sen Tao (MARN: 1277816)

CASE NUMBER:  2014066

COUNTRY OF REFERENCE:                   China

MEMBER:L. Symons

DATE:18 May 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

The Tribunal has no jurisdiction in relation to the third named applicant.

Statement made on 18 May 2023 at 8:44am

CATCHWORDS

REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Christian – Salvation Army – fear of detention – fear of physical assault – evangelising – church restrictions in China – state protection – decision under review remitted

LEGISLATION

Citizenship Act 2007, s 12
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2; r 1.12

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 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant, who claims to be a citizen of China, first arrived in Australia [in] February 2009 as the holder of a [Student] visa. She departed Australia [in] December 2009 and returned [in] February 2009. Her [Student] visa ceased on 15 March 2010 and she thereafter remained in Australia as an unlawful non-citizen. On 21 November 2014, she was granted a Bridging E visa. She was subsequently granted seven further Bridging E visas. 

3. The second named applicant, who is the spouse of the first named applicant and claims to be a citizen of China, first arrived in Australia [in] January 2008 as the holder of a [Student] visa. His [Student] visa ceased on 15 March 2010 and he thereafter remained in Australia as an unlawful non-citizen. On 21 November 2014, he was granted a Bridging E visa. He was subsequently granted seven further Bridging E visas. 

4. The third named applicant, who is the daughter of the first and second named applicants, was born in Australia [in] 2009. She was a Chinese citizenship at birth. She lived in Australia as an unlawful non-citizen until 21 November 2014 when she was granted a Bridging E visa. She was subsequently granted seven further Bridging E visas. [In] September 2019, she acquired Australian citizenship, pursuant to s.12(1)(b) of the Citizenship Act 2007 (Cth), as she was born in Australia and was ordinarily resident here for the first 10 years after birth. 

5. On 5 December 2014, the first named applicant made an application for Protection visas to the Department of Home Affairs (the Department). She included her then de facto partner (now her spouse) and their daughter in her visa application as members of the same family unit. On 4 September 2015, the delegate refused to grant the visas as he/she was not satisfied that the applicants were persons in respect of whom Australia had any protection obligations. On 28 September 2015, the applicants applied to the Tribunal for a review of that decision (file number 1513272). The applicants were represented in relation to the review by their registered migration agent.

6. The first named applicant appeared before the Tribunal (differently constituted) on 12 February 2018 to give evidence and present arguments. She was assisted by an interpreter in the Mandarin and English languages. On 9 April 2018, the Tribunal affirmed the decision made by the delegate. [In] May 2018, the applicants applied to the Federal Circuit Court for judicial review of this decision. [In] September 2018, the Federal Circuit Court remitted the application by consent to the Tribunal to be determined in accordance with the law. The Court found that the Tribunal’s decision was affected by jurisdictional error as it had failed to consider a letter from the [Position 1] of the Salvation Army in a manner going to its jurisdiction.

7. On 4 March 2020, the Tribunal (file number 1828475) wrote to the applicants and invited them to attend an in person hearing on 16 April 2020 to give evidence and present arguments. On 30 March 2020, the Tribunal wrote to the applicants and informed them that, as a result of the Covid-19 pandemic, the Tribunal had ceased holding in person hearings from 23 March 2020. The letter advised that the review application was considered appropriate for a telephone hearing at the same time and date. On 15 April 2020, the applicants responded to the letter and provided telephone numbers for themselves and proposed witnesses so that a telephone hearing could be conducted.

8. On 16 April 2020, the Tribunal (differently constituted) conducted a telephone hearing. The first named applicant attended the hearing and gave evidence. She also called two witnesses to give evidence. The Tribunal also attempted to contact a third proposed witness who did not answer the telephone call. She was assisted by an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by a registered migration agent. On 20 May 2020, the Tribunal affirmed the decision made by the delegate.  

9. [In] June 2020, the applicants applied to the Federal Circuit Court for judicial review of this decision. [In] September 2020, the Federal Circuit Court remitted the application by consent to the Tribunal to be determined in accordance with the law. The Court found that the Tribunal’s decision was affected by jurisdictional error as it had failed to consider corroborative evidence that was cogent and central to the first named applicant’s claim to fear harm in her home country due to her religion.

10. On 3 June 2022, the Tribunal (file number 2014066) wrote to the applicants and invited them to appear before the Tribunal on 20 July 2022. The first named applicant appeared before the Tribunal on 20 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A], [Witness B] and [Witness C], members of the Salvation Army Church at [Suburb 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

11. The applicants were represented in relation to the review by their registered migration agent, Mr Simon Sen Tao, who attended the hearing.

    RELEVANT LAW

12. The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant 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.

    Refugee criterion

13. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

16. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

17. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

18. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

19. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

20. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

21. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

22. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

23. 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 a protection 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 the applicant 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’).

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

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

    Mandatory considerations

26. 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.

    Member of the same family unit

27. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a de facto partner of the family head and a dependent child.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

28. The first name applicant’s claims, in her application for Protection visas filed on 5 December 2014, are summarised as follows:

    ·She was born on [DOB] at Fuzhou city in Fujian Province in China. She is a Chinese citizen.

    ·She came to Australia [in] February 2008 on a Student visa. Four months later, she met the second named applicant and they began cohabiting in July 2008. She became pregnant soon after and the third name applicant was born [in] 2009.

    ·She was living a happy life but always felt empty and helpless inside and it seemed something was missing from her life. At the end of 2012, she decided to join [Buddhist Group 1]. She did not realise that she had joined Yiguandao also known as Tian Dao. Not long after, she attended an initiation ceremony at the [Buddhist Group 1]. She started to follow Yiguandao formally and attended a range of Tian Dao -related activities.

    ·She has lived in [Suburb 1] since coming to Australia. She often attended the [Store 1] at the shopping centre to buy groceries. She saw disabled people in wheelchairs collecting donations for the poor and for disabled children at the entrance to the [store]. She always wanted to know what institution they belonged to but did not find out due to the language barrier. On one occasion, a middle-aged woman noticed her and asked if there was anything she could do to help. She asked her which charitable organisation the disabled people worked for and how the donations would be spent on the disabled children.

