2017901 (Refugee)

2017901 (Refugee) [2024] AATA 3458 (23 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Harry Huang (MARN: 9579277)

CASE NUMBER: 2017901

COUNTRY OF REFERENCE: China
MEMBER:Linda Pearson
DATE:23 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 May 2024 at 1:03pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – home church – imputed political opinion – land resumption without compensation – petition against corruption – physical assault – fear of detention – exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is [an age] year old woman from Fujian province in the People’s Republic of China (PRC or China). She claims to be a citizen of China.
[The applicant] arrived in Australia as the holder of a visitor visa [in] August 2017. On 13 September 2017 she applied for a protection (Class XA) visa.
On 10 December 2020 the delegate refused [the applicant’s] protection visa application pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The issue in this case is whether [the applicant] is either a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law, and mandatory considerations is set out below, and an extract of key provisions of the Act is provided in Attachment A.
The applicant was represented in relation to the review.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in the protection visa application, [the applicant]:
·     was born in Fujian province on [date];
·     completed High School at [School 1] in [specified year]; and
·     worked as [an occupation 1] between [specified years] at a [business 1] in Fuqing city, and then between [specified years] as [an occupation 1] in Xi’an city, Shaanxi province.
The applicant provided the names of her parents, and stated she was never married, and had no religion.
In the protection visa application form [the applicant] declared that she had received assistance in completing the form, and nominated as authorised recipient [Ms A].
The applicant stated that she sought protection because of persecution, because she had made a petition revealing official corruption. The farming land in her village had been taken by the local government for a developer, and she and other residents did not receive any compensation. They refused to sign the collection agreement, and she was beaten because she refused to sign the agreement. The developer was a relative of officials. She and other residents decided to make a petition, and she and others wrote a public letter to distribute. After the officials knew of her behaviour they sent police. She escaped China and fled to Australia. The applicant stated that if she returned to China she would suffer persecution by the police, and if sent to prison she would die. She would not be able to relocate because the whole situation in China is corrupt.
Supporting documents
On 27 July 2020 the Department sent a request for further information, in particular copies of land documents or title deeds for the property which the dispute was about, copies of any letters or petitions she had distributed in public or sent to government officials about the matter, and, if she had been arrested or had faced arrest, copies of any arrest warrants or charge sheets received.
On 29 July 2020 [the applicant] advised the Department of appointment of a new representative, registered migration agent Mr Harry Huang (MARN: 9579277). She provided a statutory declaration dated 31 August 2020 in which she stated that she had recently received a copy of her protection visa application under FOI, and found a number of mistakes that need correction. The applicant provided further details of her background, stating that she:
·     was born in [Village 1], [Town 1] Fuqing City Fujian province;
·     has [siblings] currently in [Country 1];
·     attended school in her home village of [Village 1, and completed middle school education in [Town 1] [between specified years], and then enrolled in [School 2] located in [Town 2] Fuqing city around 60km from her home village, and completed high school in July 2013;
·     normally lived at school and returned home on weekends while she studied at senior high school; and
·     after graduating from high school, obtained a job at a [business 1] in [Town 1] about 2-3km away from [Village 1], and lived with her parents.
[The applicant] stated that the [business] was a small [business 1] run by the family of [Friend A], a classmate from senior high school. [Friend A] was the only child of her parents, and she and her parents were devout Christians who belonged to an unofficial family church. Their home was one of the meeting places for church brothers and sisters. She began to follow [Friend A] to attend the church meetings on weekends from January 2013, and was baptised at their home in June 2013. After she became a Christian she actively assisted [Friend A] and her parents to evangelize local villagers, including her parents, in her home village [Village 1]. Up to 2017 around 60-70 villagers became Christians of the church.
[The applicant] outlined her claims relating to the expropriation of the farming land and her protests. In summary:
·Her parents’ farmland ([size]) was forcedly expropriated by [Town 1] government in [2017], and the land was then sold to the [local] branch of [Company 1], for construction of “socialist new countryside”. The company refused to pay any compensation to her parents or other villagers who lost their farmland, forcing villagers to sign agreements for transferring their land use rights;
·As one of few villagers who had completed [grade] she was regarded as a well-educated person in the village, and was recommended as representative to approach the township government and the company for compensation;
·Most of the villagers who lost their farmland were also Christian and regularly attended church meetings organised by [Friend A’s] parents;
·[Later in] 2017 the company together with police went to her home village, occupied the farmland by force, and forced her parents and local villagers to sign the agreements. When she tried to stop them she was beaten up and many other villagers were also wounded;
·She later learned the company was actually run by relatives of the township government officials and they colluded with each other for profit;
·[Later in] 2017 she wrote an open letter, and through church meetings invited the villagers who had lost their farmland to sign. She made hundreds of copies of the open letter and organised local villagers to distribute the copies in public;
·Early in July 2017 [Friend A’s] parents learned from friends in the Public Security Bureau (PSB) that police had found out she was the writer of the open letter and she was regarded as a dangerous person who had used the church to have anti-government activities, and became a target of the police. [Friend A] arranged for her to move to Xi’an city Shaanxi province and temporarily hide at her [Relative A’s] home. [Relative A] secretly organised her trip overseas through a friend, and she obtained a new passport [in] 2017;
·She hid at [Relative A’s] home for about a month, and learned from her parents that police had looked for her at her home many times and her parents were implicated and subject to investigation by the PSB;
·She left China [in] August 2017 from Wuhan city, all organised by [Relative A] and his friends, including bribing police at the airport;
·Not long after she left China [Friend A] and her parents were arrested by police as they were regarded as “black hand” of the anti-government activities, and their [business 1] was closed by police;
·She was unable to obtain documents as requested in the Department letter of 27 July 2020 as her parents told her that the family had been thoroughly searched by the police several times and all relevant documents, including her computer, were confiscated;
·She has continually attended the Christian church in Australia;
·She believes that she will be arrested by the police, imprisoned by the authorities and subject to persecution if she returns to China.
The only other supporting document provided to the Department was a statement by [Friend B] dated 6 October 2020, stating that she has known the applicant from church since August 2017.
Protection visa application interview
[The applicant] attended an interview with the Department in connection with her protection visa application on 6 October 2020. The interview was conducted by telephone, with the applicant and her representative at the representative’s office. The interview was conducted with the assistance of an interpreter in the Mandarin and English languages, also by telephone.
