2015422 (Refugee) - [2024] ARTA 810

2015422 (REFUGEE) [2024] ARTA 810 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015422
Tribunal:General Member C Dutkowski
Date:10 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

CATCHWORDS
REFUGEE – protection visa – China – fear of harm from local official’s son – contentions about workplace and money – harassed, beaten and threatened – vague, inconsistent and unconvincing claims and evidence – identity of official’s son and circumstances of interactions – new claim on ground of religion – underground Christian – activities in home country and Australia – reported to village committee by neighbours – started attending current church at time of invitation to tribunal hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 378
Migration Regulations 1994 (Cth), Schedule 2

CASE
Wang v MIMA (2000) 105 FCR 548
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of China, applied for the visa on 5 December 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the refugee or complementary protection criteria in the Act. In particular, the delegate did not accept the applicant’s claims to have reported corrupt conduct and suffered harm and threats as a result.
The applicant appeared before the Tribunal on 27 November 2024 and 4 December 2024. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is a [Age]-year-old man from Muchuan, Sichuan Province. His mother, father, ex-wife, son and younger brother reside in the applicant’s hometown in China. His older sister and brother live in a nearby village in the same town. The applicant’s siblings are all farmers.
After the applicant completed high school in [Year], he worked in a factory in [Location] for a couple of years, before moving to Hunan Province where he learned to make [product] from a friend and worked in his [workplace 1]. In 2016, he moved to Guangxi and opened his own [workplace 1].
The applicant entered Australia [in] September 2017 as the holder of a visitor visa. He applied for a protection visa on 5 December 2017.
The applicant initially worked some casual [job task] jobs in Melbourne, then moved to work on a [workplace 2] near the Blue Mountains. Three years ago, he moved to Sydney, where he has been doing [work sector] work.
Evidence before the Department
In his protection visa application, the applicant stated that he left China because he offended the high official’s son and the high official’s son wants to kill him. He claimed the high official’s son found someone to kill him and that he tried to relocate to another part of China but they still found him. He said the authorities would not protect him as they use money to buy people to do things.
On 1 September 2020, the delegate invited the applicant to provide additional information and supporting documents relating to his claims, such as details about the person he offended and how he offended them, details about the threats of harm and copies of any letters sent to officials about the matter. In a response dated 9 September 2020, the applicant stated that he applied for protection because from 2016 to May 2017, he cooperated with [Mr A], the godson of Director [Mr B] of the [Public office] in Guangxi Province. The money earned was used by the godson to open an underground casino. The applicant was angry and reported him. Before the godson was arrested, he found someone to beat the applicant and threatened to take his life after being released from prison.
The delegate refused to grant the visa on 15 October 2020.
Evidence before the Tribunal
The applicant applied for review of the decision on 16 October 2020.
On 26 November 2021, the applicant was invited to a hearing by video-conference on 13 December 2021. On 6 December 2021, this hearing was rescheduled for an in-person hearing in Melbourne on 14 December 2021 because the applicant indicated he did not have the appropriate technology to participate by video-conference. On 9 December 2021, the applicant requested the hearing be postponed as he had moved from Victoria to regional NSW. The Tribunal (then constituted) agreed to postpone the hearing. The matter was transferred to Sydney and reconstituted to this Tribunal in October 2024.
The applicant first appeared before the presently constituted Tribunal on 27 November 2024. At this hearing, the applicant indicated that he had recently obtained a lawyer, named [Mr C]. He did not have any other details about [Mr C], such as his firm’s name. The applicant had not otherwise previously advised the Tribunal that he had a representative. The Tribunal sought to understand whether the applicant was happy to proceed in the absence of his lawyer, and the applicant indicated he was happy to because it was not the final hearing. The Tribunal sought to obtain a contact number for the lawyer, but the applicant conveyed that the lawyer indicated they were not willing to provide one to the Tribunal. In addition, the Tribunal indicated that it had received some emails from a gmail address which purported to be sent by the applicant. The applicant said he was unaware of that email address and guessed it may have been used by his lawyer. The Tribunal clarified the applicant’s yahoo email address and confirmed he wished to use this yahoo email address for future correspondence.
In fairness to the applicant, who seemed confused about the nature of the hearing, the Tribunal adjourned for a week, and asked the applicant to provide information and contact details for his representative before the resumed hearing.
The hearing resumed on 4 December 2024. By this date, the applicant had not provided any further information to the Tribunal about his representative. The applicant told the Tribunal that he did not have a representative anymore because he didn’t want [Mr C] to represent him and [Mr C] had refunded the applicant his money. The Tribunal is satisfied the applicant understood the purpose of the hearing and was given a reasonable and meaningful opportunity to present his case, make submissions and provide evidence.