    ·She had a conversation with this woman and was moved by what she told her but also confused. She was motivated to learn more about Christianity and asked her if there was a Salvation Army Church in the area. The woman told her she was a member of the Salvation Army and gave her the address of the local Church. That Sunday she and her daughter went to that church with this woman. She was referred to as [Sister A]. Before the service, the Church offered a one-hour English class to help people from Chinese backgrounds to learn English. After the class, breakfast was served. People were friendly towards each other and humble which made her feel good.

    ·While she was at the Church, her daughter attended Sunday school with other children where she learned the Bible and knew a group of playmates. After studying the Bible for a few weeks, she found out that Yiguandao was opposed to the doctrine of the Bible. After being enlightened by the real God, she decided to cut all connections with Yiguandao and stop going to the Buddhist Centre. After learning the Bible, especially the Gospels, she decided to join the Salvation Army to do charitable work for God and preach the words of the Lord. She is now in training and will join the Salvation Army soon.

    ·On 24 July 1951, the Chinese government banned the Salvation Army. Members of the Salvation Army were forced to join the Three Self Patriotic Church. Anyone who refused were sentenced to 3 years imprisonment. If she returns to China, she will not be able to continue her religious activities as all the Salvation Army churches have been “clamped down” by the Chinese government. If she keeps in touch with her current Church she could be dealt with for espionage if found out. She could be arrested, imprisoned, mentally tortured and physically hurt.

    ·The third named applicant will be incriminated because of her. Many children of Christians are not only restricted in their schooling but also suffer discrimination and humiliation at school and some are even expelled from school.

    ·She cannot join the Three Self Patriotic Church for a number of reasons. There is no real freedom of belief in China especially for Salvation Army members “like us”. If she seeks to practice her religion in accordance with International Human Rights Law, she could be arrested and sentenced. She has sufficient reasons to be afraid of being sent back to China and thinks that the Australian government has the responsibility to protect her “with no excuse”.

29. The second and third named applicants did not make any claims for protection in their own right. They claimed to be members of the same family unit as the first named applicant.

30. The first named applicant attended an interview with the Departmental delegate on 18 August 2015. She was assisted by an interpreter in the Mandarin and English languages. Her registered migration agent was in attendance at the interview. During the interview, she reiterated and expanded on her written claims. She also made a new claim that she has breached China’s Family Planning Laws and will be fined a large sum of money if she returns to China.

31. The first named applicant filed with the Department a Statutory Declaration by herself dated 17 August 2015 in which she stated that she made an error in her Statement of Claims. She stated that she joined Yiguandao in December 2013 and was initiated [in] December 2013. She retrieved their membership cards as proof.

1. The applicants have filed with the Department a number of other documents including the biodata page of the first named applicant’s Chinese passport issued [in] 2007 and valid until [2017], the first name applicant’s NSW Learner Driver Licence, the biodata page of the second named applicant’s Chinese passport issued [in] 2007 and valid until [2017], the biodata page of the second named applicant’s Chinese passport issued [in] 2014 and valid until [2024], the third named applicant’s Birth Certificate which indicates that she was born [in] 2009 at [Suburb 1], NSW, a document written in Chinese with a few words in English which appeared to be in relation to Yiguandao, a Certificate of Recognition dated [in] May 2015 issued to the first named applicant by the Salvation Army, a Statutory Declaration dated 9 August 2015 from [Person A], the biodata page of the Australian passport for [Person A], the NSW Driver’s Licence for [Person A], a letter of support dated 10 August 2015 from [Witness A], a NSW Driver Licence for [Witness A], a Medicare card for [Witness A], a National Seniors Australia card for [Witness A], a Statutory Declaration dated16 August 2015 from [Ms A], a NSW Driver Licence for [Ms A], a Medicare card for [Mr and Ms A], a statement dated 15 August 2015 from [Mr B], a NSW Heavy Vehicle Driver Licence for [Mr B], a Medicare card for [Mr B], a summary of religious activities with the Salvation Army [Suburb 1] engaged in by the first named applicant between 2 November 2014 and 28 July 2015, a brochure titled ‘Articles of War’ issued by the Salvation Army, country information on the Salvation Army in China, an undated letter from the first named applicant to the delegate responding to questions she was asked at the interview

2. The applicants have filed with the Tribunal a number of documents including a copy of the Department’s Decision Record dated 4 September 2015, a statement from the first named applicant dated 8 February 2018, ‘Testimony’ from the first named applicant, a letter of support dated 6 February 2018 from [Ms C], a NSW Driver Licence for [Ms C], the biodata page of the Chinese passport for [Ms C], a letter of support dated 6 February 2018 from [Ms D], the biodata page of the Chinese passport for [Ms D], a NSW Driver Licence for [Ms C], a letter of support dated 30 January 2018 from [Leader A], a letter of support dated 11 February 2018 from [Ms E], a letter dated 14 March 2018 from [Leader B], [Position 1] of the Salvation Army Australia, a letter dated [September] 2019 from the Department to the first named applicant in relation to the conferring of Australian citizenship on the third named applicant, the third name applicant’s Australian Citizenship Certificate dated [September] 2019, a letter of support dated 28 March 2020 from [Mr F], a letter of support dated 16 April 2020 from [Ms G], a number of photographs of the first named applicant evangelising and handing out brochures, a list of supporting letters and a petition, a letter of support dated 10 July 2022 from [Witness A], a letter of support dated 12 July 2022 from [Mr H], a letter of support dated 12 July 2022 from [Witness C], a Photo Card for [Witness C], a Certificate dated 29 November 2020 certifying that the first named applicant had satisfactorily completed leadership training, photographs taken at the leadership training and a letter of support dated 13 July 2022 from [Witness B].

3. On 5 March 2018, the Tribunal received post hearing submission from the applicants’ migration agent with seven annexures. On 9 October 2022, the Tribunal received post hearing submissions from the applicants’ migration agent with fourteen annexures.