The Tribunal has listened to a copy of the recording of the protection visa application interview. Further to the information in the statutory declaration, [the applicant] gave the following evidence in connection with her claims:
·     She lives with her landlord, his wife and their children, paying rent of $120 per week, and has [specified work];
·     She began to follow Christianity in 2013. Asked why she said “No religion” in her application, she responded that the application was full of mistakes;
·     She is claiming protection because the police are after her. In China she had used the church gatherings to ask peasants who had lost their land to sign an open letter which she disseminated in a public area in 2017, later stating the date was [in] July 2017;
·     Her parents were not involved because they were scared and afraid they might get caught;
·     She became a Christian in January 2013, when [Friend A] introduced God to her and she was moved by the holy spirit and through the holy spirit learned about truth. The holy spirit is in everyone, Jesus Christ saved the world and died for us on the cross, and you can have eternal life if you believe in God;
·     The house church gatherings in China were normally twice a week, where they would do communion and pray together and do bible study and sing hymns. Asked about the Bible, [the applicant] referred to Matthew and Luke, and said they would read mainly the New Testament and the Old Testament as well;
·     She was baptised by having her whole body in water, the brothers and sisters were praying for her, the elder explained the meaning of being baptised and they sang hymns. One of the brothers held her and then her whole body was under water. She decided to get baptised when she did because she was moved by the holy spirit and believed in God in her heart and gave herself wholly to God and accepted God as her saviour;
·     She has no evidence of her baptism as the church did not give a certificate and no photos were taken as that would put her in danger;
·     The church was growing through local farmers, spreading the gospel by telling people that Jesus saved the world and only people who believe in God will be saved, that Jesus is coming back to set up his own nation;
·     Her parents did not follow the house church: she preached to them and believes one day they will become Christians. They are supportive of her and think she has changed, that she is more confident and has courage; and
·     After she left her friend and her friend’s parents were arrested, and they were still locked up. They became implicated when the villagers turned in their names because of the gatherings at their home.
The delegate asked the applicant whether she had any evidence of the taking of the land. The applicant said that she had photos however the police took her computer and her phone.
The applicant stated that she started attending the [Church 1] in [Suburb 1] in August 2017. Church activities include reading the Bible and praying. She owns a Bible, and prays for herself her parents, friends and family. She does not have evidence of attending church, as God will see everything they do and does not need proof.
The applicant said that she would continue to practise in China, attending religious activities. The [Church 1] is not a government church. The church in China is controlled by the government. She would not study at a house church in China because that is dangerous, and needs registration with the county government, and gatherings are under surveillance.
Summary of the delegate’s decision
On 10 December 2020 the delegate refused [the applicant’s] visa application. The delegate stated that she had a number of concerns in relation to the credibility of the applicant’s claims for protection, and found that the applicant does not have a genuine fear of persecution in China as claimed. The delegate did not accept the claims of fearing persecution on the basis of a belief in Christianity or being viewed as an “anti-government activist” by the Chinese government. The delegate was not satisfied that the applicant was a genuine and committed practitioner of the Christian religion in China or that she is a genuine practising Christian in Australia. The delegate found that the applicant did not demonstrate that she has the knowledge or belief in the faith reasonably expected of a genuine practicing Christian, or that she had provided a level of substantiating detail for her claim that she evangelised many locals. The delegate did not accept that the family farmland had been expropriated or that the applicant had invited affected landowners to sign an open letter. The delegate concluded that the applicant had provided very limited detail in her responses beyond what was provided in her statutory declaration. The delegate accepted that the applicant has attended church in Australia, however the church pastor was unable to confirm her attendance when contacted. The delegate placed no weight on the letter of support by [Friend B], concluding that that was the only evidence provided in relation to the applicant’s church participation in Australia, however it was not completed on a Commonwealth statutory declaration form and there was no letter of support from the church.
Claims and evidence provided to the Tribunal
Pre-hearing submissions
On 14 December 2020 the applicant lodged an application for review of the delegate’s decision, with a copy of the delegate’s decision. She continued to be represented by Mr Huang.
On 11 January 2024 the representative provided the Tribunal with the following:
·     Birth certificates of [the applicant’s children], both stating [the applicant] as mother and [Partner A] as father;
·     Photos of the applicant at church, and at a love feast;
·     Photos of the [Church 1] [specified] conference;
·     Photos of the applicant and her children at Sunday school;
·     Photos of the applicant with church brothers; and
·     Letters of support by [Person A], [Elder A], [Person B], [Person C] and [Ms B].
The hearing on 19 January 2024
[The applicant] appeared before the Tribunal on 19 January 2024 to give evidence and present arguments. The representative also attended the hearing. [The applicant] did not request the Tribunal to take evidence from witnesses.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Early in the hearing the representative raised a concern with the accuracy of the interpreting. The Tribunal clarified with the applicant and the interpreter then, and as the hearing progressed, that the applicant and the interpreter were able to understand each other, and reminded both that they should raise any concerns they had during the hearing. At the conclusion of the hearing the representative acknowledged that the interpreting was at a high standard.
The applicant gave evidence concerning her family composition, confirming that her parents were previously farmers and now fish, and that her [siblings] are currently in [Country 1]. She stated that she has contact with her parents every one to two months.
The applicant’s evidence concerning her school education and her work as [an occupation 1] in China was consistent with the statements made in the statutory declaration dated 31 August 2020.
The applicant stated that she obtained the passport on which she travelled to Australia with the help of [Relative A’s] friend. Asked if it was difficult to obtain that passport the applicant said that he had to bribe someone to organise it as her hukou was not in Shaanxi province.
The applicant confirmed that she is not married to [Partner A], the father of her children. He is a citizen of China and has no visa to be in Australia. He does not want to apply for a marriage certificate with her. She wants to marry, and is feeling remorseful as that is something not permissible in Christianity. He works and supports the family.
The applicant’s evidence as to the appropriation of the farmland of her parents and other villagers was generally consistent with that in her statutory declaration. Further detail was provided at the hearing. The appropriation of the land farmed by her parents and approximately 60 other villagers in [2017] was to build a socialist [village], which has blocks of units and some farming land. The development has now been sold. [Later in] 2017 when the police came and occupied the land by force, she and her parents were beaten and injured; they used batons and pushed them to the ground and trampled on them. Other farmers were also beaten. Her parents have not been physically harmed since, however they made a mess of their home.
The applicant stated that if she went back to China she would demand compensation. She would go and see them, she wants to get reasonable compensation. Asked if she would take legal action the applicant said that the law in China is something where officials collaborate.
The Tribunal asked the applicant about her religious practice in China, and she stated that the church meetings at the house of [Friend A’s] parents were held twice a week with 50-70 people, and also in other sisters’ homes. They would sing, read the Bible, pray, and have holy communion. She would spread the gospel to local farmers, going to their land every one to two days.