During the resumed hearing, the applicant raised new claims that he had been a Christian for a long time, and that he had recently joined the Church of Almighty God. The applicant also indicated in oral evidence that his claim to have offended a high official’s son was related to [workplace 1] that he owned. In essence, the applicant claimed that the high official’s son had sought to be a shareholder in the [workplace 1] and had also sought to borrow money from the applicant to fund his gambling addiction. The applicant refused and was subject to retaliation from the high official’s son and the high official himself, which culminated in the applicant’s [workplace 1] closing four months after it opened and the applicant fleeing and hiding.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Based on the applicant’s Chinese passport, the Tribunal accepts that the applicant is a national of China and considers China is the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria.
The Tribunal accepts the applicant’s oral evidence concerning his family and work history, as set out above in the background to this decision. Although the applicant had not mentioned a [workplace 1] in his visa application or communication with the delegate (nor was information provided about his work history at all), the Tribunal accepts that the applicant ran a [workplace 1]. When the Tribunal questioned the applicant about the [workplace 1], he answered clearly, in detail, and without hesitation. For instance, he described what was sold there, what the [workplace 1] was called, what the opening hours were, how many customers he could fit in the [workplace 1], how many staff he had, what profit he made, and explained that he opened his own [workplace 1] because he could never make much money working for others.
However, the Tribunal does not accept the applicant’s claims that his [workplace 1] shut down following his interactions with a high official and his son. More broadly, the Tribunal does not accept the applicant’s claims about the harm he faced in China and the harm he fears if he were to return, either on the basis of offending a high official and his son for any reason, or on the basis of his religion claims. Except for the applicant’s evidence about owning a [workplace 1] outlined above, the Tribunal found the applicant’s evidence to be shifting, vague, inconsistent with his claims to the Department, as well as internally inconsistent during the hearing in relation to key events.
Claim to have offended the son of a high official
The applicant’s visa application contained brief sentences about having offended ‘the high official’s son’ and that someone would come to kill him. When the delegate requested more information from the applicant, he said in an email sent 9 September 2020 that from 2016 to May 2017, he cooperated with [Mr A], the godson of Director [Mr B] of the [Public office] in Guangxi Province. The money earned was used by [Mr A] to open an underground casino and the applicant was angry and reported him. Before [Mr A] was arrested, he found someone to beat the applicant and threatened to take his life after being released from prison.
The applicant’s oral evidence was significantly different. The applicant said that when he opened his [workplace 1] in 2016, he offended a high ranking official and his son and there were some conflicts. He was attacked and they assaulted him verbally and physically and harassed the running of the business. The high official’s name is [Mr D], Director of the [Public office], in charge of the [workplace 1] industry. The applicant said he was not sure of the son’s name, except that his last name was [E], and people called him Brother [F]. The Tribunal confirmed the applicant’s oral evidence was that he was the high official’s biological son.
The applicant said that he was introduced to the son when he was applying for a business licence and [workplace 1] permit. He was told that if you want to be in the [workplace 1] industry you needed to get to know this person. He met the son when he was preparing for the opening of the [workplace 1]. He also invited him to a meal two or three times.
When the Tribunal asked how the applicant offended the son, the applicant said that in China, society operates in a way such that if someone’s parents are in position as an official, the children usually take advantage of that and ask for a protection fee and ask for a share in the same industry that their parents are in charge of. The Tribunal asked the applicant what specifically had happened to the applicant. The applicant responded that the son is mafia and used his father’s power because if his father said the [workplace 1] needed to be shut down, it would be shut down. When he opened his business, the son could see that it was profitable because there were long queues. He asked to join as a shareholder. This happened a few weeks after opening. The applicant said that the son also wanted to borrow money from him because he was addicted to gambling.
The applicant’s evidence was that he and his business partner, who was a neighbour from the applicant’s home village, refused the son’s request. After this, the son often came to the [workplace] but refused to pay and told his father that the applicant had offended him. The father turned on the applicant and picked on him and asked him to shut down the [workplace]. The father made false accusations that the [workplace 1 conditions] was not up to standard and asked him to stop the business to improve its condition, but the applicant didn’t agree. He lodged a complaint with a complaint hotline run by the [office] for letters and protest.
The Tribunal queried when the father asked the applicant to shut down the [workplace 1] and the applicant said that a few weeks after opening, after he had offended the son, at that time he was not asked to shut down; they had asked him to make improvements while operating. The Tribunal sought to clarify when he had lodged the complaint and whether this was after he was asked to shut down. The applicant indicated that the [public office] asked him to shut down the business by force a few months after it had opened and that was when he lodged the complaint. He got no response and offended a bunch of other officials because they protect each other.