   Country of reference/Receiving country

4. The first named applicant and the second named applicant claim to be citizens of China and have provided copies of the biodata pages of their Chinese passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of China. The Tribunal finds that China is the country of reference for the purpose of assessing the first named applicant’s claims for protection under the Refugees Convention. The Tribunal finds that China is the receiving country for the purpose of assessing her claims for protection under the complimentary protection criterion.

   Third country protection

5. There is no evidence before the Tribunal to suggest that the first named applicant has the right to enter and reside in any safe third country for the purpose of s.36(3) of the Act.

   Membership of the same family group

6. The Tribunal accepts that the first named applicant and the second named applicant were married [in] February 2018. The Tribunal finds that the second named applicant is the spouse of the first named applicant. The Tribunal finds that he is a member of the same family unit as the first named applicant.

7. The Tribunal finds that the third named applicant was conferred Australian citizenship [in] September 2019. The first named applicant gave evidence that she wishes to withdraw the application for review in relation to the third named applicant. The Tribunal finds that it has no jurisdiction in relation to the third named applicant.

   Assessment of claims

8. The first named applicant gave evidence that her application for Protection visas was prepared by her migration agent on her instructions which were true and correct. She was satisfied that her visa application is accurate and complete. When asked whether there had been any changes in her personal circumstances since her application for Protection visas was filed in 2014, she responded that there had been a lot of changes.

9. The Tribunal discussed with the first named applicant her claims in relation to her conversion to Christianity and her membership of the Salvation Army. She stated that she was “brought to the Lord” in November 2014 and started believing in the Lord. She became a member of the Salvation Army in 2015 after she had received training. When asked whether the second named applicant is also a member of the Salvation Army, she responded that he attended the classes. One of the requirements for being a member of the Salvation Army is that you cannot drink (alcohol). He drinks (alcohol) so he cannot become a member of the Salvation Army. He is a friend of the Salvation Army.

10. The Tribunal asked the first named applicant what attracted her to the Salvation Army. She responded that when she first attended the Church, she felt warmth and love from members of the Church. She could see the Church and members of the Church helping society, in particular Chinese people. There were English classes and other help available. She saw the Christian Church as an organisation with time to work for the benefit of other people. She thought she would love to be a member of this Church and learn about God’s love.

11. The Tribunal asked the first named applicant how she learnt about Christianity. She responded, through Bible study, Church services and witnessing what was happening at the Church and in the society. When asked what language the Bible study classes were conducted in, she responded English with an interpreter. They have Bible study classes for people who speak Mandarin. When she first attended the Church, the leader was [Leader C]. She was one of the witnesses in the previous hearing. There are some training classes organised by the Church for evangelising. Those classes are conducted in Mandarin. She attended the training in 2020 and was appointed a team leader in 2021. This involved leading new members of the Church to spread the teachings.

12. The first named applicant gave evidence that she has her own copy of the Bible which is in Chinese and English. The Tribunal asked her a number of questions in relation to the Old Testament and the New Testament. She was able to answer them correctly for the most part. When asked what she believes as a Christian, she responded that, as a Christian, she has to first accept the Lord as her Lord and she has to confess that she is a sinner. She was born with a sin and has to rectify that. She has to take the Lord as her leader in her life, follow the lead and try to rectify her sin. She has to spread the good news to other people in the society. She has to gather together with Church members and cultivate her Church experience in the Church environment. She has to build a path to go back to the Lord.

13. The Tribunal asked the first named applicant what she liked about being a member of the [Suburb 1] Church of the Salvation Army. She responded that members of the Church are very friendly. They get together, pray together and grow together. It is her spiritual home that she belongs to. She has formed many friendships in the Church. When asked what arrangements the [Suburb 1] Church put into place during the Covid-19 pandemic and lockdowns, she responded that during lockdown onsite activities were banned. They moved things online and used WeChat, Zoom and blogs. The Ministers of the Church put weekly services on YouTube so they could keep the Church alive. Bible study classes and prayer sessions were held on Zoom. For evangelising, they used WeChat and blogging. The training classes were done on site when allowed and, when not allowed, were held on Zoom.

14. The Tribunal asked the first named applicant whether she had undertaken any evangelical work in Australia. She responded yes and stated that she started doing that a long time ago. On Sundays, they had musical themes at the [named Suburb 1 location]. She attended and handed out pamphlets to people in the area. When they undertook charity activities, she took pamphlets with her and handed them out. She started doing this in 2015 after she joined the Church and received training. The pamphlets were prepared by the leaders of the Church. They contained contact details for the Church, the schedule of activities, the goals and visions of the Church and services at the Church. It says that there needed to bring people from all walks of life and all races to the Church to worship the Lord.

15. The first named applicant gave evidence that the pamphlets were written in English on one side and Chinese on the other. When asked if people read them, she responded that she normally had a chat to people. Some of them were more interested and asked questions and others took pamphlet and walked away. When asked what she chatted about, she responded that all the services were free of charge. The Lord gave them love and they wanted to share that with everyone. They are all sinners and need to turn to God and seek salvation. Some people ask her the time of the service and she gives them the time and the address. Some people attend and some do not.

16. The Tribunal asked the first named applicant whether she did any other evangelical work besides handing out pamphlets. She responded that after she received evangelical training her skills improved. She sometimes invited people to Church and sometimes reached out to families. She used WeChat and Zoom to talk to people. When asked where she found these people, she responded that they have a team and they invite friends or friends of friends to join them and have a chat on Zoom or WeChat. They sometimes telephone the friends first. An invitation is then sent out saying that there is good news to share. If they are interested, they joined the session which takes forty-five minutes to one hour. Each session has a few topics and a team of people who run it. She offered to do a role-play for the Tribunal.

17. The first named applicant gave evidence that they usually ask two questions to work out the beliefs that a person might have. The first question is “if you leave this world tonight with your understanding and beliefs, do you think you can go to heaven?” The second question is “if after you left this world and went to heaven and God asks you why you should be taken in, what would you say?” Based on their answers, they tell the person that going to heaven is a gift and they do not have to pay for a grace. Now that there are no lockdowns and restrictions, they have returned to face-to-face meetings.