The applicant stated that in 2013 influenced by [Friend A] she had come to know God. She had no religious belief before. Asked what attracted her to religion, the applicant said that she felt everything was blossoming, each of us is born in sin and if we do not believe in Jesus we will go to hell; and if we believe, our soul will be saved. She believes that God prepares graves for people who are corrupt; that Jesus was on the cross because of our sins, and was resurrected. He will come again and the kingdom of God will give everlasting blessings. Afterwards she feels she has someone she can rely on, she can talk to God about everything. Her parents were supportive of her, and felt she had changed, had her own beliefs. They have not become Christian but she believes that one day they will.
The applicant stated that there have been visits to her parents by police since she left China, five times a month while she was in Shaanxi and later four times a month. They are still going there, to ask her parents to advise her to go back to China, because she wrote an open letter and challenged the authorities and they must arrest her as a matter of deterrence. She stated that [Friend A] and her parents are still detained, [Friend A’s] father having received a [term] sentence, and [Friend A] and her mother (who died of COVID in 2021 while in prison) a [term] sentence. [Friend A] is still in prison because she refused to sign a document that she would give up religion and join an authorised church. They were sentenced in 2017. The applicant does not know if any documents exist, and she heard this from her parents.

The Tribunal asked the applicant about her religious practice in Australia, and she stated that she joined the church here in August 2017 soon after her arrival in Australia. She said she was led there by God, and saw a YouTube ad for the church and found it on the internet The church has services in Chinese and English. Her children are not baptised, as in her church children wait until they are old enough. She was not sure at what age they might be old enough to decide. The applicant identified herself and her children in the photographs provided before the hearing.
The Tribunal asked the applicant about the letters of support, noting that none mention her husband. The applicant stated that it is a big problem in her mind that he does not believe in the Lord. Her husband does not go to church, however if there are late meetings at church he will look after the children. He supports her going to activities and he supports the children in going to church. She wants him to come to church with her.
The hearing on 16 February 2024
The Tribunal held a second hearing on 16 February 2024. [The applicant] appeared, with her representative. [The applicant] did not request the Tribunal to take evidence from witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal confirmed that the applicant and interpreter were able to understand each other.
The applicant gave evidence concerning the issue of the passport on which she entered Australia, which records that it is a replacement passport. The previous passport was issued in around 2013, and was possibly still valid when she travelled to Australia. She did not dare use the old passport because it would have been easier to find her, and that passport was confiscated in July 2017. It was in a drawer in her room. Asked how the Shaanxi authorities knew about the old passport the applicant said she bribed a person in the passport office. She provided a photo, and may have provided personal details. Then she recalled that the person who helped her get the passport also helped her get a certificate for temporary residence in Shaanxi. She had not travelled on her old passport, which she obtained when she turned [age] and was allowed to get one. The police had searched her place and found photographs of her and other fellow believers in religion.
The Tribunal asked the applicant about her religious practice at home in Australia. She stated that there is online praying on Wednesday at 8pm, and every other Sunday night Bible reading. She reads the Bible, prays, and evangelises. Asked for more detail as to what she meant by the term “evangelise”, the applicant stated that in her daily life if she runs into anyone, for example if she is taking the children to the park or shopping, she would talk, and she has flyers. Her husband has recently started to participate, and he has decided to go to church. Before December he would go occasionally; she did not mention that in the previous hearing because at that time he was not participating regularly. He is learning to pray. The Tribunal observed that based on the photographs and supporting letters a significant part of her involvement at church was in the mothers’ group; the applicant agreed, however said there are also faith group gatherings every Friday night, and a love feast four times a year.
The Tribunal asked the applicant about her children, and she said that they are Christian and have grown up attending church activities with her. They attended Christian pre-school in [Suburb 1], and her [Child A] now goes to school at [a named] Christian primary school. Asked what denomination the school is, the applicant was not sure; it is not Catholic.
The Tribunal asked the applicant where she would go if she returned to China. She stated that she would go to [Village 1] and live with her parents. She would try to find a job, she has experience working in a [business 1]. Her husband works as [an occupation 2], and in China did [specified work]. His hukou is Fuqing city, so he could go there.
Asked if she would continue her religious practice if returned to China, the applicant stated that she would try her best. She would tell people to believe the Bible, and God. The Bible is God’s word and is the highest authority, and cannot be challenged. Asked how she would tell people, the applicant stated that every time she runs into someone she should share ideas. Asked if she would go to a church or gather with others who share her beliefs, the applicant stated that she would continue to practice as she does here, but would not go to a registered church. Asked if she knew of any house churches, the applicant stated she would try to find one.
The Tribunal asked the applicant what she thought might happen to her if she returned to China, to Fujian. She stated that she believes in the Bible and God. She is afraid she would be forced to practice her religion differently as the CCP controls the church in the whole country since President Xi has implanted the church with a Chinese character. If she continues to pray she would need a Bible, and she is afraid she would be arrested as challenging President Xi. In February 2018 there was a new religious affairs regulation implemented, and the core of true belief is different. If she did not change the way she practised her religion the government would say she was challenging authority.
Asked if there was any other reason she feared returning to China, the applicant stated that she fears for her children, as they would not be able to attend religious education and they have come to know God at a young age.
The Tribunal discussed with the applicant the country information concerning the practice of Christianity in China, and the DFAT assessment that Protestant Christians face a moderate risk of official discrimination, with members and particularly leaders of large underground churches being most susceptible to discrimination, and a low risk of societal discrimination; and the information suggesting local authorities in Fujian tolerate operations of unregistered churches that operate discreetly, and that only individuals who engage in active and public proselytising would likely be exposed to harm. Her response was that there is no true freedom of religious belief in China. She should not have to stay in hiding, and if she is not doing anything wrong she should not have to hide. She is determined to evangelise.
Asked if there was any other reason why she feared returning to China, the applicant stated that it was the land taken by the government, and the police still coming to the house. Asked whether there had been any further visits since the January hearing, the applicant stated that she had not talked with her parents since then. The applicant stated that even if she moved from Fujian there would still be a problem, as the government is centralised and the [Town 1] authorities have the power to approve her hukou, and she would not be able to get one registered which she would need to get a phone, and employment. Asked why she thought she was still at risk of harm so many years later, the applicant stated it was because she had disclosed things under the table relating to government and relatives of government officials, and they thought she had openly challenged, and had to be an example.
