2100524 (Refugee)

2100524 (Refugee) [2023] AATA 3285 (20 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Grace Chen (MARN: 9601063)
CASE NUMBER:  2100524
COUNTRY OF REFERENCE:                   China
MEMBER:Scott Clarey
DATE:20 April 2023
PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 20 April 2023 at 3:28pm
CATCHWORDS
REFUGEE – protection visa – China – ethnicity – Han Chinese – religion – Christian faith – Local Church (Shouters) – particular social group – genuine Christian and a member of the Local Church – practising Christian and would continue to practise his particular Christian faith through the Local Church if returned to China – would face a real chance of serious harm from the Chinese government if he were to return to China – unable to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
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 dependant.
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 Home Affairs on 31 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of China, applied for the visa [in] February 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection in Australia. On 17 January 2021, [the applicant] , applied to the Tribunal for review of this decision. He provided the Tribunal with a copy of the delegate’s decision record.
I note that there were a series of delays in relation to the hearing of this case by the Tribunal. The case was previously constituted to a former Member of the Tribunal who held a video hearing with the applicant on 21 March 2022. Following the hearing, and prior to a decision being made by the Tribunal (as previously constituted), the Member (previously constituted to the case) left the Tribunal. The case was subsequently reconstituted to me. The applicant appeared before the Tribunal (as presently constituted) in person on 13 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of China, there is a real risk he will suffer significant harm.
Identity
On the basis of the copy of [the applicant] ’s passport provided to the Department, I accept that he is a citizen of China and that his identity is as he claims it to be. I accept that China is [The applicant] ’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
Relevant background
[The applicant] is a [age]-year old man who was born in Fuqing City, Fujian Province, China on [BOD deleted]. In his protection visa application he claimed to belong to the Han Chinese ethnic group and that he is of the Christian faith. At the hearing [The applicant] stated that he was born and raised in Fujian, and his family, including parents, an older sister and an older brother, continue to live there. [The applicant] is married with [two] sons. [The applicant] completed middle school in Fuqing,and began work in [Occupation 1] when he left school. He was working in [Occupation 1] immediately prior to departing China for Australia in 2017. He first arrived in Australia [in] June 2017, having departed China legally, and entered Australia on a visitor visa.
Claims from the protection visa application
[The applicant] set out his claims for protection in a statement submitted with his visa application. The statement is reproduced below (unedited):
During December [year], army recruitment officers and our village leaders came to my home and forced to join the army. Many officials and rich people do not want to send their children to the army. They threatened us that if I refused to join the army, I would be sent to reform-through-labour camp. My parents are very humble and timid farmers. They were so scared that they could not even eat. My family had neither government officials nor rich people as our relatives. I was taken to the army. I was only 16 then. I had not even finished my junior high school. The officials changed my age from 16 to 18 and took me to the army. In order to be promoted to the Chinese Communist Party member and to receive awards, I had to offer bribery like everyone else. However, my leaders said that my bribery of RMB$30,000 was too little, and far less than others'. I did not get anything.
During December 1997, I was discharged from the army and returned to my village waiting for being assigned to a job. As I did not give money to the person who was in charge of assignment, I was never given any job. My father had to offer bribery of RMB$30,000 to this officer through a friend. During June 1998, I was assigned to [Company 1], which was a subordinated to [a] Committee. After I reported to this company for work, the company asked me to wait at home for further allocation. Such a waiting was two years long. I had to offer bribery to the company head RMB$20,000. I was notified to come to work in March 2001.
On [date deleted], my second [son] was born. This should have been a happy matter. However, the government authorities said that this child was born outside the birth control quota and forced us to pay RMB$60,000 as penalty. They said that if we did not pay the penalty, the child would not be allowed to register household registration and would not be allowed to go to school later. My monthly salary was only RMB$1200. How did we have money to pay the heavy penalty?! I have to divorce my wife, because she was holding household registration as a farmer. Our second child's household registration was added to my wife's farmer household. Even so, the authorities still threatened my wife to the effect that her husband still had a job, and if we continued refusing to pay the penalty, they would sack me from my employment. My employment income was the only source of income for the entire family, how could we offer to lose the job?! Out of no any choice, my wife had to pay penalty of RMB$20,000 in her name as social maintenance fees. So so-called penalty was a mean of income source for the authorities, because 70% of the fines were kept by the village authorities and 30% was given to town leaders.