18. The Tribunal asked the first named applicant whether her beliefs are important to her and she responded yes. When asked how she practises her beliefs in her personal life, she responded that there are six points. Every day they need to refresh their link to the Lord. The study of the Bible and prayer helps to refresh the link between herself and the Lord. They have to enhance their spiritual life and Church life by spreading good news and bringing more people to the Church. She reads the Bible every day. They also have ongoing Bible study groups in the Church. They also use WeChat. There is a sister in the Church who shares the details of the Bible they are going to talk about through a WeChat link and a YouTube link.

19. The Tribunal asked the first named applicant whether she was aware of what instructions the headquarters of the Salvation Army has given to members of the Salvation Army who live in China. She responded that her understanding is the Salvation Army is a registered charity organisation in China. They can save lives and do charity work but not have a Church. There are Salvation Army members in China. When asked whether she is aware of what instructions the Salvation Army headquarters have given them about how they practise their faith in China, she responded that she does not know too much about it and does not know the instructions given to the leaders or members of the Salvation Army in China.

20. The Tribunal asked the first named applicant what she thought would happen if she returned to China. She responded that she has four points. She fears that if she returns to China she could be detained or put in gaol. Secondly, there are lots of family based in China, particularly in Fujian Province, that have been taken. Thirdly, she is now in the leadership of the Church. If she returns to China, there are more chances of being harmed. In China, it is impossible for them to use online tools like WeChat to spread the good news of the Church to other people. When asked what she meant by being a leader of the Church, she responded that she is one of the team leaders. When asked whether she had told the Tribunal all the reasons why she fears returning to China, she responded yes.

21. The Tribunal has also considered the written evidence provided by the first named applicant to the Tribunal and to the Department.

22. The Tribunal has considered the written and oral evidence of [Witness A]. At the hearing, [Witness A] gave evidence that she is now retired. She used to work as [an occupation 1] and worked in “faith guiding”. She has been a member of the [Suburb 1] Church of the Salvation Army for 50 years. When asked how long she has known the first named applicant ([name] as she is referred to), she responded that she came to the Church around 2014 and she has known her since then. They see each other every week at Church and she knows her fairly well. They have been on several outings together when they took members of the Church on holidays. The first named applicant organised those holidays.

23. The Tribunal asked [Witness A] in what language the services at the [Suburb 1] Church are held. She responded in English with a Mandarin “translator”. When asked in what language Bible study classes are held, she responded that some are in Mandarin and some are in English. The first named applicant has been part of both, but mainly in Mandarin. During the Covid-19 pandemic and the lockdowns, they moved online and sent out links every week. The Salvation Army Church in [Suburb 1] is part of a hub of [number] Salvation Army Churches being [suburbs listed including Suburb 1]. During Covid-19 pandemic, [one of these churches] held the Evangelism Explosion course and Bible study classes. Some of these courses were face to face and some were online through WeChat with materials they had to study and work to do. They had some Zoom meetings as well. Because it was conducted in Mandarin, she was not part of that.

24. The Tribunal asked [Witness A] whether she has personal knowledge of the Church related activities that the first named applicant has been involved in. She responded yes. She has been doing odd jobs and “translating” for Mandarin clients at the [Centre 1], which is the welfare part of the Salvation Army’s presence in [Suburb 1]. She sometimes assisted during outings for Chinese speakers prior to the Covid pandemic. She also does a daily devotion which is a Bible reading and some explanation that she puts up every day on WeChat for Chinese speakers. She has been involved with the Red Shield appeal every year. She attends every Sunday for worship and any other Church activities. She used to assist the Church Treasurer to look after some financial matters. She attends an online Bible study class on Friday nights which is conducted through WeChat. She is also on the Church Leadership Team which is a small group of people representing their congregation. They have an [different cultural] group and a Chinese group and she is the representative of the Chinese group. The Leadership Team discusses what is happening in the Church and the representatives relay that information to their groups.  

25. The Tribunal asked [Witness A] whether the first named applicant has been involved in any evangelical activities. She responded that she was not able to do much during the Covid pandemic. Prior to that, she was with the band near the market and handed out literature at the market. She did an evangelism course conducted in Mandarin and receive intense evangelism training. Part of that course was to talk to other people who are not involved in the Church about their faith and spiritual wellbeing. The Salvation Army is “highly evangelistic”. Members serve by helping others and spreading the Bible to others. The Church is part of the Protestant Church and is at one end of the evangelical scale.

26. The Tribunal asked [Witness A] whether the first named applicant has been involved in any other evangelical activities besides handing out literature. She responded that she talks to people. She is not with her all the time. Because of the Covid pandemic they did not have any other evangelical activities. When she is at the [Centre 1] people come in needing assistance and she has observed her talking to other people. Part of that is talking to people about their spiritual wellbeing. She has not been at the [Centre 1] for the last twelve months.

27. The Tribunal referred to [Witness A’s] last statement in which she stated that the first named applicant used WeChat and asked her how she used WeChat. She responded that the Church has a couple of groups for the Chinese congregation. They use WeChat for daily Bible study. There is another group for Chinese speakers from other Churches. They use WeChat for notes, meetings and links to Zoom meetings and use it for communication about Church events. It is an integral part of the Chinese community. When evangelising they look for people on WeChat who are not members of the Church.

28. The Tribunal asked [Witness A] whether there are members of the Salvation Army in China. She responded no. She only knows what she has read on the international website of the Salvation Army. From what she has read, at one point the Church tried to get a statement from international headquarters. That was difficult because the Salvation Army used to have many Churches in China but they were closed down. The Salvation Army is not allowed to have a Church in China now. They can operate for disaster relief and welfare. It is operated out of Hong Kong with oversight from international headquarters. The Salvation Army is not able to give them a statement or anything to say that they cannot have a Church in China. The international website says the Salvation Army has a presence in China. She has seen photographs of disaster relief in China on the international Facebook page. She cannot remember what the disaster was but thinks it was an earthquake. The Salvation Army sent in a team. That is the only sort of thing that they can do. 

1. The Tribunal asked [Witness A] what, in her opinion, attracted the first named applicant to the Salvation Army. She responded that they have an active kind of place. The congregation does not come in and sit down. They become part of people’s lives. There is always an opportunity to do something to help people such as getting involved with the older people in the Church and helping them. The Salvation Army is a happy place to be. It is a family place. People are accepted and encouraged to develop. They are given a sense of belonging and an opportunity to serve God and the community.

