2018596 (Refugee)

2018596 (Refugee) [2024] AATA 2698 (30 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Harry Huang (MARN: 9579277)
CASE NUMBER:  2018596
COUNTRY OF REFERENCE:                   China
MEMBER:Christine Cody
DATE:30 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Statement made on 30 April 2024 at 9:03pm

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – religion – Christianity – original claim by first applicant mother – detained after confrontation with former teacher now government official during return visit – church membership in Australia and boyfriend’s in home country – reported by boyfriend after his arrest – credibility – visa and study history, including period as unlawful non-citizen – applied after birth of child and civil marriage – vague and inconsistent claims and evidence, delay in applying for protection, little official or documentary supporting evidence and superficial explanations – activities, including taking second applicant child to church, engaged in to obtain protection visa – child’s recent circumstances – church school, church and personal activities – country information – children barred from participating – small but real possibility of persecution in all areas of country – mother as member of family unit – husband/father’s separate application on different grounds refused, with no mention of religion – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1), (6), 36(2)(a), (aa), (b)(i), (2A), 65, 424A
Migration Regulations 1994 (Cth), r 1.12(4), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 November 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants were represented by the same agent before the Department, and in relation to the review.
The applicants, a mother (the applicant) and child, who claim to be citizens of China, applied for the visas on 12 January 2016. It was claimed that the applicant was a Christian. [Mr A], born in [Year], married the applicant on [Date]. He is the father of the child. He lodged his own protection visa application separate to the applicant and child; his application, made on different grounds, was refused.
After an interview with the applicant the delegate refused to grant the visas on the basis that the applicant’s claims to be a Christian and to have experienced harm in China were not credible and were not true.
The applicants lodged an application for review to the Tribunal. The “first Tribunal” affirmed the decision under review in a decision dated 16 January 2020 (AAT case number 1620513). The Federal Circuit Court of Australia (FCCA) set aside the first Tribunal’s decision on 12 January 2021 for the reason that:
The MICMSMA concedes that the decision of the Tribunal dated 16 January 2020 (AAT case number 1620513) is affected by jurisdictional error. Specifically, the Tribunal failed to give proper, genuine and realistic consideration to corroborative evidence in the witnesses' statements as its reasons at [40] do not grapple in any meaningful way with why the witnesses would—essentially untruthfully—claim that the applicant had started attending the church in 2013, attended nearly every week since, been baptised in 2014, and was a genuine Christian: see BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94. It was a matter for the Tribunal to accept, or to reject, the witnesses’ evidence, but it was not permitted to reject that evidence out of hand, even if it held significant doubts about the applicant’s credibility. This error was material to the outcome of the review as, had the Tribunal given proper consideration to the witnesses’ evidence, it may have accepted that the applicant started attending church in 2013 and may have accepted she had been baptised.
The matter is now before the (current) Tribunal pursuant to the order of the FCCA.
The issue in this case is whether the applicants have a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and whether there is a real chance that if the applicants were returned to China now or in the reasonably foreseeable future, they would be persecuted for one of those reasons. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicants will suffer significant harm as defined in s.36(2A) of the Act. In the alternative, the Tribunal must consider whether either applicant is the member of the same family unit of a person who meets s 36(2)(a) or (aa).
The Tribunal has found that the applicant is not a witness of truth. She has engaged in activities including attending church and religious activities, and encouraged her child’s involvement in Christianity, for the purpose of obtaining protection visas. The Tribunal has not accepted that she is a refugee or entitled to complementary protection. However, when considering the child’s particular circumstances in the context of the country information, the Tribunal has concluded that the matter should be remitted for reconsideration (with the mother’s application on the basis that she is a member of her child’s same family unit). The Tribunal’s reasons are set out below.
The applicant’s migration history[1]
[1] Source: the delegate’s decision record provided to the tribunal by the applicant, passport and application form
The applicant’s passport was issued [in] 2007. She arrived in Australia [in] March 2008 on a TU-571 Student visa. This visa was granted on 29 February 2008 and expired on 02 June 2008. A subsequent TU 571 Student visa was granted on 02 June 2008 and ceased on 21 March 2011.
(On her own evidence) the applicant ceased studying sometime in 2009 yet remained in Australia, and when her student visa ceased, she remained unlawfully present for 4 years and 10 months, until 19 January 2016 when she was granted a bridging visa in association with her application for a protection visa.
Departmental file[2]
[2] There is no non-disclosure certificate on file
The applicant lodged the protection visa application forms and accompanying documents: statements dated 12 January 2016, certified copy of marriage certificate between the applicant and her husband showing that they were married on [Date] by a marriage celebrant, the birth certificate for the child born [Date], now aged [Age] years, and stamped pages of her passport.
Application form for applicant signed 12 January 2016
The applicant makes the following claims in her form:
·     She was born in Fuqing, Fujian, China in [year] and she resided there until she came to Australia aged [Age] years. Her religion is Christian and her ethnicity is Han.
·     She attended school in China, withdrawing from her high school in March 2008 when she came to Australia. She departed China on [Date 1] March 2008 and arrived in Australia legally on [Date 2] March 2008 as the holder of a student visa.
·     She speaks, reads and writes in Chinese only [the lack of reference to any English was inconsistent with her claim that in Australia she attended an English and high school course at [Provider] (from March 2008 to December 2009)].
·     She undertook odd jobs in Australia between June 2008 to July 2015. From July 2015 she was unemployed.
·     Since her first arrival, she returned to China, departing Australia [in] July 2009 and returning [in] August 2009.
·     She is in contact by telephone with her parents and brother in China.
Application form for child
The child’s parents are the applicant and her husband who are Chinese citizens. The child’s ethnicity is Chinese Han and his religion is Christian.
No claims to fear harm were made on behalf of the child.
The applicant’s statement dated 12 January 2016[3]
[3] In her second statement of the same date she confirmed that she was fully aware of the contents of the statement
The applicant’s statement is summarised below:
·     Her mother contacted an agent without the applicant’s knowledge to apply for her to go to Australia to study.
·     The applicant found out and could not concentrate so failed her English exam.
·     Her English teacher [Mr B] invited to coach her for make-up exam. He was notorious for flirting with female students on campus and had shown interest in her. She attended his room and was surprised that he tried to assault her. She was saved by her classmate [Mr C] who reported the teacher to the police. [Mr B] was dismissed by the school and was arrested by the Public Security Bureau (PSB).
·     The applicant and [Mr C] started a relationship however the applicant travelled to study in Australia. She heard that due to corruption [Mr B] was not punished.
·     When she returned to visit in July 2009 she discovered [Mr B] was now a government officer. She was in a public place with [Mr C] when there was a confrontation with [Mr B]. On [Date 1] July 2009, she and [Mr C] were wrongfully arrested because of [Mr B].
·     From [Date 1] July 2009 to [Date 1] August 2009, the applicant was detained at Fuqing Detention Centre for 7 days in total. She was mistreated and threatened. Her mother organised a bribe for her to be released.
·     On [Date 2] August 2009, she returned to Australia again on a student visa. Around October 2009, she learned from her mother that [Mr C] was sentenced to 5-year imprisonment. She completely lost confidence in life. She terminated her study around December 2009.
·     During following years, she did not have any specific aims but just bumbled through life.
·     In 2013, she was brought to [Church 1]. On 26 January 2014, she was baptised. She became a devout Christian.
·     After [Mr C] was released she evangelised to him: she preached Christianity to him via QQ (an instant messaging app) via the internet. She also sent him a Bible and materials about Christianity.
·      [Mr C] became a Christian and activist of the underground church. The police were looking for him and found the Bible as well as the promotion materials the applicant had sent to him.
·     [Mr C] was finally arrested by the police at the end of 2015 when he intended to leave China. He had to confess everything to the police. The applicant said that this meant for her that: As a result, I have been regarded as a dangerous person who has seriously threatened or harmed state security by the Chinese government. Therefore, I must be subjected to persecution if I go back to China.
Further documents in support
The applicant sent further documents to the Department by way of a letter from the agent dated 19 September 2016, the day before the interview, as follows:
·     Photographs of the applicant and her husband apparently at a Baptism;