The Tribunal asked the applicant about inconsistencies between what she had said at the departmental interview and in her evidence to the Tribunal, and invited her to comment or respond. In relation to the statement at interview that [Friend A] and her parents had been arrested, and her evidence at hearing that they had received prison sentences, the applicant stated that everything she hears comes from her parents and she found out about the sentences only after the interview. She had not mentioned her partner and [children] at the departmental interview because she and her husband are not married and there was no reason to tell, it is a heavy burden on her head; her husband does not want to impact on her application by having children before marriage. The applicant stated that since the first hearing she has discussed this with her husband and they have decided to marry, and have submitted a marriage application notice. The Tribunal asked about her statement at interview that there were no photographs or documents relating to her religious practice in China, and her evidence at hearing that the police had raided her home and taken them; the applicant responded that there were photographs of other religious believers and high school friends. The applicant did not request further time to respond and comment.
The Tribunal raised a concern that the applicant’s religious activities in Australia may have been solely to strengthen her refugee claims, noting that the applicant started attending the church in the same month in which she arrived in Australia; that she told the delegate that there were no certificates or photos because God would see everything that we do, whereas the Tribunal has been provided with several photos that appear to have been taken recently; and the incompatibility of not being married to the father of her children with her religious belief. The applicant stated that it was not reasonable to think that; to have been able to escape was a blessing from God and she had to go to church to pay him back. She wants to be someone that God likes. The photos are recent because during the pandemic church activities were online.
The Tribunal asked the applicant why she had provided a different residential address when registering the birth of her [first child]; she stated that they had had a child while not married and the landlord did not agree to them using his address so they used a friend’s address. The Tribunal noted that the applicant had been able to remember the exact date she wrote the public letter, but could not recall when she found out that her friend from school [Friend A] and her parents had been sentenced. The applicant stated that she heard of the imprisonment during the pandemic, which was during the time [Friend A’s] mother passed away.
The Tribunal discussed with the applicant country information assessing the difficulty of bribing border protection agents in order to leave China, and the unlikelihood of a person on an exit control list or of interest on national security grounds being able to leave the country. The applicant stated that the officials are very corrupt, and they had to bribe them otherwise she would not have been able to escape.
After the hearing the applicant’s representative provided a copy of a Notice of Intention to Marry, and a photograph of the applicant’s [child] at church aged about one year.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality: Country of Reference/Receiving Country
[The applicant] claims to be a citizen of China and provided to the Department a copy of the biodata pages of her Chinese passport issued in Shaanxi [in] 2017 and valid to [2027]. The delegate was satisfied that [the applicant] was using her own identity and documents. In the absence of evidence to the contrary the Tribunal is satisfied that [the applicant] is a citizen of China. While initially asserting at the hearing that she has no legal right to return to China, [the applicant] agreed that she is a citizen of China, with household registration in [Village 1] Fujian province. The Tribunal accepts that China is her receiving country for the purpose of assessing her claims for protection. There is no evidence before the Tribunal to suggest that she has the right to enter and reside in any other country for the purposes of the Act.
The relevant law
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.
Analysis, reasons and findings
The applicant’s protection claims are based on her political profile having been involved in preparing and disseminating a public letter critical of the acquisition of land belonging to her parents and other villagers by the local authorities, and on her religious belief and practice.
Political profile
The applicant claims that in [2017] the local government appropriated land farmed by her parents and other villagers, with no compensation, and sold it to a developer. [Later in] 2017 the developer and the police occupied the farmland and forced her parents and the villagers to sign agreements for the transfer of the land; and she, her parents and other villagers were beaten up when they resisted. In June she prepared a letter revealing the corruption which was signed by the villagers whose land had been taken, and she made copies of the letter in mid July and organised for it to be distributed. She became aware in July 2017 that police had found out she was the writer of the open letter, and she became a target of the police; going into hiding and then leaving China with assistance from the [relative] of her schoolfriend [Friend A]. The applicant claims that if she returns to China she will be arrested for anti-government activities, as an example to others.
The Tribunal is prepared to accept that land farmed by the applicant’s family and other families in her village was compulsorily acquired in [2017] by the [Town 1] government for the purpose of redevelopment, described as a socialist [village] with blocks of units and some farming land. The Tribunal also accepts that the land was acquired and sold to a developer for redevelopment, with no compensation paid to the applicant’s parents or other villagers. That evidence has been consistent through her protection application, and is consistent with the independent country information that land disputes are a particularly common reason for protest in China and that disputes arise when local officials try to sell land and evict tenants with low amounts of compensation.[1] The Tribunal is prepared to accept that in the course of the developer taking possession of the land in [2017] over the opposition of the applicant’s parents and some 60 other villagers, they, and the applicant, were injured. The Tribunal accepts the applicant’s evidence that the development has in the 7 years since it was compulsorily acquired been sold.
[1] DFAT Country Information Report: Peoples’ Republic of China, 22 December 2021 (DFAT China Report), 3.88.
The applicant’s evidence was that she, as one of few people in the village with a high school education, was asked to prepare the letter complaining about the acquisition of the land without compensation; and that she had had to write the public letter rather than approach the local petition office because they would have been no help at all. The Tribunal is prepared to accept that as a comparatively well educated resident in the village the applicant became involved in the protest for compensation for the land acquired, in the form of preparation of a document which was signed by others in the village. The evidence is not clear as to whether there was a presentation of any compensation demand to the local authority, rather it suggests that the protest took the form of distribution of multiple copies of the document.
The applicant’s claim is that once she became known as having been the author and distributor of the public letter, she became a target of the police. However the Tribunal has concerns as to the reliability of that claim, in particular whether the impact of any such involvement resulted in the claimed political profile, such that she had to go into hiding.
The applicant’s evidence was that she obtained the signatures from the affected farmers and distributed hundreds of copies of the letter, both public steps. The delay between the writing of the letter and the public distribution of what was said to be hundreds of copies of it, and receiving the information that she was now a target of police, counts against there having been a concerted attempt to take action against her because of her involvement in the writing and distribution of the letter. The only evidence of specific action against her or her family after the writing and distribution of the letter was the evidence of her home being searched and items including her computer seized, and subsequent visits by police to the family home.
The applicant attributes the arrest of [Friend A] and her parents after she left China to their having allowed their home to be used as an assembly place for the local Christian community, with other church attendees signing the public letter which the applicant had drafted at her home. The applicant’s evidence at the second hearing was that their use of their home as an assembly place meant they were seen as behind anti-government activities, namely the writing of the letter and being able to get others to jointly sign the letter.
The Tribunal put to the applicant at hearing a concern that she could recall accurately the date of the open letter as being [a day in] July 2017, whereas she could not recall when she became aware of the sentencing of [Friend A] and her parents, said to have been in November 2017. The Tribunal has considered her response that she obtains information from her parents, and notes her evidence that she is in regular contact with them. The Tribunal is of the view that not to recall significant information concerning the wellbeing of her longstanding schoolfriend, the person who introduced her to Christianity, casts doubt on the reliability of her evidence that [Friend A] and her father are in custody.