2. [Witness A] stated that they are fearful for the first named applicant’s wellbeing should she be sent back to China. She has a pleasant, happy disposition. She is emotionally stable with the supports they can give her. Her spirituality is tied to her emotional wellbeing. They are aware of how important that is. They support her stay and her being granted a visa. She knows that her daughter is not a part of this application as she was born in Australia. Her daughter does not know China. It would impact on her and the wellbeing of her family.

3. The Tribunal has considered the written and oral evidence of [Witness C]. At the hearing, she gave evidence that she started attending the Salvation Army Church in 2013. She met the first named applicant in 2014. She was very active in Church activities. She helped with the financial part of the Church. She worked as a volunteer in the charity part of the Church and still does. She works in a team. She uses social media. She has worked with her in relation to some of these activities and has observed her doing some of the other activities. Since 2021, she and the first named applicant have been involved in training sessions to teach people how to evangelise. In terms of the religious side of things, she is the example for them to look up to. She knows the second named applicant and the third named applicant.

4. [Witness C] stated that she and the first named applicant evangelise together. They have undertaken a training session to improve their skills. When asked what evangelical activities they have done together, she responded that, if they have a lead, they go out together to have a chat with that person and spread the Word of the Church. They did similar activities on Zoom and WeChat during the lockdowns during the Covid pandemic. If they found someone who was interested in the Church, they have a team that creates “an agenda” and they have sessions to teach the person about the Church.

5. The Tribunal asked [Witness C] whether she is aware of whether the first name applicant has done any other evangelical work. She responded that they undertook evangelism training sessions in 2020. They often work together as a team to spread the teachings of the Church. She is sure that she does this with neighbours or her friends. She is one of the team leaders, helps new members of the Church and takes them out to preach. When asked where she preaches, she responded that it depends on the person. If convenient, they invite people to come to Church. If not convenient, they do it on WeChat or Zoom. She maintains good links with these people and shares the love of the Church with these people.

6. The Tribunal has considered the written and oral evidence of [Witness B]. During the hearing, [Witness B] gave evidence that he has known the first named applicant since Christmas 2014 and knows her quite well. They communicate in English. He sees her at Church every Sunday. She is on the planning committee of the Church. Her daughter plays in the band. She is involved in the Church leadership team. She used to help the financing section of the Church. She is involved in street ministry with the band. She talks to Chinese Australians. She volunteers at the Welfare Centre. She translates the newsletter from English to Mandarin. She participates in WeChat Bible reading each week. WeChat is also used for prayer sessions for the Mandarin speaking community. She mentors new Christians. She attends Church each Sunday. She is involved in evangelical activities.  

7. The Tribunal asked [Witness B] what evangelical activities the first named applicant has been involved in since the Covid pandemic restrictions have been lifted. He responded that she is on the planning team. Last night they agreed on a community Sunday School outreach. She is involved in the community music. She is also involved in the Evangelism Explosion program. She talks to non-Christians about their faith. She is still on the leadership team. She still goes on WeChat. She still does the translation of the newsletter. She still volunteers at the welfare centre. As far as he is aware, she is not doing the finances now. They have other people who do that. Not much has changed since they have returned from the Covid pandemic restrictions as far as evangelical services are concerned.

8. [Witness B] gave evidence that he is [an occupation 2] and works internationally. The Tribunal noted that in his written evidence he referred to doing some work in China a couple of years ago. He responded that he worked in Shandong Province 2 years ago. When asked whether he was aware of whether there are any members of the Salvation Army in China, he responded that he is not aware of that personally. When the Salvation Army was in Hong Kong under the British system, he knew a few Salvationists. He does not know of any in mainland China.

9. The Tribunal asked [Witness B] whether he was aware of what the instructions from headquarters of the Salvation Army are in relation to how members practise their faith in China. He responded that the Salvation Army does not do any evangelistic work in China. There are banned from doing evangelistic work in China. They can only do welfare work. He used to be a member of the international Salvation Army Aid Committee. They would only give money for water-based projects. They were not allowed to give witness to their faith and they were very strict about this. The Salvation Army is an evangelistic Church. It can only carry out a part of its work in China. They are supposed to preach the Gospel to everyone they meet. That is their Charter. In China, they are restricted on what they can do.

10. The Tribunal asked [Witness B] what, in his opinion, attracted the first named applicant to the Salvation Army. He responded that he understands that she had tried other religions prior to the Salvation Army. She has freedom of worship. Their services are very Pentecostal, outgoing and warm. The people are loving people. They have members of the Chinese community and the [different cultural] community as part of their community. They are a Church family and witness together in the community. They work together to spread the Gospel as they are told to. They are told to love everyone and not judge and bring everyone to Christ. There is a loving aspect and an evangelistic aspect.

11. The Tribunal asked [Witness B] whether he had considered that there may be other factors, outside of faith, motivating the first named applicant to join and continue being involved in the Church. He responded probably not. In 2014, she was only a young girl and a mother. She was seeking something she did not have. She was seeking spiritual wellbeing. Because the Salvation Army has a loving community and care for each other, she found the teaching of Jesus. She just became deeply involved in the Church.

12. [Witness B] stated that he has firsthand experience of China. He has worked on civil projects in China. He has worked in Kunming near the Lao border. When he was in Shandong Province in January and February 2020 doing water projects, he was not not aware of President Xi’s and the Chinese Communist Party’s passing of legislation in 2018 and in 2020. Crosses have been taken off Churches. There is persecution of evangelistic Christians. They are not allowed to preach the Gospel. Apple has removed the Bible App in China. Children are encouraged to renounce their faith. The third named applicant knowns nothing about Christian faith other than the Salvation Army. She will be forced to renounce her faith. People are paid to identify the Christians. It is not safe for the first named applicant and her daughter. He is concerned about the first named applicant losing her ability to practise her faith. The Salvation Army’s instructions to all nations are to preach the Gospel and that is what they do.