·     Supporting statement from [Ms D] dated 17 September 2016 with translation. She states she is a member of [Church 1]. She knew the applicant from January 2014, during baptism training sessions. After her baptism the applicant has been attending Church Sunday services and Saturday night Bible study frequently. The applicant has advised her that she uses religion in bringing up her child and she encourages others.
·     Supporting translated statement from [Mr E] dated 11 September 2016. He and his wife [Ms F] were the neighbours of the applicant, his wife promoted the Gospel to the applicant, they took her to church in March 2013 and since then they attended Church meetings together. The applicant actively participates, was baptised, she helps do the cleaning and keep the church tidy.
Interview with the delegate and the Delegates decision record
On 20 September 2016 the applicant attended an interview with the delegate. She made no claims on behalf of her son, stating that he was just a dependent. Some of the contents of that interview are contained in the delegate’s decision record which have been set out below for ease of refence (other evidence not recorded in the decision record is also referred to in this decision record where relevant):
· The Applicant was asked how she practised her religion in Australia; she replied that she read the Bible and prayed to God. She said that she liked attending gatherings and communicating with the Brother and Sisters. She said that she liked to serve the church. She said that she is a Protestant and she attended the church every Saturday night, Sunday and any main gatherings at the church.
· The Applicant was asked if she was a Christian when she was in China. She replied in the negative, consequently the Applicant was asked why she became a Christian in March 2013, given she has been living in Australia since March 2008. To this the Applicant replied that it was because when she came here she did not know what she was doing. She proceeded to say that at the end of 2012 her neighbour started preaching gospel to her.
The delegate considered that significant elements of her testimony were vague, generalised and lacking in specific detail, that she was not a satisfactory witness, and she delayed in applying for protection. The concerns included:
- The Applicant indicated at the interview that her parents and her younger brother were living in China. At the interview, the Applicant was asked about her last contact with her family, to this she stated that she spoke to her mother last week Thursday (15/09/2016). However, later at the interview she contradicted this information when she stated that her mother only communicated with her every fifth day of the month. She also stated that her mother would ring her because she dare not ring her parents because the Chinese government would eavesdrop on their conversation. The Applicant also mentioned at the interview that her parents were unemployed, despite her claim that she communicated with her mother every fifth day for the month; she claimed not to know how they were able to survive and support her brother in China without an income.
- In her Protection visa application, the Applicant had mentioned that her husband [Mr A] was refused a protection on 28/05/2014 by the Department. The Applicant said that her husband worked in a [workplace] for three to four days a week. She mentioned that she met her husband in December 2014 at a church and began a relationship with him in 2015. Later at the interview, she changed this statement to say that she first met her husband in December 2013 and began living together in 2015.
- The Applicant was asked at the interview why she did not approach the Department to regularise her visa status when her Student visa ceased in 2011. The Applicant replied that she did not know, she was confused, weak at the time and felt lost. The Applicant was asked why she did not return to her country when she stopped her studies in Australia in 2009. The Applicant replied that she dare not go home because she will be arrested by the Chinese authorities. The delegate considered that was able to live and probably work in Australia for a substantial period of time. Furthermore, despite her claim that she did not want to return to her country in 2009 because she was afraid that she would be arrested by the Chinese authorities, the Applicant made no attempt to apply for any other visas to regularise visa status and/or lodge a Protection visa sooner if she had a genuine fear of persecution in her country. It is indicative to note that the Applicant had declared at the interview that she knew about the protection visa since she arrived in Australia.
- The Applicant was asked why she was seeking protection in Australia, to this she replied that
she was afraid to go back because the Chinese government had identified her as a dangerous person and a threat to the security. She said that she would have no freedom if she returns to her country. Consequently, the Applicant was asked why she was considered as a dangerous person by the Chinese authorities, the Applicant replied that it was because she preached to the Chinese people therefore she was identified as a dangerous person. However, when the delegate asked her how she preached, her evidence was very basic (I tell them to believe in God).
·The Applicant was asked why she sent the Bible and Christian materials if she knew that they were banned by the Chinese authorities, to this she said that she wanted them to know more about Christianity. Consequently, it was put to the Applicant that there was no information to suggest to the Chinese authorities that she was the one who had sent the materials to her friend, to this the Applicant replied that [Mr C] had reported her to the police. When questioned further on this matter, she said that he was arrested by the police. At the interview, the Applicant was asked how she knew the absolute details about [Mr C]’s situation, i.e. his activities, arrest etc. in China. The Applicant replied that the police had told her mother about [Mr C]. Consequently the Applicant was asked why the police would tell her mother all the personal details about [Mr C]. The Applicant responded that the Chinese police went to her place and asked her to surrender herself. I find it farfetched and unreasonable that a police officer would divulge every activities of [Mr C] to the Applicant’s mother which would have been considered as confidential.
·There were other discrepancies and inconsistencies in the Applicant’s responses for instance she claimed that an arrest warrant was issued against her. When asked for evidence, i.e. arrest warrant, the Applicant indicated that her mother had sent it to her and it was on its way. However to-date no evidence has been received from the Applicant or her representative in regard to this matter. It is also indicative to note that the Applicant later at the interview changed her testimony and indicated that the police showed the arrest warrant to her mother and then took it away. However I find this assertion is in contradictory to her earlier verbal testimony which suggested that her mother had posted the arrest warrant to her.
·Even though the Applicant claimed that she attended church in Sydney, she has not provided any supporting letters from the pastors or elders of her claimed church in Australia. The Applicant has provided two support letters. However this alone is insufficient to confirm the Applicant’s attendance to [Church 1]. Further to this, the Applicant claimed to have been baptised at this church, however she provided no evidence to substantiate this claim.
·In my assessment of the Applicant’s claim in regard to her proselytising of her Christian faith to her parents and friends in China, I find it implausible that the Applicant who had claimed to
have been a Christian since March 2013 and had claimed to have attended [Church 1] on a regular basis was unable to provide any significant
information about her Christian faith to the people she claimed to have preached in China. It is
indicative to note that the Applicant was given several opportunities to explain about how she
was able to evangelise her faith to the people in China. Based on the Applicant’s testimony I
am not convinced that she had proselytised to her family or her friend and his wife in China. I am of the opinion that a person who wished to proselytise would have a certain degree of
knowledge about the religion and some crucial information about Jesus Christ, his miracles etc. In considering the Applicant’s activity in proselytising of the Christian faith in China and in
Australia, I find her responses at the interview did not indicate to me that she possessed a
certain degree of knowledge that I would expect of a person who has the intention to
proselytise and convert people in China and Australia. Though I accept that the Applicant had
provided some information about Christianity at the interview, however I am of the opinion that it was prepared for the purpose of this interview.
·At the interview, the Applicant indicated that she knew about the Protection visa (PV) application since she came to Australia. She said that she did not even think about applying did not lodge a Protection visa application when her Student visa ceased. She said that after 2009
she was like a dead person; she did not have any thoughts. However I do not accept this
explanation. I am of the opinion that this story was created in an attempt to justify the delay in
the lodgement of a PV application. Despite being aware of the existence of the Protection visa
in 2008 and having fears of returning to her country since 2009, she only lodged the PV
application nearly seven years later. The Applicant claimed at the interview that she had a valid Student visa at the time, even if I was to accept the Applicant’s assertion, however it is
indicative to note that her Student visa ceased in March 2011 and the Applicant continued to
delay the lodgement of a PV application for nearly five years and continue to live in Australia as an unlawful non-citizen.
·The evidence suggests that if the Applicant was considered to be of any concern when departing China to return to Australia, it is unlikely that she would have been able to exit China and travel overseas. There is no objective evidence to indicate that the Applicant holds a profile that would attract adverse attention from the authorities if she were to return to China. Rather, the evidence is to the contrary.
·I am of the opinion that her reason in lodging a PV application was for the purpose of seeking a migration pathway so she can stay permanently in Australia