The Tribunal does not accept the claim that the applicant’s actions in June and July 2017 resulted in her becoming a target of police on the grounds of perceived anti-government activities such that in order to ensure her safety she had to go into hiding and leave China. Other than a search of her home there is no evidence of ongoing action against her, or her parents. The country information indicates that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.[2] However, the applicant was able to obtain a new passport, and was able to leave China using that passport. Both are steps which, according to the country information, are extremely unlikely for a person with an adverse political profile. DFAT reports that persons suspected of a crime, or of interest on national security grounds, or activists, may be refused a passport on application or prevented from leaving the country due to being on an exit control list. DFAT assesses that if a person is on an exit control list it is very likely and probably impossible that they would be able to leave China.[3] DFAT also reports that it is almost impossible to exit China without authorities’ knowledge, and an ordinary citizen would find it difficult to bribe border protection agents.[4] The Tribunal does not accept that a person whom the PSB regarded as a dangerous person would have been able to obtain a replacement passport, or leave China using that passport.
[2] DFAT China Report, 3.87.
[3] DFAT China Report, 5.32, 5.33.
[4] DFAT China Report, 5.35.
The Tribunal does not accept the claim that the applicant is at risk of serious harm on the basis of her perceived anti-government profile should she return to China. The land acquired from her family and the other villagers 7 years ago has been developed and sold. Her parents now are engaged in fishing, and there is no evidence of harm to them since the events of [this time in] 2017. The applicant readily stated that she could live with them in [Village 1], and would be able to find a job as would her husband. While the applicant stated she would continue to seek compensation, she did not elaborate on what steps she might take; that evidence does not suggest that she would engage in action in that regard, or on any other basis, likely to bring her to adverse attention. Having regard to the non-exhaustive list in s 5J(5) of the type and level of harm that will meet the serious harm test, namely a threat to the person’s life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, the Tribunal does not find that there is a real chance of serious harm for the reason of perceived anti-government activities or political profile should the applicant return to China in the reasonably foreseeable future.
Religion
The applicant’s claim is that she is a Christian, and fears harm from the authorities for practising her religion. She claims she would not be able to practise her religion freely in circumstances where she could be arrested because she would be thought to be challenging President Xi, and if she did not change the way she practises her religion the government would perceive her to be challenging its authority.
The applicant’s evidence at both hearings as to her introduction to Christianity in China in 2013, and her participation in the house church of [Friend A’s] family, was consistent with what is recorded in her statutory declaration of 31 August 2020.
The Tribunal has concerns as to the reliability of some of that evidence.
First, there was no mention of any religious belief or protection claim based on religion in her protection visa application, in which the applicant stated that she had no religion. The Tribunal does not accept her explanation that that is because her protection visa application was prepared by someone else. The remainder of the protection claims in that application are consistent with the claims as developed in the statutory declaration and further elaborated on in evidence at the hearings. The Tribunal considers that if the applicant had held a genuine religious belief in 2017, that would also have been mentioned in the application.
Secondly, the Tribunal is concerned about the inconsistencies in the applicant’s evidence as to her religious practice in China. She told the delegate that there was no evidence of her baptism in 2013 because the church did not give a certificate and there were no photographs taken because that would put her in danger. That is contrary to her evidence at the second hearing that when the police searched her home in 2017 they found photographs of her and other fellow religious believers. The Tribunal does not accept her explanation that what the police found was photographs of other religious believers outside and high school friends.
The Tribunal accepts, based on the letters of support discussed below, that the applicant has been attending the [Church 1] in [Suburb 1] since shortly after her arrival in Australia in August 2017. The Tribunal accepts that her decision to do so may reflect some previous exposure to religious practice in China. The extent, and nature, of any such practice is less clear on the evidence before the Tribunal.
The applicant’s evidence was that [Friend A’s] family’s house church had started in 2008, and while there were not many people in the beginning, it grew to meetings of 50-70 people twice a week. Given the size of those regular gatherings, the Tribunal finds the applicant’s evidence that authorities did not know about the house church implausible. The Tribunal is prepared to accept that there were house church gatherings at the home of [Friend A], a friend of the applicant since school, and that the applicant may have attended those meetings. The Tribunal accepts as plausible the applicant’s evidence at the departmental interview that [Friend A’s] family became implicated in the authorities’ response to the public letter when the villagers turned in their names because of those gatherings. The evidence as to whether the applicant was baptised is equivocal: while she maintained that she had been baptised in 2013, the contradictory evidence as to whether there was a record or photographs of that event, or her church attendance, casts some doubt on that claim. However, having regard to the applicant’s early engagement with the [Church 1] on arrival in Australia, the Tribunal is prepared to accept that she was exposed to Christian beliefs and practices, and may have been baptised, while in China.
In considering the evidence as to the applicant’s involvement in religious practice in Australia since her arrival in 2017, the Tribunal notes that the five letters of support provided before the first hearing include letters from [Elder A] (church elder) and [Person C], who state that the applicant has attended church since 2017. The statement by [Friend B] provided to the Department also states that she has known the applicant since August 2017 through attending the same church. The Tribunal accepts what is said in those letters, and in the other supporting letters which describe the applicant’s activities at church. Four of the letters are from others in the church mothers’ group, and [Elder A] states that the applicant is an active member of that group. The letters confirm the applicant’s regular attendance at church services, and the attendance of her children at the Sunday school classes. [Person C] comments that the applicant studies attentively and learns how to follow the Bible. The photographs provided to the Tribunal show the applicant with fellow mothers’ group members; in prayer group; reading in a group; at a large outdoor picnic gathering; at a love feast; attending a large group in the church hall for a visiting missionary from the USA in December 2023; standing with church elder [Elder A]; and with one of the church directors.
The applicant’s knowledge of Christianity and her beliefs were explored by the delegate in the interview in October 2020, some three years after her arrival in Australia. The applicant was able to recount at the departmental interview a reference to a story in John about an indecent woman; she referred to the holy trinity; and she was able to recite the Lords Prayer. In response to a question as to the main teachings of Christianity, the applicant stated that the Bible is correct, we should listen to God’s words, there is only one God and everything originated from God. Asked how Christianity would be explained to a non-believer the applicant stated that if you believe in God you will be saved and have a peaceful life, that Jesus will return. The applicant explained that only those events in the Bible are celebrated in her church, not Christmas or Easter.