13. The Tribunal has considered the written evidence given by [Mr H] in his statement dated 12 July 2022. He stated that the first named applicant participated in the Evangelism Explosion training from September to November 2020 which was jointly conducted by the Salvation Army [groups in specified locations]. She completed the training course, fulfilled all the requirements and received a graduation certificate from [an international group]. In 2021, she led a team of three people as team captain during the 2021 Evangelism Explosion training. She has been actively involved in evangelism training, online and in person outreach.

14. The Tribunal has considered the written evidence given by [Ms G] (known as [name]) in her statement dated 16 April 2020. She stated that she joined the Salvation Army Church at [Suburb 1] at the end of 2016 and officially became a soldier of the Salvation Army in February 2018. She got to know the first named applicant soon after she joined the Church. The first named applicant is a Church leadership member and a group leader of the congregants with Chinese backgrounds. As she was a Christian in China, prior to coming to Australia, she was fully aware of the importance of evangelism.

15. [Ms G] started that she proactively engaged in evangelical activities with the first named applicant. Every Sunday morning from 9.00am to 9.45am they gather outside the [Suburb 1 location] with the Salvation Army orchestra. They spread the Gospel to shoppers and pedestrians by distributing leaflets related to the Good News. They also, together or individually, preach the Gospel to shoppers inside the shopping centre during their leisure time. The first named applicant takes her to the primary school that her daughter attends and they evangelise the Chinese speaking parents.

16. [Ms G] started that their Church members have witnessed the first named applicant’s commitment to serving God. After the previous Presiding member (of the Tribunal) affirmed the decision made by the delegate of the Minister in 2018, that did not affect her commitment and devotion to serving God. She has no reason to suspect that the first named applicant has any ulterior motive other than serving the Lord.

17. The Tribunal has considered the written evidence given by [Mr F] in his statement dated 28 March 2020. [Mr F] stated that the first named applicant has been a vital member of the Salvation Army in [Suburb 1] for a number of years as a full-time member of their Church, a volunteer at their Community Service Centre, a member of the Chinese Ministry Leadership Team and, more recently, as a member of the [leadership] Team of the whole Church. Her involvement at [Suburb 1] includes providing written translation of their weekly newsletter and other written correspondence with their Chinese community, assistance at their Community Centre providing relief for those experiencing hardship, leading the Chinese Ministry Fellowship, supporting their [administrative] Team with the weekly banking and financial records as well as providing wisdom and insight for the Leadership Team trying to connect with their local multi-ethnic community. She does all of this as a volunteer. Her Christian faith is her motivation.

18. [Mr F] stated that their Church and community are better for the first named applicant’s presence and ministry among them. Unfortunately, the same ministry is not possible in mainland China where the Salvation Army in unable to participate as a Christian Church and Christians are restricted to only the official State-run Church whose confession is quite different to that of Salvationists.

19. The Tribunal has considered the written evidence given by [Leader B] in his statement dated 14 March 2018. He stated that he is the [Position 1] of the Salvation Army Australia. As [Leader A], their Corps Officer in [Suburb 1] correctly pointed out in his letter, the Salvation Army will never order its ordained soldiers or members to attend a specific Church for evangelical and missionary work. After taking into account the feedback received from [a named church leader from] Hong Kong and Macau, and carefully considering the overall country information and evidence before them, they have formed the view that there is limited freedom of religious practice in mainland China and the Chinese Communist Party tightly controls what can be taught and practised in and outside the Church. If the first named applicant, a committed Salvation Army soldier and a fervent Christian, carried out the same level of practice as she does in Australia, not only would she be in trouble with the government, but she would also incriminate her family.

20. The Tribunal has considered the written evidence given by [Leader A] in his statement dated 30 January 2018. [Leader A] stated that he has been one of the commanding officers in the Salvation Army [Suburb 1] since January 2017. The Salvation Army [Suburb 1] is a multicultural Christian Church with members and worshippers from all cultures and backgrounds. The Chinese Ministry is growing fast in both numbers and spiritual connection with God. There are a number of strong leaders in this ministry who have been working hard to build the Kingdom of God. The first named applicant is one of the devoted leaders in this ministry.

21. [Leader A] stated that he has got to know the first named applicant personally through her service in the Church where she has many different roles. She is a member of the Church’s Leadership Team and an integral part of the Chinese Ministry Leadership Team. In this ministry, she leads the Bible study on Sunday afternoons, helps to organise the monthly fellowship and translates Sunday’s sermons. She openly testifies of her own transformation from a non-believer to a committed Christian through the grace of God. Not only is she involved with the Chinese Ministry, but she also cheerfully contributes her time to assist different ministries in the Church including the [administrative team], Welfare Centre, children’s ministry, translation assistance etc. She always has a smile on her face, is pleasant to all and undertakes her responsibilities with enthusiasm.

22. [Leader A] stated that in the short time that he has known the first named applicant he has no hesitation in saying her faith in the Lord Jesus is genuine and true. She tries at every opportunity to learn God’s words and to put what she has learnt into action by serving God, preaching God’s words and sharing God’s love with others. She is one of the most active members in their Church. He has also got to know her husband and daughter. Like her, they are popular members of the Church, regularly attend meetings and support the Church’s events and activities.

23. The Tribunal has considered the written evidence given by [Ms E] in her statement dated 11 February 2018. [Ms E] stated that she has been a member of the [Suburb 1] Salvation Army Church for 19 years and was previously a member of the Salvation Army in [Country 1]. She now manages the Salvation Army Community Welfare Centre in [Suburb 1] and has done so since 2014. She met the first named applicant when she first came to the Salvation Army Church at [Suburb 1] in 2014.

24. [Ms E] stated that the Church has changed over the last 8 years growing to become a culturally diverse Church which they like to call a Church of All Nations. It is one of the most moving moments to stand back on a Sunday morning and look around at the different flags from the many countries they all come from and yet are all together in the same room as one family. Their Chinese community has grown significantly and the first named applicant is a huge part of that. She translates the Sunday morning meetings into Mandarin, runs Chinese Bible study, translates the weekly newsletter into Mandarin, assists in their weekly accounts and at reception in the Community Welfare Centre two days a week. She has been a large part of leading others to Christ. She is one of the most beautiful people she has met with much to offer the Salvation Army and their community. She is supportive, caring and kind to everyone of all cultures and ages.