The applicant said nothing about the offence he caused flowing from his cooperation with the son, the money earned being used to open an underground casino, the applicant reporting the son, or the son being arrested.
The applicant sought to explain the inconsistencies between the information given to the Department and the evidence given at hearing by referring to the person who had helped with his visa application. He said that this person took money and made the application but had no relevant licence or application. He said he explained his circumstances including the [workplace 1] briefly to this person but was not sure what that person put in the application.
The Tribunal indicated that the email from the applicant to the delegate – where the inconsistency arose – had come from the yahoo email address which the applicant, during the first hearing, had confirmed with the Tribunal belonged to the applicant. The Tribunal had also taken evidence from the applicant about the history of assistance he had received from lawyers or other persons throughout the course of his visa and review applications. The applicant’s evidence was that he had initial assistance from a lawyer when lodging his visa application in 2017 but had lost contact with that person around 6 months later. He then had assistance from [Mr C] in 2024. The Tribunal raised this with the applicant and observed that the email to the Department was in 2020. The applicant said that he asked one of his friends to send the email.
The Tribunal does not accept this explanation. The email is from the yahoo email address which the applicant had confirmed was his, had been used for other communications with the Department and Tribunal, and the email specifically said it was from the applicant.
The Tribunal accepts that corruption exists in China, but places weight on the inconsistency between the information in the applicant’s email to the Department, and his oral evidence. This includes inconsistencies in names, the relationship between father and son (biological or godson), as well as the very different narrative in relation to an underground casino and arrest in contrast to seeking to profit from a successful [workplace 1].
The applicant’s evidence about the harm he encountered in China after he lodged a complaint also changed during the hearing.
When the Tribunal asked the applicant to elaborate upon his evidence that he offended other officials after he lodged a complaint, the applicant said the son engaged other people and harassed his business and caused issues. He received a threat from the son and the son was saying, how could you lodge a complaint, this will cost my livelihood. The applicant said the son aggravated his behaviour. The Tribunal sought further detail about the aggravated behaviour. The applicant said that the son came to his [workplace 1], swore at the applicant and slapped him in the face, in front of his family members. This took place after the [workplace 1] was shut down. The Tribunal asked why the applicant was still at the [workplace 1] if it had already shut down. The applicant responded that he was making an appeal as he disagreed with the decision. He was hoping some government officials would let him reopen.
The Tribunal asked when it was that the shop closed. The applicant said this was before the Chinese New Year in 2017, after he lodged the complaint. The Tribunal queried what prompted the applicant to close the [workplace 1] given that he had previously been resisting to do so. The applicant said the son threatened him so he and his business partner tried to talk to him so that he could forgive them. The applicant, business partner, son and a group of people accompanying the son were at a tea house for a negotiation. It did not go well. The son was not willing to accept the applicant’s offer for free [services] at the [workplace 1]. There was physical contact. The applicant and his business partner were outnumbered. They engaged in some self defence and ran away. The applicant and business partner separated after that and they then worked in jobs in different provinces to hide from the son.

The Tribunal asked what happened after they ran away. The applicant said that at the time, he did not know how badly the son’s people were hurt. The applicant learned that the son would find them and kill them. He knew this because people went to his family home and tried to find him and promised money to people if they could provide useful information. The Tribunal asked what became of the [workplace 1]. The applicant said that the business was shut down. The applicant didn’t take anything with him when he fled.
The Tribunal asked if the applicant tried to reopen the [workplace 1]. The applicant responded no. How would this be possible? How could he go back? He offended the son. However, he heard that the son later found someone to take over the [workplace 1].
The Tribunal finds that the applicant’s account of the circumstances surrounding the closure of the [workplace 1] was inconsistent. On the one hand, the applicant said that after the shut down and complaint, the son came to his [workplace 1], swore at the applicant and slapped him in the face, in front of his family members. On the other hand, the applicant said there was a negotiation at a tea house where there was a fight and he and his business partner managed to run away, and after this took place the applicant effectively abandoned the [workplace 1] and never returned. The Tribunal observes the applicant initially told the Tribunal he was at the [workplace 1] after it closed because he was lodging an appeal and hoped he could reopen it. However, the applicant later emphatically told the Tribunal it would be impossible to try and reopen the [workplace 1]. This suggests to the Tribunal that the applicant’s evidence about suffering harm at the hands of the son and his high official father, and their associates, is not credible.