During 2006, I wanted to go to [Country 1] for a tour. I passed the Beijing Airport security and even went to the aircraft. The airport officers fabricated offences and accused me of escaping to a foreign country. They searched my baggage and found no evidence to support their accusation. The PSB officers were going to take me down the aircraft. The flight attendants stopped the PSB officers and said: "you shouldn't arrest passengers without any evidence.." The PSB officers said that they had every reason to arrest any suspect. I was take down the aircraft and was locked up in a room. They threatened me: "Plead guilty, and you will me OK. Otherwise you would have to suffer misery!" I was so much in fear that I had to plead guilty. I was transferred to [a] Detention Centre on the following day, where I was detained for 15 days. Through back-door contacts, I was fined RMB$6000. My passport was confiscated and I was told that I wouldn't be allowed to depart China for the next three years.
The Chinese Communist Party claim to the outside world that there is freedom of religious belief. However, they have been persecuting dissident religious practitioners and followers.
During 2010, Christians in our village were attacked. Our underground church activities were stopped. Innocent and ignorant villagers were incited to join in the officials' attacked on us. Riots were everywhere.
Evidence from the Tribunal hearing on 13 December 2022
At the Tribunal hearing (as presently constituted), [the applicant] told the Tribunal that he was born and raised in Fuqing City, in Fujian Province, China. He said that his parents are still alive and living in Fujian, as are an older brother and an older sister. He completed his middle school education there but left school at 16 to begin work in [Occupation 1], where he worked for several years in multiple companies. [The applicant] said that all of his work in China had been in [Occupation 1]in Fujian. He was working in [Occupation 1] prior to departing China for Australia in 2017. [The applicant] said that he married his wife when he was [age] and he has [two] sons. He said that his family all live in Fujian, with his parents.
I asked [the applicant] why he had decided to depart China and come to Australia in June 2017. He responded that at that time he was under a lot of pressure and stress and he felt that he needed to escape the country. When I asked him why he was under such stress, [the applicant] said that he was being persecuted by local authorities, relating to his religious beliefs and his activities at ‘the Local Church’. When I asked [the applicant] what religion he followed, he stated that he was ‘Local Church’. He said that his branch of the Local Church was established by himself and other churchgoers to begin with, and he said it was not officially under the authority of the Christian church in the beginning. He said that in principle their beliefs were very similar to what was taught in the Holy Bible, but they were not registered with the government and did not have any official paperwork that enabled them to officially practise their religion.
[The applicant] said that he had been introduced to the church through his father and his aunt who were pious followers of the faith and who he said were still involved with the church in China. He said that his father had taken him to church when he was a child, and his faith had developed from that point. He said that his aunt was a missionary with the church, and that church members in his village had raised money with which they bought land and built a physical structure in which to congregate. He said that the original founders of his branch of the church had split from more mainstream Christianity, and that the original pastors of his church were ‘Shouters’ and/or aligned with the Shouter movement within the faith. He said that at one point the church made an application to the government to acquire more land, but the government (in particular a government agency which [the applicant] referred to as the ‘religious bureau’) believed that the church was growing too big. He said that if the government thought believed that a particular church was growing too big, they would label the church as illegal. He said that prior to this his church had not experienced much interference from the government but there were now various restrictions placed upon the church, including that children under 18 were not allowed to participate.
I asked [the applicant] about his participation in the church. He said that he first started with what he called ‘worships’ and since 2011 had been part of the choir. He said he had participated in various church services including funerals and weddings. I asked [the applicant] about his knowledge of the origins of the Local Church in China. While he said he did not have extensive knowledge about the church’s history, he said that it had originally started as part of a more mainstream Christian faith, and that its early members had split from the original church and had become known as ‘Shouters’.
I note that [the applicant] demonstrated basic knowledge of his claimed Christian faith, including a broad outline of its central beliefs. I asked [the applicant] a series of questions about aspects of his faith, including significant events in the Christian calendar and what they meant. Although his knowledge of doctrinal aspects of the faith was patchy, he was able to describe significant events in the Christian calendar, including Christmas and Easter celebrations, why they were significant to the church and some basic knowledge about the history behind them. He demonstrated a basic knowledge of the structure of the Bible and some of the central tenets of the Christian faith including concepts such as the Holy Trinity, and basic aspects of Jesus’s life.