While accepting that the applicant had attended church in Australia, the delegate concluded, based on that evidence, that she did not demonstrate the knowledge or belief in that faith reasonably expected of a genuine practising Christian, and was not satisfied that she was genuine and committed practitioner of the Christian religion in China or that she was a genuine practising Christian in Australia.
The applicant’s knowledge and belief were also discussed at the Tribunal hearings. Her evidence at the Tribunal hearings was similar to that provided at the departmental interview, with less detail, and with an emphasis on God and the Bible, and on her belief that only those who believe in God will be saved. Her evidence as to her involvement at the [Church 1] was that she attends services and Bible study, and church events including the regular love feast.
Having heard and observed the applicant give evidence at the hearings, and having considered the letters in support, the Tribunal accepts that she has formed a strong bond with others in the church, in particular in the mothers’ group. She clearly derives support from her involvement in the church. While her knowledge of Christianity lacked detail, the Tribunal accepts that she genuinely believes central principles of that faith, is taking steps to learn more, and is involved in a range of church activities. The Tribunal finds, based on her evidence as to her activities in the church and the descriptions in the letters of support, that the applicant attends the [Church 1], which is a Protestant church, on a regular basis where she is involved in bible reading, hymn singing, and in Sunday school activities with her children. The Tribunal accepts that at home she engages in private worship activities including online praying and Bible reading, and that she prays and reads the Bible.
The Tribunal accepts the applicant’s evidence, which is supported by the photographs and the letters of support from [Elder A] and [Person B], that her children attend Sunday school. The Tribunal finds that given the young age of the children, [specified], they attend these activities in accordance with the applicant’s wishes, and with the support of their father, rather than through independently held religious beliefs. The Tribunal accepts that the applicant’s children are not baptised, and that baptism is a choice the children will make when they are old enough to make that choice for themselves.
The applicant’s evidence was that she evangelises. Asked for clarification as to what she meant by that term, the applicant stated that in her daily life she talks to people she runs into. The applicant stated that if she returns to China she would share ideas and tell people what is the real church.
The Tribunal finds that if she returns to China, the applicant would live in Fujian province. She was born in [Village 1], [Town 1] Fuqing City; and stated at the second hearing that she would return to live with her parents there. The Tribunal accepts that while her parents are not Christian, they do not oppose the applicant’s religious beliefs. The Tribunal finds that if returned to China the applicant would seek to continue to practise her religion, but not in a registered church. The Tribunal accepts the applicant’s evidence that she would try to find a house church and attend house church gatherings so as to practise her religion in community with others. There is no suggestion in her evidence or in any of the supporting letters that the applicant has a leadership role in church activities, and none of the letters of support mention any involvement in preaching or proselytising. The Tribunal finds that the applicant would attend house church gatherings as an ordinary member of the church and not as a leader. Based on her explanation as to what she meant by the term ‘evangelise’, the Tribunal finds that while she would seek to engage people in conversations about her beliefs, she would not proselytise or preach in public. The Tribunal finds that the applicant would continue to practise private worship, such as reading the Bible and praying, at home. The Tribunal has found that while the applicant would like her children to grow up as Christians, and is educating them in Christian beliefs through attendance at Sunday school and through her [child A’s] enrolment in a Christian primary school, she is allowing them to make their own choice about baptism at an appropriate age.
The Tribunal has considered whether these findings about the applicant’s religious worship activities should she return to China would expose her to a risk that she would come to the adverse attention of the authorities or be at risk of harm.
The independent country information is that there are five officially recognised religions in China, namely Buddhism, Daoism, Islam, Catholicism and Protestantism; and that each is associated with and managed by a ‘patriotic association’ or government sanctioned church.[5] DFAT reports that Christianity is growing rapidly in China, and the Chinese Government, whose figures count only those Christians worshipping at officially registered churches, reports there are 38 million Christians in China. The 2020 US Department of State International Religious Freedom Report estimated there are 70 million Christians throughout China, although higher estimates also exist.[6] Under Xi Jinping, China has introduced a renewed campaign to 'sinicise' religion. The Chinese Communist Party oversees the campaign to sinicise through the United Front Work Department and it is carried out through registered state sanctioned religious organisations. DFAT reports the purpose is to ensure 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.[7]
[5] ‘State-Controlled Religion and Religious Freedom Violations in China’, Mingzhi Chen, United States Commission on International Religious Freedom (USCIRF), 19 December 2022,p 1, 20230105101952.
[6] DFAT China Report, 3.28.
[7] DFAT China Report, 3.24.
DFAT has reported that authorities have regulated Christianity in China to make it more 'China-orientated', including replacing sacred images in churches, such as the Virgin Mary, with portraits of Xi Jinping. Since about 2015 the government has engaged in a campaign to remove visible symbols of Christianity from church buildings, with both Catholic and Protestant churches affected. Between 2015 and 2021 the Christian media reported crosses on buildings were consistently removed across a wide geographical spread of provinces.[8] DFAT reports that Bibles are increasingly difficult to obtain and Bible references are censored online. Plans for authorities to re-translate the Bible or issue state commentary have been reported by the media but not implemented to date.[9]
[8] DFAT China Report, 3.29.
[9] DFAT China Report, 3.29.
The US Department of State reports that in March 2022 the Measures for the Administration of Internet Religious Information Services came into effect, banning unauthorised domestically generated online religious content and prohibiting overseas organisations and individuals from operating online religious information services in China without a permit.[10]
[10] 2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang United States Department of State, 15 May 2023, section II, 20230516091411.
The Three-Self Patriotic Movement (TSPM) is the official governing body for Protestant churches in China. 'Three-Self' reflects the church's three principles of self-administration, self-financing, and self-evangelisation. The Three-Self Church comes under the authority of the Chinese Communist Party's United Front Work Department and is the single state-sanctioned Protestant church in mainland China.[11]
[11] DFAT China Report, 3.32.
DFAT’s assessment of the position of Protestants in China is as follows:[12]
DFAT assesses that Protestant Christians face a moderate risk of official discrimination and are unable to practise their faith freely. Members and particularly leaders of large underground churches are most susceptible to such discrimination, and anyone who has linked their faith to politically sensitive subjects faces a higher risk. DFAT assesses that Protestant Christians face a low risk of societal discrimination.
[12] DFAT China Report, 3.35.