The delegate did not accept that the applicant was a refugee or entitled to complementary protection. The delegate accepted that the child is a citizen of the People’s Republic of China[4], but found that he relied upon his mother’s claims which were unsuccessful.
[4] Country information (CX105145) reports that under Articles 4 and 5 of the Chinese Nationality Law, “… any person born in China or abroad whose parents are Chinese nationals or one of whose parents is a Chinese national has Chinese nationality.”
The first Tribunal
The applicants lodged an application for review on 2 December 2016. They provided a copy of the delegate’s decision record and notification of refusal.
The applicants were invited to attend a hearing and indicated that a witness [Ms G] would attend.
On 10 December 2019 the agent forwarded to the first Tribunal a supporting letter from an elder of [Church 1], a director of [Church 1], 2 supporting letters (including from the witness) and photographs of the applicant (apparently) at church/religious settings with the child and alone reading the Bible, praying, eating and speaking with others. The child was present from a young age, at different stages while he was growing up, including attending congregations for children holding signs as a young child stating We are Christians, we don’t celebrate Halloween.
The letters stated:
·     From [Mr H] dated 10 December 2019. This was not on letterhead and the Tribunal was not able to speak to him as he had passed away. He states he is an elder of [Church 1] and an Australian citizen. Since the applicant has come to the church, she has consistently attended weekly church services. Following her baptism in January 2014, she has also shown increasing commitment in her regular attendance of Saturday night Bible Studies.
·     From [Mr I] dated 07 December 2019. This was not on letterhead. He states that he is one of directors of [Church 1], an Australian citizen. The applicant came to the church and was baptised in January 2014. She continues to attend our church service every week and shows increasing commitment in her regular attendance of Bible study held on Saturday evenings.
·     From [Ms G]. She is a member of Christian of [Church 1], she met the applicant at church in 2013, sees her at church, and she is a genuine Christian.
·     From [Ms D] dated 9 December 2019 (similar to his earlier letter provided to the Department in 2017.
The applicant and her witness gave evidence at the hearing before the first Tribunal on 20 December 2019 (the Tribunal has considered the transcript and the evidence is referred to when relevant).
The applicant’s evidence to the first Tribunal includes the following which caused concern for the current Tribunal[5]:
- The applicant stated she was detained for 7 days between 21 July 2009 and 3 August 2009. The Tribunal put to her that in her statement she said she was detained between 27 July and 3 August. She then stated that she had said she was detained from 27 July.
- She also stated there was an arrest warrant that was lost when her mother sent it
to her around January 2017 after she had talked to the migration agent about applying for a protection visa. The Tribunal put to her that she did not say in her statement there was an arrest warrant. She stated her agent told her she needed to provide materials.
- The applicant said she stopped studying in December 2009. The Tribunal put to her that the Department of Immigration said she stopped studying on 10 July 2009 which was before she returned to China, before she was allegedly detained. She stated when she returned from China she studied sporadically; before December 2009 she sporadically attended school and did not attend regularly every day, however before she went to China she attended class regularly
- The applicant said her husband also went to church. The Tribunal put to her that he applied for a protection visa application that never mentioned he was a Christian. She stated she did not know about his application.
- The Tribunal asked why she delayed by nearly 5 years in applying for a protection visa after her student visa ceased in 2011. She stated she was not a bold person and after her friend was detained her life lost orientation.
The witness stated that the applicant and her husband (and son) had been coming to Church since 2013.
The first Tribunal thereafter forwarded a s424A letter on 23 December 2019, expressing concerns about the applicant’s claims about her husband and her studies, as follows:
When you ceased school
At departmental interview on 20 September 2016 where you said you understood the
interpreter the following conversation took place between you and the department:
Q. And according to our departmental date base, you last studied on 10 July
2009, is that correct?
A. Yes, December.
Q. No it says in July 2009 you stopped studying. The departmental database
indicates that the last study you had was 10 July 2009.
A. I didn’t stop, I went to school I didn’t there go often but I go there.
Q. So you’re telling me you studied until December
A. On and off
Q. Because I hope you are aware that we get information from the school that
you go and if you do not attend the school then we will get that information or if your attendance is unsatisfactory.
Your husband’s protection visa application
The Refugee Review Tribunal’s decision for [Mr A] (born [Date]) dated
[Date] indicates that your husband did not claim that he was Christian. This is
relevant because it may be inconsistent with your claim at hearing which was that
you met your husband at church in 2013 and that he was also a member of [Church 1].
The applicant provides a statutory declaration dated 3 January 2020 in response which included:
The information in relation to my studying in Australia which I gave at
departmental interview on 20 September 2016 is correct. I would like to repeat it
once again that I stopped my studying because I learned my friend was
sentenced to imprisonment and I lost my mind and terminated my study as a
result.
According to the departmental interview the departmental database was based
on the information obtained from school. Further according to the interview the
department will get that information if a student did not attend the school or if the
student’s attendance was unsatisfactory.
[In] July 2019 I left for China on a school holiday. Before that I attended the
school regularly and my attendance was satisfactory. Although I also went to school
after I returned to Australia [in] August 2009 my attendance was obviously
unsatisfactory because I was on and off as I said at the departmental interview.
My unsatisfactory attendance, I think was the reason why the school gave the
information to the Department my stop studying in July 2009.
The information in relation to my husband which I gave at the Tribunal’s
hearing on 20 December 2019 is correct. I would like to repeat it once again that I
met my husband at church in 2013 and that he was also a member of [Church 1].
When my husband lodged his protection visa applicant (PV application) in October
2013 he did not officially become a Christian, because he had not yet been
baptised by then. To the best of my knowledge my husband’s protection visa
application (PV application) was mainly based on the reasons that his father had
borrowed money from others for gambling and that his family was hounded by
debt collectors. I think that all of these were the reasons why my husband did not
claim that he was a Christian in his PV application.
My husband was baptised on 26 January 2014. It was on the same day with me
as well as other new believers, but my relationship with my husband did not start
until 2015.
When my husband attended a hearing before the Refugee Review Tribunal in
May 2015 it clearly indicated the tribunal that he was a Christian and he then took
the oath on Bible. I believe that the Tribunal must have kept a record on it.
Evidence at current Tribunal hearing
The applicant provided further documents to the Tribunal through her agent including photos and statements as follows:
·     The third letter of Support from [Ms D] dated 12 November 2023
·     Letter of [J] dated 10 November 2023
·     Second letter of support from [Mr I], director, dated 15 November 2023
·     Letter of Support from [K] and [L] (translated copy) dated 13 November 2023
The letters indicate that they believe the applicant is genuine and she shares her knowledge and she has brought her child along to church and her son is involved in the church. The photos indicate that she has continued to attend church activities including online and has brought her son along.
Other documents are referred to below.
The Tribunal invited the applicant to 2 hearings, on 8 and 19 December 2023, which were conducted with the assistance of an interpreter in the Mandarin and English language. At the second hearing the Tribunal took evidence from the person stated to be a director of [Church 1]. The evidence provided is referred to below when relevant.
The Tribunal had intended to send a s424A letter to the applicants however, for the reasons set out below, the Tribunal considered it was not necessary to do so.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicants meet the definition of refugee or are entitled to complementary protection or are members of the same family unit. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration on the basis that the child is a refugee, and the mother is a member of his same family unit.