I asked [the applicant] about how he practised his faith in Australia. He said he attended a church in [Suburb 1], usually once a week, and engaged in Bible study and various other activities. He said that he had attended the church approximately six times in the previous two months. I note that [the applicant] has submitted a letter (dated 27 March 2022) from the Chinese Methodist Church in Australia, signed by [a senior church official], [name deleted] (Local Preacher), and several ‘church members’. The letter attests to [the applicant] ’s regular involvement in church activities since 2018, and states that he has regularly and actively participated in the church’s Sunday worship, and participated in other activities including the church choir, ‘adult fellowship’ and group Bible study. The letter stated that [the applicant] had also participated in a church family camp in December 2018 and other activities, including those related to Christmas celebrations.
I asked [the applicant] what he feared would happen if he were to return to China in the foreseeable future. He reiterated that because his church was growing, with more and more followers attending, the church had become a target of local authorities, and, he said, a gang who acted on behalf of these authorities, who were Communist Party members. He said the church had become more distinctive and identifiable, including by displaying a large cross on its building. He said that this local gang had tried to remove the cross. He said that this group had tried to provoke and foment disputes between the church and other faith groups, including Buddhists. He said the church had come under sustained attack from the local authorities, including what he described as a siege on the church, following which his father had been detained for 15 days. He said the threats from the group acting on behalf of the local authorities had become more direct and violent, and included threats of death to his family. [The applicant] said that they could not report this to the police because the police knew that this group was acting on behalf of the local Communist authorities. [The applicant] said that he was so afraid by this escalation in events he decided to hide, because he feared for his safety and his life.
I asked [the applicant] why he thought he would be targeted by the local authorities because of his religion if he were to return to China. [The applicant] said that his father was known to the authorities and was a target of them, because he evangelised on behalf of the church. [The applicant] said that he would likely evangelise for the church as well if he were to return to China, and recommence his religious practice and activities there, and that he would come to the attention of the local authorities because of these activities and because of the notoriety of his father, and would become a target again. He said that the authorities’ motivation to persecute the church and its members also had a political element related to local election campaigns; the authorities were concerned by the church converting locals to Christianity because they believed this could have an impact on the outcome of local elections in which they were seeking to maintain office.
I asked [the applicant] about the incident in 2006, which he mentioned in his statement that was submitted with his protection visa application to the Department. He explained that he had been removed from a plane in China, on his way to [Country 1], and that he had been harassed by the police in an interrogation room at the airport. He gave a confused description about why he thought this happened, stating that it may have been related to two other people from his village who were trying to sneak out of the country illegally. [The applicant] stated that this incident was not related to his religious beliefs.
I asked [the applicant] why he had been able to exit China in 2017 when he travelled to Australia, if he had been of interest to the Chinese authorities. [The applicant] stated words to the effect that he did not know if he was on the list or not, but in 2017 he had been able to obtain an enterprise certificate which enabled him to exit the country for business reasons. He said that he thought this may have confused the authorities and allowed him to exit without incident.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Findings and reasons
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons enumerated in the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of China, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Is the applicant a Christian, specifically a member of the Local Church or a Shouter?
I have considered [the applicant] ’s claims to have become exposed to the teachings of the Local Church as a child and developed his faith in China as an adult. Having questioned [the applicant] extensively at the hearing, I found some aspects of his oral evidence relating to his claimed belief in Christianity and membership of the Local Church faith community to be patchy and cursory, however other aspects were consistent and credible. As detailed above, [the applicant] displayed some knowledge of various aspects of the church and his faith. After having carefully considered the evidence before me, I accept that [the applicant] was born and raised in China and that he was introduced to Christianity in general, and the ‘Local Church’ specifically, as a child, through his father, who was an active member of the church.