DFAT reports that most Protestants worship in unofficial 'house' churches, which are underground gatherings in a house or a commercial space. DFAT advice is that in recent years the government has increased efforts to force these church groups to submit to the authority of the TSPM, teach Party-aligned doctrine, cut off association with foreign churches, and subject the appointment of leaders to rules set out by the TSPM. DFAT reports that churches that have not aligned with the TSPM have been closed or threatened with closure. DFAT is also aware that house churches have been pressured in other ways, including having their electricity cut off, or using landlords to evict members. DFAT reports that the larger the congregation, the greater chance that it would attract official attention, leaving smaller groups to meet in private for unauthorised religious discussions.[13]
[13] DFAT China Report, 3.33.
As discussed with the applicant at the hearing, the country information indicates that while the situation is variable, an individual’s ability to practice their religion depends on where and how they do it, and that leaders of churches are more likely to have problems with authorities than ordinary worshippers. DFAT reports that the situation for Protestants differs from place to place and amongst different communities, and some Protestant communities have been largely unaffected by increased government oversight and have been able to continue their usual worship activities and practices without interference. Smaller churches not linked to any central authority are less likely to be seen as a threat to the state and thus to be targeted.[14] According to the Immigration and Refugee Board of Canada, most Protestants worship in unofficial house churches which are not officially recognised but are able to operate so long as they are careful and keep a low profile. Smaller house churches are likely to able to operate without interference from the authorities, and it is larger churches with larger congregations that are most likely to receive attention.[15]
[14] DFAT China Report, 3.33-3.34.
[15] China: Treatment of members of house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019-October 2021), Research Directorate, Immigration and Refugee Board of Canada, 18 October 2021, CHN200760.E.

Various sources have reported on the arrest and detention of members or leaders particularly of unregistered house churches, criminal prosecutions (including ostensibly for fraud offences), and efforts to hinder or repress Christian practices. The Immigration and Refugee Board of Canada reports that churches operating on the south-eastern coastline experience less restriction, although Zheijiang province has seen repressive actions against registered churches.[16] The United States Department of State International Religious Freedom Report for China refers to the treatment of Christians, including reporting about specific incidents of arrests and detention of leaders and members of religious groups, and government continuing to close down or hinder activities of religious groups not affiliated with state-sanctioned religious associations.[17] Amnesty International in its January 2023 submission to the United Nations Committee on Economic, Social and Cultural Rights mentioned crackdowns on house churches across China since 2018, particularly in Henan, Zhejiang, Guandong and Heilongjiang provinces.[18] The Human Rights Watch 2022 Annual report provides a summary of the treatment of house church members and leaders and the impact of new government regulations, reporting that police continue to harass, arrest and detain members of house churches, and that the Measures on the Administration of Internet Religious Information Services have disrupted reliance on online religious gatherings and information.[19]
[16] 'China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)], by the authorities and the Public Security Bureau (PSB); the revised regulation on religious affairs in 2018, including restrictions on Patriotic Churches (2020–April 2022)
[17] 2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang United States Department of State, 15 May 2023, section II, 20230516091411. Most of the examples cited relate to actions taken in Shaanxi, Shanxi, Jilin, Ningxia, Guandong, Yunnan, Zhejiang, Liaoning and Hunan provinces against church pastors; one example refers to the banning of a specific church in Putian, Fujian province.
[18] China: Submission to the UN Committee on Economic, Social and Cultural Rights (2023) 17 January 2023, p 5 20230118112321.
[19] Human Rights Watch World Report 2023, 12 January 2023, p 153 20230112144355.
National laws allow each provincial administration to issue its own regulations concerning religious affairs, including penalties for violations; and in addition to the five officially recognised religions local governments may at their discretion permit followers of certain unregistered religions to carry out religious practices.[20] The situation for Christians practising religion in Fujian has generally been more liberal than in many other parts of China; and while the restrictions being imposed by the CCP on religion are intensifying, Fujian province tends to see a more liberal approach to religious regulation than many other places provided people do not challenge the interests or authority of the CCP.[21]
[20] 2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang United States Department of State, 15 May 2023, section II, 20230516091411.
[21] China: Christian proselytism; treatment of Christians who proselytize, particularly in Guangdong and Fujian (2016-October 2018) Research Directorate, Immigration and Refugee Board of Canada, Ottawa CHN106166.E, 3.2.
The Immigration and Refugee Board of Canada reports that religious proselytism is restricted by the Chinese authorities, and that public proselytism is not permitted. While there are regulations prohibiting proselytising, the law does not define what constitutes proselytising.[22] The Immigration and Refugee Board of Canada notes that sources report that proselytism is actively going on, but not openly and publicly; rather it is done through interpersonal relationship networks. There are some reports of arrests and harassment, however consequences vary, as some officials take a less hard line approach and may simply pay a visit or ask a person to tone down their activities. [23]
[22] Country Policy and Information Note China: Christians, UK Home Office, March 2024, 7.5.
[23] China: Christian proselytism; treatment of Christians who proselytize, particularly in Guangdong and Fujian (2016-October 2018) Research Directorate, Immigration and Refugee Board of Canada, Ottawa CHN106166.E, 3.
The Tribunal has considered the applicant’s statement that there is no religious freedom in China, and she should not have to practise her religion in a low key way. The Tribunal accepts that there is a distinction between the nature of worship in TSPM, or ‘official’, churches, where the country information indicates that the CCP exerts its authority over worship practices and content, and unofficial churches. As noted above, most Protestants worship in unofficial house churches which are not officially recognised and can conduct their worship services as they see fit. The Tribunal has found that the applicant would attend house church services, and continue her private worship practices.
The Tribunal acknowledges the DFAT assessment that Protestant Christians ‘are unable to practise their faith freely’. The Tribunal accepts that there are now restrictions on participation in online religious activities so that online religious activities have reduced significantly, and that that would likely impact on the applicant’s ability to continue that part of her present religious practice.[24] However, based on the independent country information the Tribunal accepts that the applicant would be able to continue her practice of private religious study, including her children and her partner, and engage in house church gatherings. The Tribunal is satisfied that as someone without a leadership or public profile in the church, she would be able to continue low key discussions with others. Other than the recent limitation in online activities, the evidence before the Tribunal is that the applicant would be able to continue to practise her religion and hold religious beliefs in the way she wishes.
[24] 2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang United States Department of State, 15 May 2023, section II, 20230516091411.
Having considered all the evidence before it, based on the findings and the country information discussed above, the Tribunal finds that any risk of adverse attention associated with the applicant participating in religious activities would not rise to the level of a real chance of serious harm.
The Tribunal finds that if the applicant returns to China in the reasonably foreseeable future she would not face a real chance of serious harm arising from her religious beliefs and practice as a Christian.
The applicant’s children
The applicant fears harm for her children, who she described as having come to know God at a young age, that they would not be permitted to engage in religious education or activities if they left Australia and went to China.