Country of reference
The applicant produced her passport to the Department, who accepted that she was a citizen and national of China, and assessed her claims against China. The Department also accepted that the child is a citizen and national of China having regard to the birth certificate and the country information about Chinese nationality. The Tribunal was not shown a passport for the applicant however it is prepared to accept, for the purposes of this decision only, that the applicant is a Chinese national and that the child is the child of this applicant and the applicant’s husband, and that the child is also a Chinese national. The Tribunal thus accepts that the appropriate country of reference for the assessment of their refugee claims, and the receiving country for the purposes of their complementary protection claims, is China.
Credibility concerns relating to the applicant
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
There were numerous significant credibility concerns which arose from the applicant’s changing evidence, inconsistencies in her evidence when considering her own documents and her husband’s application and evidence. The Tribunal has not referred to all of the concerns below, as it considers that the following supports the finding that the applicant is not a witness of truth.
Firstly, the Tribunal had concerns about the details of the applicant’s claims. For example,
·     When it asked the applicant how long she was detained for, she said 7 days. When it asked the date she said 27 July -3 August. The Tribunal put to her that she had told the first Tribunal 21 July – 8 August[6] (a period of 18 days). The Tribunal noted that she had corrected the start date from 21 July to saying it was 27 July, but she had not corrected the release date from 8 August to 3 August. In response she said that she is not sure why this is but she is sure that was the detention period. She said maybe she spoke too fast and made a mistake at the time.
·     The applicant claimed that although she and her husband were churchgoers and devoted, they did not get married in the church. The Tribunal put to her that this was difficult to accept given the claim that the family were all part of the church including her child. She said that she was embarrassed because she had had a child. The Tribunal does not accept this explanation in the claimed context. It considers that the failure to marry in a church undermines the claim that the applicant and her husband were genuine Christians who had been baptised 2 years earlier and that the applicant was as she claimed very devoted to the church).
·     The applicant claims that her former boyfriend spent 5 years in prison and that shortly after his release, she decided to send him Christian material which she knew to be illegal and banned. The Tribunal put to her that this was difficult to accept and she was not able to offer a coherent response.
[6] Source: transcript
The Tribunal considered that this evidence undermined her credibility.
Secondly, the Tribunal considered her changing and inconsistent evidence about an arrest warrant to be difficult to accept. She gave confusing evidence at the interview with the delegate as to whether she was referring to a Notice of Detention or Arrest Warrant in 2009 that had been shown to her mother (she did not list either document as a relevant document in her protection visa application form). Her evidence to the delegate was inconsistent as to whether the police showed it to her mother and took it away (in which case the mother would not have had possession of it) and then she changed her claim to say that her mother was sending it to her but it was lost.
Further, when the current Tribunal asked if she was ever the subject of an arrest warrant, she said yes, for disturbing the public order and spreading rumour, that was the past arrest warrant/ notice of detention when she was detained. When asked if there had been another since then, she said no. The Tribunal put to her that she has claimed that she is currently wanted as a dangerous person but at the same time she is claiming there is no arrest warrant for her. She then changed her evidence and said that in 2015 the police came to her house to tell her mother to ask her not to post materials anymore and they showed her mother a (current) arrest warrant for her. The Tribunal put to her that she had just said there was no other arrest warrant and now she is changing her evidence. The Tribunal considered that this undermined her credibility.
Further, when asked, she said she became aware of that arrest warrant a few days after the police came to her house, at the end of 2015. The Tribunal put to her that she completed her statement in support of her protection visa application on 12 January 2016, however she had not made the claim that the police had come and shown an arrest warrant to her mother, which would appear to be very important information. In response the applicant said that she could not recall this at the time. The Tribunal does not accept this explanation. When considering her initial evidence to the Tribunal that there was no other arrest warrant after 2009, then her willingness to change that evidence, and when considering her changing evidence to the delegate, and her explanation to the Tribunal that she did not recall the arrest warrant against her that she known about less than 1 month earlier, the Tribunal considers that this indicates that she made up her claims about arrest warrants/ notices of detention, and that this undermines her credibility and claims.
Thirdly, the applicant made claims about her devotion to religion and her evangelism which were undermined by her lack of knowledge.
When the applicant was asked the reasons why she does not want to return to China she responded in China there is no freedom of religion. If she went back, there is no church she would attend, she can’t attend church activities like she does now. They will keep looking for her because of the materials she posted back to China. Further, she said her “biggest concern” is that she will be unable to evangelise like she does now. This last assertion was also a significant concern to the Tribunal, as despite her claims to have been regularly attending church activities for 10 years, twice a week, and that she evangelises, she was unable to explain her claimed religion other than superficially, which undermined that her attendances at church activities were for genuine reasons.
The Tribunal’s concerns that the applicant had become a devout Christian since 2013/2014 who had attended regular and multiple meetings per week because of her commitment to her faith, and that she actively evangelised to others, arose for numerous reasons including as follows:
· At the interview, by which time she had been fully involved with the church for over 2 years, the applicant stated that her parents did not have a religion and she had preached her Christian faith to them. When asked how she preaches to them, her response was to say she tells them to believe in God. When given further opportunities she said she asked my mother to believe in Jesus and that believing in God is good.
· Also at the interview, she was asked how she preached to [Mr C] back in China and her explanation was similar: she told him to believe in God. She believed in God so steadily and why she follows God steadily. When asked however what she said to him about Christianity she responded that she told them about Christianity because she accepted God and her whole life changed and she had hope. When asked if she told them anything about Christianity or the gospels she said no. She was afraid she may not be able to tell the whole story as this occurred not long after I believe in God so I sent a gospel pamphlet. This apparent evangelism however occurred more than 18 months after she had decided to convert to Christianity, underwent baptism training, was baptised and regularly attended multiple gatherings per week. In the circumstances it is difficult to accept that she could barely say anything to her former boyfriend and his partner (who both converted to Christianity).
The Tribunal notes that she provided a minimal additional amount of knowledge when prompted on numerous occasions by the delegate. This was the extent of her ability to discuss her religion by the time she claimed she had been devoutly attending for 2 years and that she had been evangelising to people. The Tribunal does not accept that her evidence was commensurate with a person who had converted to Christianity and was a devout, proselytising Christian who was preaching, and seeking to help and convert, the important people in her life. Rather, her evidence at the time of interview indicates that, if she had attended gatherings by then, it was not because she was a genuine Christian but rather because she was unlawfully present and seeking to support a future protection visa application, and that she had absorbed some words and concepts while there. The Tribunal considers that this undermines her credibility and claims.