25. [Ms E] stated that the first named applicant has volunteered in the Community Welfare Centre for 3 years and is a valuable part of the team. She believes in the foundations of the Salvation Army being the Christian principle of ‘Heart to God and a Hand to Man’. She shows up always smiling and willing to help others. She has watched her grow in many ways. Her verbal and written English have improved dramatically. She is of value to their community and has played a large role in assisting those in need within their community. There have been many occasions when she has needed to sit in on an assessment to help ”translate”. She has assisted her in translating Court documents for women who have been through serious domestic violence and have no written or verbal English language skills. She assists in gathering information to contact case officers, lawyers, shelters, English classes, services so that clients can leave with a smile of hope and greater knowledge. She has assisted her in translating government electricity assessments and helped to encourage those who were embarrassed and unable to feel at ease.

26. [Ms E] stated that over time she has watched the first named applicant and her family. She has witnessed her teaching Christian principles to her daughter and discussing the Bible. She has concerns for her daughter if the family does not get approval to stay in Australia. Having worked in community services, she has seen the impact firsthand on children when there is drastic environmental/cultural change. The impact on her daughter being taken from an environment she has known would cause lasting damage for her as an individual. She was born here and, in her eyes, is an Australian with Chinese parents. This has been her home all her life.

27. The Tribunal has considered the written evidence given by [Ms C] in her statement dated 6 February 2018. [Ms C] stated that she first attended the Salvation Army Church at [Suburb 1] in 2011 and since then has been involved in a range of Church activities to evangelise and care for the poor and homeless. Recently, due to family and work commitments, her engagement in Church services have been less frequent. She first met the first named applicant at the end of October 2014 near the entrance to [Store 1] at the [Suburb 1] shopping centre. They were raising donations for the poor and disabled children. She walked up to her and asked about her organisation. She gave her a rundown of how the Salvation Army was formed, made her aware of the nature of their Christian organisation and their main goal to spread the Gospel and the love of Jesus. Before she left, she gave her the address of the Salvation Army [Suburb 1] Church and invited her to join them.

28. [Ms C] stated that the first named applicant and her daughter attended their Church on the following week. From that time onwards, the first named applicant has gradually become a Salvation Army officer and a committed follower of Jesus Christ. With her consent, she read her Statement of Claims, in particular the part where she came to join their Church, and can say with certainty that her account is true, accurate and consistent with her recollections.

29. The Tribunal has considered the written evidence given by [Ms D] in her statement dated 6 February 2018. [Ms C] stated that she met the first named applicant and her daughter in early November 2014. Soon after, the second named applicant also came to the Church. Since the first day, the first name applicant has attended all meetings and activities including Sunday meetings, Bible studies and various fellowships. She has witnessed her spiritual growth in Christ. She has now become one of the members in the Leadership Team of the Chinese Ministry. She tells people about the Good News. She has given testimony in Church meetings and Bible studies, giving praise and glory to God.

1. [Ms C] stated that thirty percent of the members of the Church are Chinese and many materials need to be translated. Every week the first named applicant helps to translate the newsletter. During the meeting, she helps to “translate” the sermon. Since last year, she has led the Chinese Bible study. She helps at the Welfare Centre twice a week and helps the Church’s [administrative team]. She also helps with Sunday School. Recently forty people from the Chinese Ministry went [interstate] for four days and she took responsibility to organise the bus, activities etc. From the above it can be seen that she is a genuine Christian. She does not only learn about her faith but practices her faith in Christ. In their Church, she is one of the important people and has had a great impact on many members in the Church. They need her and their Church needs her.

2. The Tribunal has considered the letters of support provided by the first named applicant to the Department including a Statutory Declaration dated 9 August 2015 from [Person A], a Statutory Declaration dated16 August 2015 from [Ms A] and a statement dated 15 August 2015 from [Mr B]. The Tribunal has had regard to the photographs provided by the first named applicant to the Department and the Tribunal which depict her participating in various Church related activities.

3. The Tribunal has considered the written and oral submissions made by the applicants’ migration agent.

   Country information

4. The first named applicant provided the Department with a document titled ‘Salvation Army – China Development Brief’. It provides a brief history of the Salvation Army and its presence in Hong Kong, Macau and mainland China. It indicates that in mainland China the Salvation Army currently operates in three main areas being education programs for children and youth in China, community development and disaster relief and rehabilitation.

5. The Department of Foreign Affairs and Trade (DFAT) reports that:

   China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestantism. Daoism, Buddhism and Confucianism (which while not an official religion has had significant influence on Chinese culture) have an ancient presence that has long shaped Chinese culture. The 2020 US Department of State International Religious Freedom Report on China estimates that 52.2 per cent of the population are unaffiliated with any religion, 21.9 per cent practice traditional folk religion, 18.2 per cent are Buddhist, 5.1 per cent are Christian and 1.8 per cent are Muslim….

   Under Xi Jinping, China has introduced a renewed campaign to ‘sanitise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power. The 2018 Regulations on Religious Affairs contain broadly worded prohibitions against the use of religion to ‘split the country’, ‘undermine ethnic unity’ or ‘engage in terrorist activities’. Although centrally organised, the situation for religions varies from place to place and is influenced by the actions and motivations of local authorities.

   Professor Fenggang Yang of Purdue University describes religious groups as operating in a ‘red’, ‘grey’ or ‘black’ market. The red market groups are the officially sanctioned churches, such as the ‘patriotic associations’, the name used for officially sanctioned organisations that represent the five recognised religions. Grey markets include unofficial but tolerated (to a degree) religious gatherings. Black markets include underground movements and xie jiao. Some home congregations were originally in the black market but moved to the grey market with increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.

   Regulations prohibiting proselytising are generally enforced across China and religious education for those under 18 years is not permitted, but according to the 2020 US Department of State International Religious Freedom report on China enforcement of this rule varies from place to place. In recent years, the number of foreign religious workers and foreign NGOs working in areas with a rights and religious focus appears to have decreased significantly.