The applied denied that there was any inconsistency in his account because they were asked to shut down to make improvements and in the meantime he tried to seek justice, to make a complaint, and wanted to have a talk with the other person. The applicant’s intention was that he could make a concession or give some benefits but after we went to negotiate his demand was too much and there was no room to negotiate. The Tribunal does not accept this explanation. The applicant appeared to be referring to his evidence about the negotiation at the tea house, but this does not explain the incoherence between this evidence and his evidence that he fled and did not return to the [workplace 1] nor seek to reopen it, and the evidence that there was an incident at the [workplace 1] after it closed and that he was at the [workplace 1] then because he was seeking to reopen it.
The Tribunal also explored with the applicant why it was he feared returning to China given that seven years had passed and given that the applicant no longer owned the [workplace 1]. The applicant indicated that up until now, the son and his associates had done a secret investigation with the applicant’s neighbours, trying to find the applicant’s whereabouts. The neighbours told them the applicant had left a long time ago but they kept coming back during festival times as they thought the applicant might return then. The applicant speculated that the son was still interested in him because he was mafia and the applicant did not know how badly the son’s people got hurt in the fight. The applicant wasn’t sure how badly they were hurt in the fight but thought that maybe that was why the son wanted revenge.
The Tribunal found the applicant’s evidence vague and unconvincing. Although the applicant claimed that he and his partner were fierce during the fight as they were outnumbered, the Tribunal doubts the plausibility of any serious injuries having been inflicted in circumstances of being outnumbered, engaging in defensive moves, and fleeing the scene. Furthermore, the applicant admitted he was only speculating. The Tribunal is not satisfied that the son has any interest in the applicant seven years after the applicant’s [workplace 1] has closed.
All of the above concerns lead the Tribunal to conclude that the applicant did not meet the biological son (or godson) of the high official of a [public office]. The Tribunal does not accept that this person sought to become a shareholder in the [workplace 1] nor that they asked him to borrow money for gambling. The Tribunal does not accept that this person and their father sought to frustrate the operation of the [workplace 1] by making accusations about [workplace 1 conditions] and threatening the applicant and forcing him to shut down the [workplace 1]. The Tribunal does not accept that the applicant lodged a complaint. The Tribunal does not accept that he was ever harmed by the son or his associates or involved in any fight at any venue and does not accept that the applicant nor his business partner fled, hid in other provinces, and that the applicant was subsequently, and recently, sought out by the son or anyone else. The Tribunal does not accept that the applicant cooperated with the son or that the son opened an underground casino and was arrested after the applicant complained, and that the applicant was beaten and his life threatened.
The Tribunal accepts the applicant had a [workplace 1] in China but finds that he closed the [workplace 1] sometime before coming to Australia for reasons unrelated to offending a high official’s son. The Tribunal finds that the applicant is not of interest to any person or authority in China now nor in the reasonably foreseeable future on account of his ownership of a restaurant or causing offence. The Tribunal is not satisfied that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future, nor a real risk of significant harm, for these reasons.
Claim to be Christian
The applicant claimed during the resumed hearing on 4 December 2024 that he also feared returning to China because of his religion. He said he believed in Jesus and was Christian. He claimed that in his local area it was not allowed to believe in God and the only religion allowed was Buddhism. They couldn’t meet in groups in public or do gospel spreading in public. It had to be done in secret. He didn’t go to a church as that was not allowed. Instead, when the opportunity presented, he would meet in small groups, a few people, in secret. He met with neighbours. Meetings were not frequent; only when there were festivals or Chinese New Year. This was because they all had jobs and as the government did not allow the practice of Christianity and went after people who believed in God. They would do bible study and pray to God. He liked attending as Jesus was the only one who could save humankind and there was a lot of information against him saying he does not exist, but we believe he created everything and it is true. The applicant gave a name of the leader of the church and said he only met him when they celebrated Chinese New Year.
The Tribunal asked whether the applicant encountered any problems when he practised Christianity. The applicant said that village officials often came to check on us and asked us not to believe in Christianity. The Tribunal asked when this happened and the applicant said it was whenever they had a meeting. The Tribunal recalled that the applicant claimed meetings were infrequent and in secret so it might have trouble understanding how the officials kept finding out. The applicant said that some different neighbours would find out and make a report to the officials.
The Tribunal raised with the applicant that his evidence was that he left his home village for Hunan Province for many years and sought to clarify when he experienced the problems with the village officials. The applicant said it was before he went to Hunan and when he came back too. The Tribunal asked how the applicant practised his faith during the years he lived in Hunan. The applicant said that he participated in some local underground organisations which met in secret. He said he did not experience any harm from the authorities during his time in Hunan. The Tribunal sought more detail about what he did while in Hunan. The applicant said he was invited to meetings by a priest at different times and locations and they would spread the gospel. The Tribunal asked how often he would go. The applicant said he did not know; he would just go when he got notification.