Further, when the Tribunal asked the applicant about her introduction to Christianity, she said: in 2012 someone preached to me to do the evangelisation and I attended church in March 2013. When the Tribunal asked who preached to her, she said her neighbour. When asked what her neighbour told her, her evidence was vague: She just asked me if I want believe in God. I didn’t say anything I just listened to what she said. When asked what the neighbour had said, the applicant said: a lot of things but 1 sentence resonates with me and touched me, namely: every word from God has power and not a single person remains unchanged.
However, when the Tribunal asked what this important sentence meant, she said she did not know. The Tribunal found this difficult to accept: it would expect that if she could recall something from 10 years ago that touched her enough to make her want to adopt a new religion, she would know (at that time, or by no) what this meant. The Tribunal also noted that she was not able to say anything else as to what was preached to her.
Further, when the Tribunal asked the applicant how she managed to preach and then encourage her former boyfriend to convert to Christianity, her evidence, even in 2023, of how she preached to him, was very superficial. Despite opportunities to explain, she was only able to say: I just started pray for him; I pray my lord my word / God can change you/ when someone else is upset no one else can comfort him but God words. The Tribunal did not find this persuasive.
Later, she added a few more phrases to what she said she preached to him in 2015.
After telling the Tribunal what she had reached to him (in 2015) the Tribunal asked her what else she had learned about her religion now that 8 years had passed, she was silent. She then said: I know all the basis teachings of Christianity – believe in eternal life, the sins can be redeemed. She then said she was muddled in the mind. The Tribunal put to her that it is finding it difficult to accept that she is a genuine Christian, and it would give her a further opportunity to tell the Tribunal more about her faith and religion. She said I can only tell you I am a genuine Christian and I don’t know what to say.
The Tribunal repeated its concern and again gave her an opportunity to talk about her religion, however she was silent. She then said I believe there is 1 God in this world – I can only use my soul and honesty to worship my God. The Tribunal put to her that it does not appear that she proselytises or that she is a genuine Christian. She was silent and said she believes in God; her ability to express herself is very poor. The Tribunal is not satisfied with any of her explanations. It considers that her evidence undermines her claims to be a genuine Christian, and a Christian who proselytises/ evangelises.
Fourthly, the Tribunal had concerns about the applicant’s claims and her husband. Her husband, just like this applicant, spent years unlawfully present in Australia before making an application for protection. Documentation relating to the husband[7] indicates that he lodged his protection visa application on 23 October 2013. He had an interview with the delegate in relation to his protection visa application on 5 March 2014 but he did not claim to either be a Christian nor to fear harm as a Christian (even though it is claimed that by that stage he (and the applicant) had been baptised 2 months earlier and they had taken photos of this event). Further, at his Tribunal hearing on 12 May 2015 he also did not claim to fear any harm as a Christian nor to even raise this as a matter to be discussed at hearing. The Tribunal notes that, as raised by the applicant in her s424A response to the first Tribunal’s concerns that her husband had not mentioned Christianity at all as a relevant matter in his protection proceedings, her husband had taken an oath on the Bible. She did not assert that he had otherwise claimed to be a Christian at any stage in his proceedings. The Tribunal considers it strange that the husband would take an oath as a Christian but then make no claims as a Christian. While this could have indicated that he was a genuine Christian who did not believe that he would suffer any harm in China for that reason, another, more probable reason, is that he was not a genuine Christian ( and instead attended the baptism and some church activities because the applicant wanted him to accompany her in her endeavours to support that she is a Christian). This latter interpretation is supported by his evidence at his hearing: when that Tribunal member raised the husband’s delay in lodging his protection visa application noting that there had been lots of Chinese people applying for protection visas, the husband said that he was aware that Chinese people were lodging applications on the ground of religion, but he was unaware that he could lodge on the basis of his situation. It is reasonable to expect that, during such discussions, if the husband had been a genuine Christian, he would have mentioned this at his hearing.
[7] Sourced from Tribunal file 1410865
Further, after the Tribunal affirmed his application, he lodged an application for judicial review to the court. The judgment indicates that he attended a hearing on 24 November 2015 and he made submissions from the bar table. There is no suggestion that he even mentioned Christianity.
The Tribunal considers that this indicates that the husband was not a genuine Christian at the time of his baptism, interview with the delegate, nor during his protection visa Tribunal or judicial proceedings.
Fifthly, the applicant linked her failure to continue studying with her claims that she had returned home from China [in] August 2009 and was in a poor state due to what had occurred. In her statement she claimed that:
[In] August 2009, I arrived in Australia again on a student visa. Around October 2009, I learned from my mother that [Mr C] was sentenced to 5-year imprisonment, and that he was transferred to [Prison] in Fujian. I completely lost my confidence in my life. I terminated my study around December 2009. During following years, I did not have any specific aims but just bumbled through life. 1 became an utterly worthless person.
Other information undermined these assertions, including the evidence in her interview with the delegate:
Q. According to our departmental date base, you last studied on 10 July 2009, is that correct?
A. Yes, December.
Q. No it says in July 2009 you stopped studying. The departmental database indicates that the last study you had was 10 July 2009.
A. I didn’t stop, I went to school I didn’t there go often but I go there.
Q. So you’re telling me you studied until December
In addition to Departmental records indicating that she had stopped studying in July 2009, according to a PRISMS search, which the current Tribunal put to the applicant, she herself notified her cessation of studies on 11 September 2009. The applicant did not provide a credible response to this changing evidence as to when she stopped studying. She initially said she is pretty sure that she stayed studying until December 2009. When the Tribunal asked her if she was telling the Tribunal that she did not notify that her studies had ceased, she did not engage, saying I didn’t pay attention to this. This response does not make sense.
Both sources of information undermine her claim that she finished studying in December 2009 because of the events that occurred in China; and the latter (that she notified her studies had finished in September 2009) also undermines her explanation that she had meant to say that she studied on and off until December 2009.
The Tribunal considers that if serious events as she claimed happened in China which affected her ability to study, she would recall whether she studied at all when she returned. The records indicate she did not study.
The Tribunal was concerned that the applicant’s claim that she came to Australia to study was not the truth. In this regard, the applicant was not even sure of what level of high school she studied in Australia, and although she claimed she had studied English language course and then studied school (in English), she also claimed in her protection visa application form that she could not speak, read or write in English. The applicant did not claim to finish her studies, and was prepared to stay in Australia with a student visa without studying at all, and then to remain unlawfully present for years. The Tribunal considers that her plan was to remain long term in Australia.
Finally, as noted above the applicant was aware when she first arrived in Australia and thus when she returned to Australia in August 2009 that she could claim protection, but she chose not to, and preferred to remain unlawfully present in Australia.
The applicant was unable to satisfactorily explain what had changed her mind leading to her decision to lodge a protection visa application in January 2016. She initially said that it was when she started to believe in God that she believed she should not avoid the problem and should lodge the application form; the Tribunal noted however that the lodgement appeared to be almost 3 years after she believed in God, so this was not an explanation for her delay. She also claimed that she was lacking in confidence to address the situation; the Tribunal put to her that this was contrary to her statement which was that her devotion to her religion and conversion was what had given her increased confidence (2013/2014), yet she still did not lodge her protection visa application until January 2016. The Tribunal does not accept her explanations as to why she lodged her protection visa application.