100. The applicant’s children are not included in her application. The applicant did not inform the Department, nor did she disclose to the delegate at interview in response to the question about who she lived with, that she had [number] children, [one] of whom had been born [time period], and that she was at the time of that interview living with the father of her children.
101. The status of the children was discussed at the Tribunal hearing. The NSW Birth Certificates provided to the Tribunal before the first hearing confirm that [the applicant’s] children were born in Australia. At the first hearing the applicant stated that she had not tried to obtain registration such as a Chinese ID document or hukou for them. She accepted that as children born to parents who are citizens of China they would be Chinese citizens. That is consistent with country information that the PRC Nationality Law provides that if one or both parents have Chinese nationality, an overseas born child will also have Chinese nationality; and that overseas born children may apply for recognition of nationality and accordingly hukou registration.[25] Country information indicates that following amendments in 2021 to the Population and Family Planning Law couples may have three children, and fees and penalties for out of plan children have been abolished.[26] Based on the evidence provided at the second hearing that the applicant and her partner are planning to marry, the Tribunal is satisfied that if the applicant returns to China, there would be no barrier to her children and her partner going with her.
102. The country information on the Regulations on Religious Affairs introduced in China in 2018 confirms that there are restrictions on religious education and practice. The US Department of State reports that these regulations are the basis for prohibitions on participation in religious activities and receiving religious education for people under 18 which are implemented by either the state-sanctioned religious associations such as the TSPM in terms of Protestant Christians, and local government bureaus. Only the five state-sanctioned religious associations or their affiliates are permitted to form and register religious schools.[27] Implementation and enforcement varies from place to place, and each provincial administration is allowed to issue its own regulations concerning religious affairs including violations.[28]
103. The extent to which the prohibition on religious education for children is enforced in relation to the activities of unofficial churches is not clear on the available material. An article on the World Watch Monitor website dated 8 September 2017 refers to the TSPM in Fujian being told to report any activity held in registered religious venues or requests for permission to hold events in unregistered venues.[29] That article comments that almost all churches in China have a Sunday school, and that authorities turn a blind eye to this. There are some reports of actions against churches or kindergartens attached to churches in Fujian being investigated or demolished by authorities, and a report of a house church preacher being issued with a court summons and a report of children being banned from attending a Christian camp.[30]
104. The applicant’s children are young, too young on the applicant’s evidence to be able to claim an independent religious belief required for baptism. The Tribunal acknowledges that, based on the letters of support, in particular that by the Sunday school teachers, the applicant’s children attend Sunday school at the [Church 1]. The photographs confirm that they participate in a range of activities there. Most of the photographs provided to the Tribunal are recent, taken in 2022 and 2023; one photograph of the applicant’s [child A] provided after the hearing shows [the child] at a younger age. The Tribunal does not accept that the applicant’s children would not be able to learn about Christianity if they went to China in the reasonably foreseeable future. The Tribunal has found that the applicant would continue with her home based religious worship and Bible study, and is satisfied that she would continue to involve her children in that. The Tribunal does not have evidence before it about whether the house church gatherings the applicant would attend in [Village 1] [Town 1] have a Sunday school attached to them. Based on the limited evidence before it, the Tribunal finds that the applicant’s children would be able to attend Sunday school if one exists as part of the house church gatherings. Even if, contrary to that conclusion, the applicant’s children were not allowed to attend Sunday school for some reason, having found that they would be able to undertake private worship activities at home and continue learning about Christianity at home, the Tribunal does not consider that this would amount to harm.
105. The Tribunal has considered whether the applicant’s attendance at the [Church 1] in Australia and her involvement in the church community activities would result in her facing harm from the Chinese authorities if she returned to China in the reasonably foreseeable future, even though she did not make such a claim. The DFAT country information does not indicate that attending a mainstream Protestant church in Australia would put a person at risk of serious harm on their return to China. There is nothing to indicate on the material before the Tribunal that the [Church 1] is connected to any religious movements in China that are illegal in China, or is regarded as a ‘cult’.[31] Accordingly, the Tribunal finds that the applicant would not face a real chance of serious harm arising from those circumstances if she returned to China in the reasonably foreseeable future.
Conclusion
106. Based on the findings above, and the country information referred to above, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future that she faces a real chance of serious harm for reasons of her religion, or for any actual or imputed political profile.
107. The Tribunal is required to consider the totality of the circumstances, and to consider whether the cumulative effect of a number of ‘lesser’ harms, which of themselves do not constitute persecution, may lead to the conclusion that the combined effect of the harm is sufficiently serious to constitute persecution.
108. As noted above, DFAT assesses that the risk of official discrimination for Protestant Christians is higher for those who have linked their faith to politically sensitive subjects.[32] The applicant has claimed that she was able to obtain the signatures for the public letter in 2017 from the farmers whose land had been taken and who were church attendees; and that she came to adverse attention from the authorities because those farmers disclosed her involvement. The Tribunal has not found that the applicant faces a real chance of serious harm because of those perceived anti-government activities now 7 years ago, or for the reason of her religious belief and practice. The Tribunal has considered whether any combined and sustained effect of harm directed at the applicant for reasons of any perceived anti-government profile together with the accepted continuation of the applicant’s religious practice on return to China, amounts to ‘serious harm’. Having regard to the instances identified in s 5J(5), the Tribunal is not satisfied that it would amount to serious harm.
109. Taking into account the above findings and the country information referred to above, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future that she faces a real chance of serious harm for reasons of her religion or any actual or imputed political opinion, or for any other reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, and is not satisfied that she meets the definition of refugee in s 5H(1). The Tribunal is not satisfied that she is a person in respect of whom Australia owes protection obligations under s 36(2)(a).
[25] ‘Country of Origin Information Report China’ Ministry of Foreign Affairs (Netherlands) 1 July 2020, p 17, 20200929115756.
[26] DFAT China Report, 3.119.
[27] 2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang United States Department of State, 15 May 2023, section II, 20230516091411.
[28] 2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet and Xinjiang United States Department of State, 15 May 2023, section II, 20230516091411.
[29] DFAT China Report, 3.53-3.78.
[32] DFAT China Report, 3.35.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons as set out above in relation to whether the applicant faces a real chance of serious harm, the Tribunal finds that the applicant does not face a real risk of significant harm as defined in s 36(2A)(a), (b), (c), (d) or (e) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

112. The Tribunal affirms the decision not to grant the applicant a protection visa.
Linda Pearson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Research Directorate, Immigration and Refugee Board of Canada, CHN200992.E.

[2024] AATA 3458

23 May 2024

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