The Tribunal asked if the applicant would be open to attending the official church in China. The applicant said he was unaware of an official church. The Tribunal referred to country information that Christians in China are allowed to practice in official churches.[1] The applicant said that he does not know where he would find an official church and lots of places might not have them. He said there is no freedom of religious practice. However, if he could, he would be open to finding more about the official church.
[1] DFAT Country Information Report People’s Republic of China, 22 December 2021, [3.32].
In terms of how and when the applicant became involved in Christianity, he said this was a long time ago, after high school. His parents were Buddhist but another person who was a Christian spread the gospel to him. The Tribunal asked the applicant which person. The applicant said one of his Christian neighbours. The Tribunal asked for their name. After a pause, the applicant named the neighbour. The Tribunal asked how the neighbour spread the gospel to him. The applicant said that Jesus was trying to save our humankind and sacrificed himself and was crucified to save people. Only Jesus could save humankind because everything was created by God.
In relation to his practice in Australia, the applicant said that when he was in Melbourne, he would get together with a priest on the [workplace] who came from [Country]. Since he came to Sydney three years ago, he has attended a church. The applicant produced a flyer (in Mandarin). The interpreter explained to the Tribunal that the flyer was from a church called the [Church]. The flyer referred to a service on 1 December 2024. The applicant said he found out about the church through a person who spread the gospel. The Tribunal asked him to identify the person. He said it was a colleague who shared accommodation with him. He went to the church every Sunday from 11am to 1pm so long as he didn’t have to work overtime. When he went to church, he would listen to the bible. There would be singing and praying. The Tribunal asked the applicant what the priest talked about when the applicant last went to church on 1 December, a few days before the present resumed hearing. The applicant said the priest talked about something different every week. The Tribunal asked again what the priest talked about a few days ago. The applicant referred to the flyer and said he talked about the gospel noted on the flyer.
The applicant told the Tribunal he was not baptised. The Tribunal asked why. The applicant said there was an arrangement for this two months ago but he couldn’t attend as he had to work. The Tribunal pointed out that the applicant had told it he had been attending the church since he came to Sydney three years ago and asked why he hadn’t been baptised in that time. The applicant repeated that there was an arrangement two months ago but he had to work. The Tribunal asked why the applicant had not been baptised at anytime in China, noting that he had been a Christian for decades. The applicant said he was too afraid as everything was in secret.
The Tribunal also asked the applicant if there were any important religious holidays or celebrations to him. The applicant said he just participated in some meetings and public donations. The Tribunal asked again whether there were any religious holidays he would celebrate or go to church for. The applicant said he once went to [Suburb 1] to participate in a donation event to raise money for the Middle East. The Tribunal asked whether the applicant did anything on Christmas or Easter. The applicant said no, he would just attend church. The Tribunal queried whether those days were significant to him at all. The applicant said there were donations and gatherings for father’s day and mother’s day.
The Tribunal has several concerns about the applicant’s claims to be a Christian and to have attended underground meetings in China and church in Australia.
Firstly, this claim was raised for the first time at the resumed hearing. The Tribunal explained to the applicant the effect of s 367A of the Act, which applies if an applicant raises a claim which was not raised before the delegate’s decision. The Tribunal explained that the law required it to draw inference unfavourable to the credibility of the claim if the Tribunal was satisfied the applicant did not have a reasonable explanation why the claim was not raised before the primary decision was made, and asked the applicant for an explanation as to why he did not raise the claim with the Department. The Tribunal noted the applicant lodged the application on 5 December 2017 and it was decided on 15 October 2020, so the applicant had nearly 3 years to raise it. The Tribunal referred to the correspondence from the delegate and the applicant’s email response on 1 September 2020, which said nothing about being a Christian and fearing harm because of this.
The applicant said at the time the person assisted with his visa application, the person helping him only took money and made the application. He had no relevant licence or qualification. That person only collected some information about the applicant’s circumstances, and he was not aware of any correspondence from the Department because it was handled by that person. He said that he then received the refusal but it was during the pandemic so he couldn’t attend the Tribunal, so he made an application to have his case transferred from Melbourne to Sydney. This meant he did not have the opportunity to present his case to the Department because he was not aware of the application lodged by this person. He only gave the person brief information about his circumstances. It is possible that person wrote something else down to what the applicant told him. He told them about the [workplace 1] and that’s why couldn’t survive there. As for the religion claim, he forgot to tell this person.
The Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not made before the primary decision was made. Even if the Tribunal accepts that someone helped the applicant in 2017 to fill in the application form based on brief information the applicant told them, the Tribunal considers the applicant would have remembered to mention his Christian faith, were this a reason the applicant feared returning to China. Indeed, as discussed with the applicant, the form indicated that the applicant’s religion was Buddhist. The applicant said that once a religion is indicated in a Hukou, it is impossible to change, because in the 1990s there was no such thing as being a Christian in China. However, this would not have prevented the applicant from stating in his protection visa application, made in 2017, or telling the person assisting him, that he was Christian.
The Tribunal also does not accept that the applicant was unaware of the email from the delegate seeking more information. As discussed above in relation to the applicant’s [workplace 1] related claims, the Tribunal finds that the applicant was the author of the email to the delegate in September 2020. He could have raised his Christianity claim at this time. Further, the impact of the pandemic on the applicant’s ability to attend the Tribunal and the movement of his case from Melbourne to Sydney has no bearing upon the failure to make the Christianity claim before the delegate’s decision. To the extent the applicant could be understood to be claiming he did not have the opportunity to raise the claim before the Tribunal’s hearings in November and December 2024, the Tribunal also rejects this. The applicant could have provided information to the Tribunal at any time. Even if the Tribunal accepts the applicant did not control the gmail address used for some correspondence in 2024, he had previously corresponded with the Tribunal in 2021 using other email addresses and had been advised, when the application for review was lodged, that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
Next, the applicant’s oral evidence about his attendance in underground church meetings in China, and church in Australia, was vague and lacked detail. Even accounting for some loss of memory given that the claimed events in China took place many years ago, the applicant only described infrequent meetings with some neighbours and visits from the village committee at those meetings. His claim that other neighbours kept reporting these meetings, which the applicant claimed were covert, seem implausible. When the Tribunal pointed out that the applicant was in Hunan for years and asked how he practised his faith during that large period of time, the applicant said he was invited to meetings by a priest at different times and locations, but couldn’t remember how often he would go, only that he went when he received a notification. In relation to his attendance in Australia, the Tribunal also found the applicant’s evidence to be vague and unconvincing. For instance, the Tribunal asked what the priest spoke about in his sermon and the applicant said it always changed. He pointed to the flyer dated 1 December 2024 and said that the priest spoke about the verse of the bible mentioned in the flyer. The Tribunal accepts the applicant went to the church on this date. However, the applicant’s possession of this flyer does not alone support the applicant’s claim to have been attending the church for the last several years.
The Tribunal is also concerned that the applicant was not baptised. While it accepts that this may have been difficult in China, the applicant was not able to explain why he had not sought to be baptised in Sydney apart from the arrangement made two months ago.
Furthermore, while the applicant displayed some knowledge of Christianity (such as Jesus’ death and resurrection and being the saviour), the Tribunal was also troubled by the applicant’s responses to the Tribunal’s questions about the significance of Easter and Christmas to him. While the Tribunal is mindful that it should not be an arbiter of religious faith,[2] the applicant struggled to articulate a reason why Easter or Christmas may be important to him as a Christian, despite claiming to have become a Christian decades ago and to have been regularly attending church in Sydney for the last three years. When the Tribunal raised this issue with the applicant, the applicant said that he misheard the Tribunal and thought the Tribunal was asking about important meetings. The Tribunal indicated it had asked whether there was anything significant about Easter or Christmas. The applicant said he attended church on these important festivals. The Tribunal asked why they were important. The applicant said that Lord Jesus was crucified on the cross and three days later came back to life, a miracle, and paid a high cost to save humanity. The Tribunal asked if the resurrection was commemorated at any particular time, and the applicant said Easter. The Tribunal asked if anything was significant about Christmas to him and he said for him, it was about commemorating Santa Claus. In the context of the applicant’s claimed long-standing Christian profile, including regular recent attendance in Australia, the Tribunal has some concern that the applicant only identified the importance of Easter after repeated questioning, and did not identify any Christian meaning associated with Christmas. The Tribunal does not accept that the applicant misunderstood the Tribunal’s questioning. The Tribunal twice asked if there were any important religious holidays or celebrations to him, and, in any event, it then specifically asked about any significance of Christmas and Easter, to which the applicant’s initial response referred to mother’s and father’s day.
[2] Wang v MIMA (2000) 105 FCR 548 at [16].

The Tribunal acknowledges that the applicant swore an oath on the bible at the commencement of the hearing, and asked to say a prayer at the conclusion, which the Tribunal allowed. However, the Tribunal does not place weight on these factors as supportive of the applicant’s claim to be Christian. The Tribunal considers the applicant’s oath and prayer was a purported demonstration to the Tribunal that he was Christian, but does not accept that saying an oath, or the ability to say a prayer, alone nor in conjunction with the applicant’s other evidence, demonstrates genuine Christian belief.