I acknowledge that the Tribunal is not an arbiter of doctrine. I understand that people can follow a faith for various reasons and that it is not necessary for an applicant to possess a detailed knowledge of its central tenets. As outlined above, at the Tribunal hearing [the applicant] was asked a range of questions about his religious beliefs and practices in China and Australia. These questions were intended to give [the applicant] the opportunity to demonstrate aspects of his knowledge of the Christian faith and the progression of his religious beliefs. As outlined above, although some aspects were less developed than others, [the applicant] demonstrated knowledge of various aspects of Christianity and spoke about how his Christian faith had impacted his life. I note and accept that [the applicant] exhibited knowledge of specific aspects of his Christian faith, provided credible reasons why the church and he himself had been targeted in China for these beliefs, and that he has held himself out to be a Christian in Australia, including by regularly attending church services here.
Having considered all of the evidence before me relating to his claimed belief in Christianity and membership of the Local Church faith community in China (and Australia), I accept that [the applicant] developed an interest in Christianity through his father and auntie and subsequent exposure to the religion in China through the Local Church community. I accept [the applicant] ’s reasons for how he became involved in the church’s teachings and activities, and how it has impacted his life since.
Accordingly, I accept [the applicant] is a genuine Christian and a member of the Local Church, who are also known as ‘Shouters’ in China. I accept he is a practising Christian and would continue to practise his particular Christian faith through the Local Church if returned to China, even with the acknowledged attendant risks he faces in doing so there. I also accept that he may feel compelled to evangelise to non-Christians if he returned there.
Are the applicant’s fears as a member of the Local Church in China well founded?
In order to determine whether [the applicant] faces a well-founded fear of persecution from the Chinese government as a result of his Christian faith and/or membership of the Local Church community, I have had regard to various sources of country information concerning the situation facing members of the Local Church (or Shouters) in China. This includes information from DFAT’s country information report on China.
The 2019 DFAT country information report on China stated that:
The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations. A 1999 judicial explanation refers to: ‘those illegal groups that have been found using religions, qigong [a traditional Chinese exercise discipline], or other things as a camouflage, deifying their leading members, recruiting and controlling their members, and deceiving people by moulding and spreading superstitious ideas, and endangering society.’ While the criminal provisions principally target Falun Gong, others who engage in practices deemed superstitious or cult-like can face harassment, detention and imprisonment.
In September 2017, the government published a list of 20 banned groups on its official Anti-Cult website ‘xie jiao’(cult) and launched an anti-cult platform on social media called ‘Say No to Cult,’ which includes a function for reporting suspicious activity. Eleven banned groups were listed as ‘dangerous’ on the xie jiao website: Falun Gong, Eastern Lightning (also known as The Church of Almighty God), The Shouters, The Disciples Society (or Mentu Hui), Unification Church, Guanyin Method Sect (Guanyin Famen or the Way of the Goddess of Mercy), Bloody Holy Spirit, Full Scope Church, Three Grades of Servants (or San Ban Pu Ren), True Buddha School and Mainland China Administrative Deacon Station. The xie jiao website also warned the public to ‘be on guard against’ an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church.
Local authorities interpret ‘cult’ in different ways. Chinese government sensitivities towards religious cults have historical roots: religious cults led significant rebellions during the 19th century. Mainstream Christians tend to deride cults as heretics, but government crackdowns on ‘cults’ can affect unregistered mainstream Christian churches, as local officials may have difficulty distinguishing unregistered mainstream churches from cults.[1]
[1] DFAT Country Information Report, China, 3 December 2019, sections 3.93-3.95
The 2021 DFAT country information report on China stated that:
Some new religious movements, known as xie jiao, are illegal in China. The Criminal Law provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations.
Many xie jiao began as a formal expression of a syncretic mix of Buddhism, Daoism and Confucianism (‘three religions in one’) along with cultural practices, which from a Western perspective are sometimes difficult to separate from religious practices. Some later incorporated foreign religions into their mix of beliefs (especially Christianity and Islam, becoming ‘five religions in one’). Many of these beliefs obscure these backgrounds and adherents might not recognise their new religious movement as influenced by other religions.
There is a list of xie jiao but it can change quickly and is not available from official sources, making it difficult to determine at any time whether a particular religious movement is banned. Academics Utiraruto Otehode and Benjamin Penny give a list in a 2020 article, but note some sects and new religious movements (at least those based on qigong, a breathing technique upon which Falun Gong is based, for example) may not be specifically banned but instead watched or categorised as ‘problematic’ or ‘harmful’.