The Tribunal put to her its concerns that she had lodged a protection visa application for a different reason. It noted that shortly after the lodgement of her protection visa application she lodged a bridging visa application seeking permission to work, and in support she claimed that she and her husband had debts including medical expenses relating to the child (a significant bill of over $400 for the child was provided). The Tribunal noted that once she lodged a protection visa application, her child’s medical expenses would be covered by Medicare.
The Tribunal put to her that she may have lodged her protection visa application in order to obtain Medicare for her child’s expenses. Her response was not satisfactory; she claimed that at the time she had not been thinking about expenses, but this is undermined by her bridging visa application, which was all related to their desperate financial situation, debts and expenses.
The Tribunal considers that her significant delay in claiming protection undermines her claims that events had occurred in China prior to this time which were the reason why she considered she could not return to China.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that she has not been a witness of truth when making claims as to past events, circumstances, or events in Chin, and her intentions, actions and activities in Australia. The Tribunal considers that the applicant is prepared to make up claims and change her evidence in order to be granted a protection visa.
Findings on the applicant’s claims
The Tribunal has found that the applicant is not a credible witness.
On the basis of the credibility finding above the Tribunal finds that the applicant is not a genuine Christian. The Tribunal has taken into account her superficial knowledge of her claimed religion, as well as the supporting evidence as discussed below:
· The Tribunal took evidence from the director of the church [Mr I] who told the Tribunal that he knew the applicant well, he only gives personal references for people he knows well, she is quite devoted, and that she and her husband had got married in the church. The Tribunal put to him that she claimed she did not get married in the church. He then changed his evidence and said he was not sure that she married in the church. It was of significant concern that he had been prepared to assert in his evidence that she had married in the church when she had not. Further, when the Tribunal asked him why she would not have married in the church his response indicated that he did not know if she was baptised or not (this however was inconsistent with his own letter in support where he claimed she was baptised in January 2014). He was unable to offer an explanation that matched the applicant’s explanation as to why she did not marry in the church. The Tribunal does not place weight on [Mr I]’s evidence other than to accept she has attended the church for a period of years.
· The statements (and oral evidence from witnesses) claimed that she attended church since 2013. The Tribunal notes that there was no evidence produced on letterhead from the church concerning her participation and activities. Even if she attended a baptism, and sometimes attended church and activities (which it accepts based on the supporting evidence), and even if some of the witnesses may believe that she is a genuine Christian, the Tribunal is not satisfied that she has engaged in any religious activities for genuine reasons; rather it finds that she has done so to support a future protection visa application, to strengthen her claim to be a refugee, as she was unlawfully present and thus at risk of being discovered and removed from Australia, at the time it is claimed she started attending church.
On the basis of the adverse credibility finding the Tribunal does not accept any of her claims as to what happened with her English teacher, or her former boyfriend and his new partner, or that the applicant was detained, or that she sent Christian information to her former boyfriend that was discovered by the authorities. It does not accept that ever preached or tried to convert anyone in China and it does not accept that she was ever the subject of an arrest warrant. The Tribunal does not accept any of the claims that flow from these claims. The Tribunal finds that the reason the applicant lodged her protection visa application was to prolong her stay in Australia and to claim Medicare to cover her child’s medical bills.
The Tribunal finds that the applicant, who, according to her own evidence, has always known about protection visas, had always planned to lodge a protection visa application when, in her view, the time was right. She had been unlawfully present since 2011. The Tribunal finds that she started to attend church and undertook church activities from at least 2014 with a view to founding and thus strengthening a protection visa application. The Tribunal finds that the applicant is very determined and continued to attend church activities over a long period, namely to strengthen her claim to be a refugee. The Tribunal accepts that, sometimes, she has attended church activities since 2014, for the reason of her planned application. Concerning the applicant, her activity in Australia is disregarded pursuant to s5J(6).
The Tribunal considers that the applicant’s husband and child have been affected by her determination in this regard. Concerning the husband, it finds that any superficial involvement in religion was at the instigation of the applicant as she had her own reasons for attending the church; to support her future protection visa application. The Tribunal finds that the husband was not a genuine Christian at the time of his baptism, interview with the delegate, nor during his protection visa Tribunal or judicial proceedings.
The Tribunal discussed the child below.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Annexure A, which provides a summary of the relevant terms). The Tribunal has accepted that the applicant will return to China with her husband and child. It is not satisfied that she faced any harm in China nor does it accept that she faces a real risk of significant harm for any reason. The Tribunal has found that the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.
In this regard her activity in Australia is not disregarded, however the Tribunal is not satisfied that she would want to engage in Christian activity in China because she is not a genuine Christian. The Tribunal is also not satisfied that, even if the authorities were aware of her attendance at [Church 1] in Australia, this would result in her facing a real risk of significant harm from the Chinese authorities, noting that country information from the DFAT Report 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. Based on the evidence before it, there is nothing to indicate that [Church 1] is connected to any religious movements that are illegal in China or that this type of church is regarded as a “cult” (DFAT Report 3.53 – 3.78) and indeed the agent specifically stated to the first Tribunal that the church attended in Australia is not considered a cult.
The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, 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 a receiving country, in this case China, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
The child
The child was born in [Month, Year] and is now [Age] years of age.
The applicant told the Tribunal that if her child returns to China, he cannot attend church in China and it is compulsory in school that every child should be atheist. Her child will be forced to be an atheist and will have no freedom of religion. He is a true Christian and he has a relationship with God and he has witnessed and he will pray for people; he is a true believer although he is only [Age] years of age. Religion in school is not allowed. The Tribunal put to the applicant that it may not accept that the reasons she sent the child to a religious school was because she is religious. She said that he would not be able to have religious lessons in school, even a private school if he returned to China. The Tribunal put to her that it may not accept that this means that he is a refugee or entitled to complementary protection. She claims that her child is very religious and if he hears about incidents on the radio, for example if people or children are dead he starts praying for the children, if he sees friends suffer, he will pray for that person. Her son has a bond with God and one day on the bus they saw a car accident and her son was telling her to pray for them. She said she can’t ask him to stop doing it.
The Tribunal was provided with a number of documents certifying the child’s attendance at preschool/ Sunday School at [Church 1], and school reports for 2020, 2021, 2022, 2023 from [School of another Church] and photographs of the child attending Sunday school. The child’s school reports state that he shows respect and concern for others and demonstrates social and civic responsibility; he contributes service to others in all areas of school life; he has taken part in reflective discussions about God’s world and he attends in weekly online chapel and doctrine lessons.