Having regard to all of the above, the Tribunal does not accept that the applicant has any Christian beliefs. The Tribunal does not accept that the applicant ever attended any underground Church meetings in China, either in his home village, in Hunan, or anywhere else. The Tribunal is not satisfied that the village committee, nor anyone else, had or has any interest in the applicant because of Christianity and is not satisfied that anyone has or would perceive him to be Christian. The Tribunal accepts the applicant attended the West Asian Christian Church on 1 December 2024 but finds he did not attend there on any other date and finds that this attendance does not support the applicant’s claim to be a genuine Christian. The Tribunal does not accept that the applicant would attend any church or meetings about Christianity upon return to China now or in the reasonably foreseeable future, including the official church, or an underground or unregistered church.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm based on being a Christian.
Church of Almighty God
When the Tribunal was questioning the applicant about whether there was anything the applicant could tell it about the Bible and if there were any parts of the Bible which were important to him, the applicant began talking about now being involved in an Almighty God organisation. He said the Lord Jesus came to us the third time to save us from evil people lead by Satan. He mentioned the first time the Lord came to the world, and the second time being when the Lord came to save us and for redemption, being crucified on the cross. The applicant said the third time the God took the shape of a human being and we call this the Era of Grace. Every time the Lord came to this world he came with different names and this time it is not Jesus anymore, it is called Almighty God. We need to approach the God and say the truth and we need to save people who were made evil by Satan. This third time the Lord came to us in the human form and to work for us.
The Tribunal asked if, apart from the Bible, there was any religious text that the applicant read. The applicant said no.
The Tribunal asked if there were any important figures to the applicant when he thought about the Church of Almighty God, for example, who did Jesus return to Earth as? The applicant said that he was incarnated in human flesh form into this world. He has the personality of a human being and he talks like a person. The distinction between a person and a God is whether he or she speaks the truth; whether he or she works for the God. Only God can speak the truth.
The Tribunal asked if the applicant had recently joined the religion. The applicant said it was recently; there was an organisation called Almighty God. The Tribunal asked for more information. The applicant said it was in [Suburb 2]. The Tribunal asked when he found out about the organisation. The applicant said one of his colleagues learnt about the organisation online and there was a pastor called [Pastor G] and we attended a face-to-face meeting in [Suburb 2]. The Tribunal asked when this took place. The applicant said it was three weeks ago. The applicant said we learn online and speak the truth and have a special group dedicated to this. The Tribunal asked if he was going to group meetings and when they were. He said they were on Sunday afternoons after his other usual church session.
The Tribunal put to the applicant that he had started attending the Church of Almighty God around the same time that the applicant was invited to the Tribunal’s hearing, and that might make the Tribunal question whether the applicant was genuinely interested in the religion. The applicant asked the Tribunal if its question was about whether the religion was genuine, and the Tribunal said it was querying whether the applicant’s belief in it was genuine. The applicant said he genuinely believes in the religion.
The DFAT Country Information Report People’s Republic of China, 22 December 2021, describes the Church in the following terms:
3.57 The Church of Almighty God (also known as Eastern Lightning) was banned as a xie jiao in November 1995. COAG operates in secret (both to avoid detection and as a general matter of practice) and so little is known about the Church. It receives academic attention from a small number of foreign researchers, most of whom take a sympathetic view of the religion. COAG is also sometimes reported about in the mainstream Western media with articles that quote Christian groups as critical of the Church.
3.58 COAG adherents may believe Jesus returned to earth as ‘Almighty God,’ a woman in the 20th Century. ‘Almighty God’s’ sayings are collected in the book ‘The Word Appears in the Flesh’. COAG members believe they are in a constant mortal struggle against the ‘Great Red Dragon’ (a possible reference to the CCP), and that membership of the group will bring salvation from an impending apocalypse. ‘Almighty God’ came to inaugurate the third and final age of humanity, ‘the Age of Kingdom’, which follows ‘the Age of Law’ (the Old Testament) and ‘the Age of Grace’ (of Jesus).
3.59 Little is known about the identity of the central female figure, which may be because of secrecy. Some non-COAG sources claim that she (as an historical figure) never existed at all and the Church denies claims that she is called ‘Yang’ or ‘Deng’ or that she comes from Henan, which is reported in some sources. DFAT understands from sources that different beliefs about her identity may exist amongst Church followers and DFAT is aware of some members who deny that any such figure exists at all. Others may pay little attention to the female Christ figure without denying her existence. Similarly, COAG texts might refer to ‘Almighty God’ using male pronouns. Some adherents believe that a woman came to earth as a new incarnation of Christ and the ‘ordinariness’ of this woman may appeal to some rural female adherents.