   Overall, an individual’s ability to practise religion depends on whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.[1]

   [1] DFAT Country Information Report on China dated 22 December 2021.

6. An article in a Salvation Army publication Others reported that in September 2017 the Salvation Army was given “permission to partner with local congregations in religious activities” at the invitation of Provincial Christian Councils in the cities of Kunming in Yunnan Province and Chengdu in Sichuan Province. Whilst this was in advance and not being able to operate it all in China, it falls short of permission to operate freely as a registered Church in China.[2]

   Other considerations

   [2] China:CI180207173034422 – Salvation Army, Standard Q&A Report, Department of Home Affairs, page 2, 9 February 2018.

7. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility in assessing the first named applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

Findings

1. Having considered the first named applicant’s claims, all the evidence and the submissions, the Tribunal finds that the first named applicant was born on [DOB] at Fuzhou city in Fujian Province in China. The Tribunal finds that the second named applicant was born on [DOB] in China. The Tribunal finds that the third named applicant is the daughter of the first named applicant and the second named applicant and was born in Australia [in] 2009. The Tribunal finds that the first named applicant and the second named applicant were married in Australia [in] February 2018. The Tribunal accepts that the first named applicant and the second named applicant travelled to Australia as the holders of Student visas but have not completed any studies in Australia. The Tribunal does not accept that they have not worked in Australia since 2014 and have been financially supported by their respective parents since then.

2. The Tribunal accepts that the first named applicant first attended the Salvation Army Church at [Suburb 1] in November 2014 and that she was accompanied by the third named applicant. The Tribunal has concerns about her motivation for doing so as she was a Yi Guan Dao practitioner at the time. However, the Tribunal accepts that since then she has attended Church each week, participated in Bible study classes and undertaken training. The Tribunal accepts that she formally became a member of the Salvation Army in 2015. The Tribunal accepts that, in addition to the above, she has engaged in evangelical activities, volunteered at the Community Welfare Centre, assisted the [administrative team], translated the weekly newsletter into Mandarin, participated in fund raising, acted as an informal interpreter, assisted with Sunday School and other Church-related activities.

3. The Tribunal accepts that in more recent times the first named applicant has completed an Evangelism Explosion course in 2020, helps to train new members to evangelise, is involved in online activities such as Bible study, posting daily devotions on WeChat, attending online Bible study classes on Friday nights and has taken on leadership roles such as mentoring new members of the Church, being the representative of the members from the Chinese group on the Leadership Team and being on the planning committee of the Leadership Team. The Tribunal accepts that during the Covid pandemic restrictions she participated in online Church related activities such as Bible study, prayer meetings and evangelising using platforms such as WeChat and Zoom. The Tribunal accepts that she evangelises in person and online.

4. The Tribunal accepts that over the years the first named applicant has genuinely converted to Christianity. When giving evidence, she displayed the fervour and zeal of a true convert. The Tribunal has placed considerable weight on the extent of her involvement with the Salvation Army Church in [Suburb 1] over a long period of time and her elevation to leadership roles within the Church. The Tribunal is of the view that it is an indication of her commitment to her faith and the practise of her beliefs. The Tribunal accepts that evangelising is a fundamental aspect of her beliefs and how she practises those beliefs. The Tribunal accepts that if she returns to China, now or in the foreseeable future, she will continue to practise her Christian beliefs.

100.   The Tribunal accepts the evidence of [Witness A], who has been a member of the Salvation Army Church at [Suburb 1] for 50 years, that the Salvation Army is “highly evangelistic” and members serve by helping others and spreading the Bible to others. The Tribunal accepts the evidence of [Witness B] that the Salvation Army is an evangelistic Church and members are supposed to preach the Gospel to everyone they meet. The Tribunal accepts that evangelising is an innate part of the beliefs of a member of the Salvation Army. 

101.   The Tribunal accepts that [Witness B] used to be a member of the international Salvation Army Aid Committee, has worked on projects in China and has firsthand experience of the situation in China. The Tribunal accepts his evidence that the Salvation Army can only do welfare work in China, is banned from proselytising in China and does not do any evangelistic work in China. This is consistent with the evidence given by [Mr F] and [Leader B] who stated that there is limited freedom of religious practice in mainland China and the Chinese Communist Party maintains tight control over what is taught and practised. His view is that, as a committed Salvation Army soldier and a fervent Christian, if the first named applicant carried out the same level of practice as she does in Australia not only would she be in trouble with the government but would also incriminate her family.

102.   The country information referred to above indicates that there is legislation in China that prohibits proselytising. DFAT reports that regulations prohibiting proselytising are generally enforced across China.

103.   In view of the above, the Tribunal is satisfied that the first named applicant fears being persecuted for reason of her religion and that it is the essential and significant reason for the persecution feared. The Tribunal is satisfied that the persecution she fears involves serious harm to her and systematic and discriminatory conduct. The Tribunal is satisfied that there is a real chance that she would be persecuted by the Chinese government, including being subjected to significant physical harassment and ill treatment, for reason of her religion if she returns to China now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that she has a well-founded fear of persecution for reason of her religion if she returns to China now or in the reasonably foreseeable future.  

104. The Tribunal finds that the first named applicant is outside her country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of that country. There is no evidence before the Tribunal to indicate that she has a right to enter and reside in any other country other than her country of nationality. Therefore, the Tribunal is satisfied that she is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal finds that she satisfies the criterion set out in s 36(2)(a) of the Act.

105.   Given these findings, the Tribunal does not consider it necessary to assess the other claims made by the first named applicant.

106.   The Tribunal accepts that the second named applicant is a “friend of the Salvation Army” but is not formally a member of the Salvation Army. He has not made any claims in his own right. He has claimed to be a member of the same family unit as the first named applicant and the Tribunal has found accordingly.  

CONCLUSION

107. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. The Tribunal finds that she satisfies the criterion set out in s 36(2)(a) of the Act.

108. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa) of the Act. However, the Tribunal is satisfied that he is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a Protection visa provided the criterion in s 36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.

DECISION

109.   The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the first named applicant.

110.   The Tribunal has no jurisdiction in relation to the third named applicant.

L. Symons

Member