The Tribunal has found that the applicant has taken steps to attend the church and church activities as part of her plan to remain in Australia, not for genuine reasons. It finds that she has effectively encouraged her son to be indoctrinated into the Christian religion, for her purposes. The Tribunal finds that she has taken him from a young age to various church activities (Sunday school, general church gatherings) and that she enrolled him into a Christian school. He is an only child who has grown up with exposure to Christianity organised and encouraged by his mother. The Tribunal notes that at the very end of the first Tribunal hearing (December 2019) the applicant claimed that her child, aged [Age] years, “has been growing up in this church since childhood”. The witness at the first Tribunal’s hearing also claimed that the child had been attending church. Other witnesses also stated that the child has been attending church, and the photographs also supported this claim.
The Tribunal accepts that the child has grown up with Christian influences from Sunday School, attending church gatherings, and that he has been attending a Christian school for 4 years. He is only [Age] years of age, however the Tribunal accepts that if he returns to China, he will continue to speak out about God and his religion, to whomever he meets, and particularly to his classmates, as this is all he has ever known. The Tribunal has not accepted that the applicant is a genuine Christian and it does not accept that she would take the child to a house church. This means that the child will be going back to a completely different environment, where his mother is no longer involved in religious activities, and he will no longer be allowed to attend church or to have any religious involvement, either at school or by attending church. Given his upbringing, however, the Tribunal considers it likely that the child will spontaneously communicate his religious views in China, in particular in a school setting. The Tribunal has considered whether this means he will face a real chance of serious harm or a real risk of significant harm.
Does the child have a well-founded fear of persecution?
The agent provided some country information, and the Tribunal has considered the DFAT report and other country information.
The DFAT report is dated 22 December 2021 and the Tribunal accepts that there have been additional concerns relating to the treatment of Christians in China since the report. The report states:
China officially recognises five religions: Buddhism, Daoism (Taoism), Catholicism, Islam and Protestants…
Under Xi Jinping, China has introduced a renewed campaign to ‘sinicise’ religion. This work, undertaken through the Party’s United Front Work Department and carried out through registered, state sanctioned religious organisations, aims to ensure that a ‘correct’ version of religion is practised by adherents in China, with principles like patriotism, party leadership, and loyalty to the Party emphasised, and doctrine deemed inconsistent with Party supremacy de-emphasised or forbidden. This may involve changing elements of worship such as hymns, clerical attire or architecture to better align with Chinese cultural, aesthetic or political traditions. New religious regulations and implementation organisations aim to enhance government control over the appointment of religious leadership, increase transparency over sources of funding, limit religious practice to venues authorised by the government, reduce links with foreign religious organisations, and give the Party greater say over religious doctrine taught in China. Religious groups that refuse to bring themselves under the authority of state-sanctioned religious organisations face being shut down. Some religious leaders have faced charges like subversion of state power…..
Some home congregations … originally .. [had] increased tolerance over decades. But the recent crackdown to ‘sinicise’ religions is reversing this trend. Those groups that are allowed to exist are subject to close monitoring. CCTV cameras may be installed in religious buildings to monitor congregations and virtual platforms used by religious groups to meet may be monitored or censored.
In its 2022 Freedom of Religion report, the US Department of State reported:
National law prohibits organizations or individuals from interfering with the state educational system for minors, effectively barring individuals younger than 18 from participating in most religious activities or receiving religious education…
The government continued its multiyear campaign of “Sinicization” to bring all religious doctrine and practice in line with CCP doctrine, which included requiring clergy of all faiths to attend political indoctrination sessions and suggesting content for sermons that emphasized loyalty to the CCP and the state. In his October 16 speech to the 20th Party Congress, President and General Secretary Xi Jinping stated the CCP would “remain committed to the principle that religions in China must be Chinese in orientation and provide active guidance to religions so that they can adapt to socialist society.” The government continued its campaign against religious groups it characterized as “cults,” including the CAG and Falun Gong, and it conducted propaganda campaigns against xie jiao (literally “heterodox teachings”) aimed at school-age children. Human rights advocacy groups said the regime increasingly classified as xie jiao any group the CCP perceived as hostile to the regime, and courts increasingly applied anti-xie jiao punishments to groups that were not on the official list.
The government blocked religious websites and censored religious content from the popular messaging service WeChat. Authorities censored Mandarin- and Cantonese-language online posts referencing Jesus or the Bible, removed articles published by Christianity-related platforms, and removed the accounts or instructed internet service providers and individual users to remove accounts whose names contained the words “gospel” or “Christ.” The government prohibited unauthorized online broadcasts of religious services. One NGO said the new rules concerning online religious content essentially treated Christian religious material on the internet “on a par with pornography, drug dealing, and inciting rebellion.” Authorities continued to restrict the printing and distribution of the Bible, the Quran, and other religious literature and penalized businesses that copied and published religious materials….
Children younger than 18 are prohibited from participating in religious activities and receiving religious education, even in schools run by religious organizations. One regulation states that no individual may use religion to hinder the national education system and that no religious activities may be held in schools. The law mandates the teaching of atheism in schools, and a CCP directive provides guidance to universities on how to prevent foreign proselytizing of university students.
The Regulations on Religious Affairs came into effect on 1 February 2018 which banned minors from being involved in religious education and practice[8]. The Law of the People’s Republic of China on Protection of Minors, as revised in 2020, also prohibits parents or guardians from allowing or abetting ‘minors to participate in religious cults or superstitious activities’[9] There are also reports of education against religion, that the government is heavily involved in the suppression of religious belief in childhood settings, including with schools being pressured to stop children and parents from believing in religion and education being restricted against religious belief or practice[10]. Parents were asked not to hold any religious beliefs, participate in any religious activities, or propagate and disseminate religion in any locations[11]. In a school setting, it has been reported that children have been under pressure to tell teachers and the local authorities if their parents are active adherents to a specific religion[12]. There are also reports of young people in some areas being threatened with not being allowed to graduate or not being accepted for further studies where children have remained strong in their Christian faith[13]. Whilst corporal punishment is prohibited in schools, with Article 16 of the Compulsory Education Law 1986 stating that it is forbidden to inflict physical punishment on students[14], articles refer to corporal punishment forming a part of the culture of Chinese education[15] and the Chinese media have reported cases of children who have died after being beaten by teachers or taking their own lives following public humiliation at school[16].