3.60 There is no formal liturgy or sacraments in the COAG movement but weekly study meetings do occur. The leadership can change quickly. Members of the Church may deny, or not understand, the hierarchy and leadership of the Church, but DFAT understands that there is a hierarchy. Due to the secrecy that surrounds the Church, a common understanding may not be reached by members and questions about practice could genuinely be answered differently by different adherents. COAG members generally do read The Word Made Flesh, the central religious text of the group. DFAT is not aware of any central registry of members and understands that there are no authoritative estimates of the number of members.
3.61 COAG is controversial. Multiple claims of illegal activity such as homicides and kidnappings have been reported in the media. Members are reportedly forced to break away from families or sell their possessions to give the proceeds to the Church. These claims are disputed by COAG and some members. Other small groups, especially small Protestant groups, are strongly against COAG and many sources that describe the Church come from that origin. Those sources may not be reliable. DFAT understands that some Protestants cooperate with authorities to help them identify COAG activity and arrest members.
3.62 Separate police action against members may be related to membership of the organisation or alleged criminal activity connected to it. According to research conducted by Dui Hua, an American human rights research foundation, court cases involving COAG ‘rarely involve violence’, suggesting that most cases relate to membership of the group rather than alleged violent crime. Dui Hua reported that the majority of the cases coincided with a prophesied apocalypse in 2012 and an incident in which a person was murdered in a McDonald’s restaurant in Shandong in 2014 (in which the Church denies involvement and DFAT understands from sources occurred at the hands of a schismatic group, not members of COAG itself).
3.63 COAG is not well understood but it is clearly illegal in China, and reports of widespread arrests are credible. It is illegal for them to proselytise; those who attempt to proselytise, as well as leaders in the Church, are subject to greater scrutiny by authorities. Inability to practise openly and alleged (but disputed) isolation of members from family and society could reduce exposure to societal discrimination. DFAT is unable to verify whether a former member or a person imprisoned for membership would be placed on an exit control list. DFAT assesses that members face a moderate risk of societal discrimination due to high-profile anti-xie jiao campaigns that are critical of the group.
The Tribunal accepts, based on the country information, that the Church of Almighty God is illegal in China. The Tribunal accepts that the applicant displayed some basic knowledge about the group’s beliefs, such as Jesus having returned to earth as ‘Almighty God’. The applicant did not identify that Jesus returned in the form of a woman, although the country information suggests that not all believers may share this belief, so the Tribunal disregards this. In addition, the applicant did not identify the text ‘The Word Appears in the Flesh’, and he also described the third age as the ‘Age of Grace’ rather than the ‘Age of Kingdom’. The Tribunal accepts the applicant’s lack of knowledge could be attributed to the applicant being very new to the faith.
The Tribunal, applying s 367A, accepts that the applicant has a reasonable explanation for not raising this claim before the delegate’s decision was made, given that he claims he only began pursuing an interest in it a few weeks ago. However, that section aside, the Tribunal is very concerned about the timing of the applicant’s interest in the faith, which the applicant did not deny took place at around the same time he found out about the Tribunal’s hearing invitation either via his former representative [Mr C] and/or by SMS reminders. The applicant’s response that his belief was genuine does not satisfy the Tribunal in light of the Tribunal’s impression of the applicant’s overall evidence.
The Tribunal, as discussed above, has rejected that the applicant possesses genuine Christian beliefs. The Tribunal notes that the Church of Almighty God incorporates some Christian theology, such as the existence and role of Jesus as humanity’s saviour (but deviates with a further belief that Jesus has returned again). Together, this further causes the Tribunal to not be satisfied that the applicant has a genuine interest in, or belief in, the Church of Almighty God.
The Tribunal accepts that the applicant has read some information online about the Church and attended a meeting about it. However, the Tribunal does not accept he a is a genuine believer in the faith. The Tribunal does not accept he participated in any other activities in-person or online, such as publishing anything, and finds that he has not been involved in any activities in Australia which would come to the attention of the Chinese authorities. The Tribunal finds that the applicant would not pursue any interest in the Church upon return to China now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm, based on being, or being perceived to be, a member or supporter of the Church of Almighty God.
Conclusion
The Tribunal has found the applicant’s claims not credible. The Tribunal finds that the applicant was not, is not, and will not be in the reasonably foreseeable future, of adverse interest to any person or authority in China for any reason. The Tribunal is not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
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.
…