One Chinese county government website from Shaanxi states that xie jiao often ‘disguise themselves’ or ‘pretend to be religions’ (such as Christianity or Buddhism) or a manifestation of science or ancient practices. Another city government website from Shantou in Guangdong says that xie jiao spread false teachings and heresy. The national government’s ‘anti xie jiao’ website has articles about various groups, a section to help people find missing relatives and a place to report xie jiao activity. Membership of such groups is illegal and the profile of a person who is a member is not relevant to the chances of arrest once detected; a low profile worshipper in a xie jiao is still subject to arrest.[2]
…
The term ‘Local Church’ refers to descendants of a Christian-based religious movement from the 1960s. They are often referred to as ‘Shouters’, which refers to the loud and energetic worship practices of the various groups. The group has experienced multiple splits and schisms and groups collectively designated as ‘Shouters’ may be diverse and have little or nothing to do with each other. The term DFAT Country Information Report People’s Republic of China December 2021 23 ‘Shouters’ is sometimes used as a pejorative by critics or the government. Members of these groups may not call themselves ‘Shouters’, instead using ‘Local Church’ or ‘the Assembly’.
DFAT understands that Shouters are not as actively pursued in China as they once were. They may not, in practice, be considered or treated as a xie jiao. DFAT understands from sources that they may have been delisted as a xie jiao but different sources offer conflicting information. In Chinese-language internet searches, DFAT found a 2020 reference in the Chinese press that quoted Xining (the capital of Qinghai in Western China) police as saying that the Shouters ‘pretend to be Christianity’ (which is consistent with other anti-xie jiao messaging) and clearly states that Shouters are illegal.
Bitter Winter, a website critical of the Chinese Government, published an article in May 2021 that notes a ‘continuing’ crackdown in Beijing, Jiangsu and Guangxi. The article quotes American scholar J. Gordon Melton who claims that groups that accept the teachings of founder ‘Chairman Nee’ (in Chinese, ‘the Old Local Church’) are not a xie jiao but those groups who recognise the teachings of later leader ‘Watchman Lee’ or ‘Witness Lee’ (in Chinese ‘Local Church’ or perhaps ‘New Local Church’) are a xie jiao. DFAT is unable to confirm whether this is correct but understands that distinctions between different groups may not be well understood by authorities and arrests of either group should not be ruled out.
People identified as ‘Shouters’ are a diverse range of groups of Protestant Christian origin that may be indistinguishable from other small Protestant groups and may have no resemblance to other groups of the same origin. See the assessment for Protestant Christians. Whether or not they see themselves as ‘Shouters’ is not as relevant as whether they are perceived to be ‘Shouters’ by authorities. The term is understood and applied regardless of self-identification of adherents. Therefore, a person who attempts to proselytise for a church or is seen as active within a church that is identified by authorities as a ‘Shouter’ church faces a high risk of official discrimination. Local Church members do not attract the same amount of attention as Falun Gong or The Church of Almighty God, but DFAT notes inconsistent sources and information. DFAT assesses that identification as a ‘Shouter’, regardless of which church an adherent belongs to, may still lead to government attention, including imprisonment under the same provisions of law as other xie jiao.[3]
[2] DFAT Country Information Report, China, 3 December 2021, sections 3.53-3.56
[3] DFAT Country Information Report, China, 3 December 2021, sections 3.71-3.74
In January 2017 Reuters reported that:
China will crack down further on what it calls “cults” with a new judicial interpretation released on Wednesday [25 January 2017] mandating harsh punishments for groups proselytising to government officials or children or linking up with foreign groups. […] Authorities have gone after what they view as cults, which have multiplied in recent years, and demonstrations have been put down with force and some sect leaders executed. ‘The judicial interpretation, release by the Supreme People’s Court and state prosecutor, list seven areas for which offenders will face tough penalties, including carrying out cult activities in public or trying to recruit children or state bureaucrats. ‘In cases considered less serious, where adherents repent and leave the cult, or where they have been coerced into joining a cult, there is an option for punishment not to be imposed, the interpretation states[4].
[4] Reuters, ‘China to crack down further on 'cult' activities’, 25 January 2017
Bitter Winter noted in its article ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’ that:
On September 18 2017, the revamped China Anti-Cult (xie jiao) website reiterated the list of banned groups which had been listed publicly in 2014. Of the total 20 groups, eleven were listed as being “dangerous:” 1.Falun Gong, 2.The Church of Almighty God, 3.The Shouters, 4.The Disciples Society, 5.Unification Church, 6.Guanyin Method, 7.Bloody Holy Spirit, 8. Full Scope Church, 9.Three Grades of Servants, 10.True Buddha School, 11.Mainland China Administrative Deacon Station. In addition, the website warned the public to “be on guard against” an additional nine groups: the Lingling Church, the Anointed King, the Children of God, Dami Mission, the New Testament Church, the World Elijah Gospel Mission Society, the Lord God Sect, the Yuandun Dharma Gate, and the South China Church. From this list it appears there are two categories of groups, eleven major (“dangerous”) groups, and nine others, for a total of 20[5].
[5] Bitter Winter, ‘The List of the Xie Jiao, a Main Tool of Religious Persecution’, 11 November 2018
Human Rights Watch noted in its 2019 world report that ‘The government classifies many religious groups outside its control as “evil cults,” and subjects members to police harassment, torture, arbitrary detention, and imprisonment’[6].
[6] Human Rights Watch, ‘World Report 2019’, 17 January 2019
The 2017 US State Department Report on Religious Freedom Report noted that:
The law bans certain religious or spiritual groups. The criminal law defines banned groups as “cult organizations” and provides for criminal prosecution of individuals belonging to such groups and punishment of up to life in prison. There are no published criteria for determining, or procedures for challenging, such a designation. A national security law explicitly bans “cult organizations.” The CCP maintains an extralegal, party-run security apparatus to eliminate the Falun Gong movement and other such organizations. […] The government also considers several Christian groups to be “evil cults,” including the Shouters, The Church of Almighty God (also known as Eastern Lightning), Society of Disciples (Mentu Hui), Full Scope Church (Quan Fanwei Jiaohui), Spirit Sect, New Testament Church, Three Grades of Servants (San Ban Puren), Association of Disciples, Lord God religious group, Established King Church, the Family Federation for World Peace and Unification (Unification Church), Family of Love, and South China Church[7].
[7] United States State Department, ‘2018 Report on International Religious Freedom’, 21 June 2019
The 2018 US State Department Report on Religious Freedom Report noted that:
The Church of Almighty God reported authorities subjected 525 of its members to “torture or forced indoctrination” during the year [2018]. The Church also reported members suffered miscarriages after police subjected them to “torture and abuse” in detention facilities.[…] The Church of Almighty God reported authorities arrested 11,111 of its members during the year, of which 2,392 remained in custody.[8]
[8] United States State Department, ‘2018 Report on International Religious Freedom’, 21 June 2019
The 2017 Congressional-Executive Commission on China annual report stated that:
In January 2017, the authorities issued a joint interpretation of Article 300 that set out new sentencing guidelines and expressly criminalized certain forms of Internet usage to disseminate information about a "cult", among other revisions.[9]
[9] CECC, ‘2017 Annual Report’, 5 October 2017
Of particular concern to the Tribunal is the increasing focus of the Chinese authorities since 2017 on members of Christian sects that it views as cults or cultlike. This includes the ostensible elevation of members of the Local Church (or Shouters) since 2017 to groups that are viewed as ‘dangerous’ through its listing on the ‘Xie Jiao’ website. I note and highlight that the Chinese criminal code ‘provides for prison sentences of up to seven years for individuals who use ‘superstitious sects, secret societies or evil religious organisations’ to undermine the state’s laws or administrative regulations’[10]. While I note that country information suggests that these provisions in Chinese law related to ‘superstitious sects, secret societies or evil religious organisations’ have been used historically to target members of Falun Gong, I note (and am concerned by) the fact that members of the Local Church (or Shouters) were specifically listed as one of 11 banned groups described as ‘dangerous’ and a cult[11] by the government, a grouping that included Falun Gong practitioners.
[10] DFAT Country Information Report, China, 3 December 2019, section 3.93
[11] DFAT Country Information Report, China, 3 December 2019, section 3.94
This increased attention on the Local Church by Chinese authorities, and their previous elevation onto the ‘Xie Jiao’ website list, appears to coincide with[the applicant] ’s account of increased surveillance and scrutiny of his church group’s activities.
Taking into account such country information about the specific risks faced by members of the Local Church (or Shouters) in China from the Chinese government and the government’s increasing scrutiny of the group, and [the applicant] ’s personal circumstances and experiences, I accept that if [the applicant] were to return to China and continue to practise his Christian faith as part of the Local Church, there is a real chance he would suffer discrimination amounting to persecution by the state. I accept that members of the Local Church (or Shouters) are at a heightened risk of persecution than are Christians from other more mainstream sects or denominations of the faith.
Having considered the available country information and [the applicant] ’s specific circumstances, particularly (as detailed above) the information relating to the treatment of members of the Local Church (or Shouters), I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from the Chinese government if he were to return to China, for reasons relating to his religion and/or his membership of a particular social group, namely that of adherents of the Local Church (or Shouters), and/or members of ‘superstitious sects, secret societies or evil religious organisations’, as required by s 5J(4)(b) of the Act, in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that[the applicant] ’s religion and his membership of a particular social group of adherents of the Local Church (or Shouters), and/or members of ‘superstitious sects, secret societies or evil religious organisations’ is the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his religion and membership of that particular social group.

Pursuant to s 5J(6), I am satisfied that the reasons [The applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that were not engaged in by him in Australia for the purpose of strengthening his claim to be a refugee.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.
I am satisfied that[the applicant] , as a citizen of China, has the right to relocate within China. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[12]
[12] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453
I have considered if [the applicant] faces a real chance of persecution in all areas of China as required by s 5J(1)(c) of the Act. In considering [the applicant] ’s circumstances and the ‘reasonableness’ of him relocating within China, I have considered the following finding by DFAT:
DFAT assesses internal relocation is possible unless a person has attracted adverse attention from authorities at the local or national level or has a low social credit score. People subject to adverse attention from authorities or with a low social credit score are unlikely to be able to re-locate internally, due to the Chinese state’s significant surveillance capability and ability to restrict finances and travel.[13]
[13] DFAT Country Information Report, China, 3 December 2019, section 5.33
I do not consider it would be possible for [the applicant] to move away from his home area to another area of the country and not reveal his faith as I accept that if [the applicant] returned to China he would wish to continue to observe and practise his Christian faith, including by attending the Local Church, and that were he to do so he would be identifiable to the authorities, and the community at large, as a member of the Local Church. For these reasons, I am satisfied that [the applicant] would face a real chance of persecution in all areas of China.
Accordingly, the Tribunal accepts [the applicant] has a well-founded fear of persecution in China for reasons of his religion and his membership of a particular social group as a member of the Local Church (or Shouters), and/or members of ‘superstitious sects, secret societies or evil religious organisations’ from the Chinese government or state.
Whether the applicant could take reasonable steps to modify his behaviour
I note that s 5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic. In this case I am satisfied that the modification would require [the applicant] to alter his religious beliefs, including by renouncing his Christian faith, or concealing his true religious beliefs, or ceasing to be involved in the practice of his faith as per s 5J(3)(c)(i). Therefore s 5J(3) does not apply and I am satisfied [the applicant] ’s fears of persecution for the reasons set out above are well-founded.
The availability of effective protection measures
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2) of the Act. I have considered if effective protection measures are available in China as required by s 5LA. The harm that [the applicant] fears is directly from the State and he therefore claims that the Chinese authorities will not protect him from that harm.
Based on the country information set out above, when considered in the context of the particular circumstances of [the applicant]’s case, I am not satisfied that the State (or any other entity) is willing and able to offer protection to him as a member of the Local Church. In addition, I am not satisfied that effective protection measures (as per s 5LA) provided by the State (or any other entity) are available to [the applicant] in China. Based on this country information, I find that [the applicant] would not be able to access effective protection if returned to China for the purposes of s 5LA(2).
Conclusion
Considering [the applicant] ’s particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm from the Chinese government, if he returns to his home area in China. I am satisfied that the real chance of serious harm [the applicant] will face if he returns to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm he faces relates to his religion and/or his membership of a particular social group as a member of the Local Church (or Shouters), and/or as a members of a ‘superstitious sects, secret societies or evil religious organisations’.
For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Scott Clarey
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 3285

20 April 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Standing