[8] ‘Regulations on Religious Affairs (2017 Revision)’, State Council of the People’s Republic of China,
State Council of the People's Republic of China [English.gov.cn], 1 February 2019, 20190620101102
[9] ‘Law of the People’s Republic of China on Protection of Minors – 2020 Revision’, National People’s
Congress (China), 17 October 2020, Art. 17, 20230503091024
[10] Christian Solidarity Worldwide, ‘China: Children, education and freedom of religion’ (26 June 2018),
China Aid, ‘Kindergarten parents must pledge not to hold religious beliefs’ (20 March 2023),
[12] Open Doors, China: Full Country Dossier (December 2023), China-Full_Country_Dossier-ODI-
2024.pdf at 81
[13] Open Doors, China: Full Country Dossier (December 2023), China-Full_Country_Dossier-ODI-
2024.pdf at 82
[14] ‘Corporal punishment of children in China’, Global Initiative to End All Corporal Punishment of
Children, 31 January 2020.
[15] Letong Lv, ‘Analysis of the Causes of Corporal Punishment in Chinese Children’s Education’,
[16] ‘China bans harsh punishments in schools’, Today Online, 2 March 2021.
Other reports relating to Fujian Province, a location previously reported by DFAT to have greater religious freedoms, suggest further restrictions of religious participation by minors. World Watch Monitor indicates that minors were banned from attending Christian summer camps in Fujian and other provinces having relatively high Christian populations. In Fuzhou, the state-sanctioned Three-Self Patriotic Movement was told to report any activity held in religious venues and to obtain permission to hold events in unregistered venues. Churches in Fuzhou were told, ‘it is forbidden to force or tempt juveniles to believe in any religion’[17].There are also reports of the government forcibly shutting down kindergartens and primary schools sponsored and managed by house churches, including a school in Xiamen City, Fujian[18]. There are some reports of minors having been detained by authorities or taken to the police station for questioning when found practising their religious beliefs in house or unsanctioned churches. In August 2022, a 9-year-old child was intimidated and taken to a police station for interrogation after a forced search of the homes of a pastor and church staff members[19]. During a Sunday church service in the Mentougou district, also in August 2022, a church was raided and 9 adults and 2 children were seized[20]. In April 2021, 7 church members and 12 children in Sichuan Province were taken away by police during a church raid, conducted due to their gathering as Christians to talk and study together[21]. There have also been reports of broader door-to-door intimidation of parents and children, and the raiding and closing of church schools in various places in efforts to suppress and ban Christian education[22].
[17] World Wide Watch Monitor, ‘China Bans Children and Their Teachers from Churches’ (8
[18] World Wide Watch Monitor, ‘China Bans Children and Their Teachers from Churches’ (8
[19] China Aid Association, ChinaAid’s Annual Persecution Report 2022 (14 February 2023),
at 23
[20] China Aid Association, ChinaAid’s Annual Persecution Report 2022 (14 February 2023),
at 26
[21] Radio Free Asia, ‘Police in China’s Chengdu Detain Children in Early Rain Church Raid’ (22 April
2021), China Aid Association, ChinaAid’s Annual Persecution Report 2021 (1 March 2022),
at 16
The above information is indicative that there is increasing repression of religion in China. The Tribunal notes that there are millions of Protestants in China and that the DFAT report, albeit issued several years ago, assessed 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…. DFAT assessed that Protestant Christians face a low risk of societal discrimination.
The country information indicates that the child will not be able to attend a religious school and or a church (noting that the applicant who is not religious, will not take him). The Tribunal accepts that the country information indicates that there is increasing government scrutiny over religion including in the school environment. The Tribunal considers that there is a small but real chance that when this [Age] year old child raises his religious beliefs in his school environment, he will become known for being a Christian, and at school he will face isolation, ridicule, harassment, discrimination, intimidation and possible corporal punishment for expressing his religious beliefs. In addition there is also a small but real possibility that he will be reported to the authorities for the expression of his religious beliefs by either his peers or his teachers, and that in the hands of the authorities he will also face, at the least, harassment, discrimination and intimidation. The Tribunal accepts that when considering this cumulatively, this amounts to a real chance of serious harm for this child in the reasonably foreseeable future, and that this arises from systematic and discriminatory conduct, and it would be directed at the child for the essential and significant reason of his religion: s 5J(4)and s 5J(5).
The Tribunal finds that s5J(6) is not applicable as the child has not engaged in conduct to strengthen his claim to be a refugee.
Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. The Tribunal is not satisfied that such protection is available as the conduct stems from the state’s actions, or schools/ peers discriminating against the child due to their obedience to attitudes of the state.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. The Tribunal considers that the child will not be able to modify his behaviour, and in any event the section notes that he should not be required to conceal or alter his religious beliefs.
On the evidence before it, the Tribunal finds that the real chance of persecution relates to all areas of China.
Accordingly, the Tribunal is satisfied that the child has a well-founded fear of persecution for reason of his religion. He therefore meets s 36(2)(a).
For the reasons given above, the Tribunal is satisfied that the child is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The applicant as a member of the same family unit
As set out above, the Tribunal has found that the applicant’s child is a refugee pursuant to s 36(2)(a) of the Act.

100. The Tribunal accepts that the applicant is a member of the same family unit of her child: s 5(1) of the Act, reg 1.12(4).
101. The Tribunal thus accepts that the applicant is a member of the same family unit as her child for the purposes of s 36(2)(b)(i).
Conclusion
102. For the reasons given above the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant, as the mother of the child, is a member of the same family unit of the child. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION

104. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the second named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
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.
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.
…

Departmental records indicate that both parents of [the second applicant] were temporarily in Australia at
the time of his birth, and therefore, I am satisfied that the Dependant Applicant has not
acquired Australian citizenship by virtue of his birth in Australia. There is no evidence before
me to indicate that the [second applicant] is a not national of the People’s Republic of China.

Press, Proceedings of the 2022 3rd International Conference on Mental Health, Education and

Human Development (MHEHD 2022).

September 2017), 2017),

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Citations

2018596 (Refugee) [2024] AATA 2698

Cases Citing This Decision

Cases Cited

Statutory Material Cited

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

[2024] AATA 2698

30 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies