2216147 (Refugee)

2216147 (Refugee) [2024] AATA 1582 (7 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Harry Huang (MARN: 9579277)
CASE NUMBER: 2216147

COUNTRY OF REFERENCE: China
MEMBER:Damien Power
DATE:7 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 07 March 2024 at 11:51am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – underground church – detention – sending religious materials to China – periods of unlawful residence – church activities in Australia – minors receiving religious instruction – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of China, applied for the visas on 7 November 2019. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations.
The primary applicant appeared before the Tribunal on 10 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review. However, the applicant’s agent was unable to attend the hearing.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [age] years of age from Fujian province in China. He is of Han ethnicity. His parents still reside in Fujian, and he has a [sibling] residing in Australia and [another sibling] living in Fujian. He is married and has a daughter.
The applicant met his partner in Australia, and they have two sons. The applicant’s youngest son is the second named applicant. His oldest son was also born in Australia and is now an Australian citizen.
The applicant speaks, reads and writes Mandarin. He undertook all his schooling in Fujian province.
Evidence before the Department
Migration History
[In] March 2004, the applicant arrived in Australia on a student visa.
On 7 November 2019, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 25 October 2022, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information.
Before the applicant came to Australia, he was studying at [School 1]. He got to know a student named [Friend A]. Both the applicant and [Friend A] belonged to underground churches.
Because the Chinese government pays more attention to high school students who are involved with underground churches, the applicant and [Friend A] had to be very careful. They could only pray together secretly.
The applicant came to Australia before completing his studies at [School 1] but kept in touch with [Friend A] via the internet and telephone.
After graduating school and working in a [shop], [Friend A] spent a decade with his uncle in [Country 1]. [Friend A] and his uncle eventually returned to China in January 2018 after they encountered trouble with local [Country 1] gangsters. The applicant’s uncle was disabled after being attacked by the gangsters.
The applicant had his own difficulties in Australia. His family’s business ran into trouble and the applicant could not complete his studies. He also suffered poor health for quite a long time. However, his situation gradually improved after he met his first wife, [named]. They were married in August 2013. However, they eventually divorced in April 2019.
In September 2019, the applicant started living with his current partner, [Partner A]. The applicant first met [Partner A] in January 2011, when they had a brief encounter. Unbeknownst to the applicant, [Partner A] later gave birth to a son [Son A] as a result of their encounter.
When the applicant and [Partner A] reunited, he learnt of [Son A’s] existence and was deeply moved that [Partner A] had raised their son by herself. They decided to stay together.
When the applicant arrived in Australia, he was less than [age] years old. He experienced difficulties and made a lot of mistakes. However, God did not abandon him and learnt more about God’s revelations through his trials and afflictions. The applicant is now an active member of [Church 1].
The applicant had kept in touch with his childhood friend [Friend A] after the latter’s return from [Country 1]. [Friend A] was self-employed and had married a woman named [Ms A]. They were Christians, and [Friend A] joined the [Church 2] that his wife attended.
The [Church 2] was a state church, controlled by State Administration for Religious Affairs (SARA). The situation for religion had gotten worse after new regulations on religious affairs had come into effect.
[Friend A] and [Ms A] became dissatisfied with the atmosphere in the state church. They started their own religious group at their home. Over the course of a year, the group developed from around 10 people to more than 60. At their request, the applicant sent a lot of overseas religious materials to [Friend A] and [Ms A] during this period.
As [Friend A] and [Ms A’s] religious group increased in size, they came under the increasing scrutiny of authorities. The couple were warned and threatened, and then questioned and harassed by the police. However, the couple insisted on continuing their religious gatherings. [In] October 2019, their home was raided by police and from the [named] Public Security Bureau (PSB) and both [Friend A] and [Ms A] were arrested.
When the police raided the home of [Friend A] and [Ms A], they found the materials sent to them by the applicant. Due to the confessions made by the couple, the police believed that the applicant supported their illegal activities. The applicant was blacklisted by the PSB.
If the applicant returns to China, he will be arrested and imprisoned. He will be subjected to persecution and suffer significant harm.
Interview with the delegate
The applicant was invited to an interview with the Department on 13 July 2022.
The applicant was asked about the practice of his faith, both here and in Australia. He re‑stated his claims that he had sent religious materials to a childhood friend, [Friend A]. He claimed that he had been blacklisted by the PSB when those materials were found. He also claimed that his father had been approached by the PSB and that they had warned his father that the applicant should cease sending any further religious materials.
Delegate’s decision
The delegate was not satisfied that the applicant was a genuine or fully committed Christian. The delegate pointed to a number of factors, including the applicant’s significant delay in applying for protection and in baptising his children. The delegate did not accept that the applicant had sent religious material to a friend in China or that he was of adverse interest to the authorities there.
Evidence before the Tribunal
Application for review
On 3 November 2022, the applicant lodged an application for review of the delegate’s decision with the Tribunal. They provided the Tribunal with a copy of the delegate’s decision.
Additional submissions or evidence
The applicant presented a photo of religious activities, various testimonials from other church members and a letter from [Church 1] prior to the hearing. The applicant submitted a further letter of support from the assistant minister of the church subsequent to the hearing.
The hearing
The applicant attended a hearing on 20 December 2023.
The applicant gave evidence about his background, work history, and his family in China. He also gave evidence regarding his claims to have been an underground Christian. He also gave evidence on his religious practice here in Australia.
The applicant’s evidence at hearing, where relevant to the consideration of his claims, is discussed in detail under Consideration of Claims and Evidence.
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.
Nationality
The primary applicant provided a copy of the bio-data pages of his People’s Republic of China (PRC) passport. A birth certificate was provided for the child applicant. The delegate was satisfied as to the applicants’ identities and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicants’ identities and that their receiving country for the purposes of assessing their claims for protection is the People’s Republic of China. There is no evidence that the applicants are nationals of or have a right to enter and reside in any country other than China.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant claims to be a practising Christian. He claimed that his family had attended a ‘house’ church in their village in China. The applicant began attending church when he was around ten years of age. All the applicant’s family attended the church, although the applicant and his siblings would attend less frequently than their parents because his parents told him it was not approved by the authorities, and they worried about his safety.
The applicant eventually left the village in [specified year] in order to attend [School 1] in Fuqing city. In his written claims, the applicant stated that he was aware that the PRC authorities “pay much more attention” to high school students who may be involved in underground churches. At hearing, he stated that religious topics were forbidden at the school. He stated that he met another student there that was also a member of an underground church. The friend’s name was [Friend A]. He only discussed religious matters in private with [Friend A] and they would sometimes pray together. The applicant cut short his time at [School 1] in February 2004 to come to Australia.
The applicant arrived in Australia on a student visa in 2004. The applicant was asked a number of questions about the considerable period he spent in Australia before he applied for protection in 2019.
The applicant stated that he after arriving in Australia in 2004, his family’s fortunes took a turn for the worse. His father lost a lot of money on business ventures, and the applicant was unable to continue studying. I asked the applicant why he did not seek to return to China when his study option fell through. He stated that he did not want to go home because he did not want to let his parents down. He had originally wanted to pursue studies in the field of [subject 1] and was still very interested in pursuing his studies when circumstances permitted.
The applicant was asked whether he had ended up undertaking any [subject 1]‑related or other studies in the approximately two decades he has spent in Australia. The applicant replied that he had not. He said that previously he had thought that taking up studying again might be an option at some point, but he had never found the time nor the opportunity to resume his studies.
The applicant was also asked, under the provisions of section 424AA, about a number of periods where he had been unlawful and where he had admitted to the delegate that he had not had any fear of returning to China at that time. It was put to him that this was significant because it indicated that he had a motivation to stay in Australia that lay outside of any claims for protection, and therefore called into question the credibility of those claims. He was asked why he had not sought to return to China. The applicant stated that his father had spent a lot of money and he wanted to help the family out with their financial issues.
The applicant was unable to give a convincing account of why he stayed in Australia for so many years, including periods where he was unlawful. He initially claimed that he stayed because he was very committed to undertaking [subject 1]-related studies and wished to pursue them again when he had more money. However, in the approximately two decades since he arrived in Australia the applicant confirmed that he has not pursued further study of any kind. The applicant also confirmed that in the period from 2004 until he re-joined the church in 2015, there were significant stretches of time when the applicant acknowledged that he had no personal concerns for his safety in China but did not seek to return there.
Regardless, the applicant claims that after a long period where he lost touch with his faith, he finally joined a church in 2015 – [Church 1]. He said that he was led back to church by the intervention of a friend, [Friend B], who came from the same village in China as the applicant. I accept that the applicant joined the [Church 1] at that time and continues to be a member of that church.
The applicant was asked a number of questions about his religious practice and about the bible. Some of the applicant’s responses, when asked to describe the meaning of the passages he cited from the bible or the importance of religion in his life, were often superficial. When asked how he had found his way back to the church after so many years of not practising his religion, his answer was not especially enlightening. He merely said that his friend, [Friend B], had prayed for him and that he believed she had been sent by God to guide him. He said that he did not provide a letter from [Friend B] because she was not an Australian citizen and she had told him her letter would not be of any use.
However, the applicant was able to explain bible passages and stories in some detail and has clearly had a good deal of exposure to Christian practises and the bible. He also provided testimonials from other parishioners. I also place great weight on an updated reference from the assistant minister of the church that clearly indicates he is personally known to the assistant minister and details the applicant’s participation in the church. I accept that the applicant is a longstanding member of [Church 1] and that he has been diligent in attending that church. I accept that the applicant is a practising Christian.
The applicant was asked about the significant delay in baptising his children. The applicant’s explanation was that the Minister had advised him that children could not be baptised as the preference was to wait until they were older. I said I had difficulty accepting that a minister of his church would have advised him that. The applicant then explained he was referring to the minister back in China. The applicant also indicated that he preferred to wait until the children were older and knew more about religion. He also said that he was unaware until recently that children and infants were baptised in his current church.
The applicant has been a member of the church since 2015. The church clearly practises infant baptism as evidenced by material on their website[1], and by the fact that his very young son was baptised at [Church 1] in October 2022 (when he was just [age] years of age). It was put to the applicant that his church practised infant baptism, that this information was on their website, and that they presumably had conducted many such baptisms over the years. Given this I said I was having difficulty understanding why this had not been apparent to the applicant that infants were baptised at the church, noting he was a church member of long standing. In reply, the applicant stated that he simply had not noticed it.
[1] [Source deleted.]
The applicant is currently still in a de facto relationship with his partner. I said to the applicant that he had now been back with his current partner for more than four years but had not yet sought to get married within the church. Given his previous statements about the importance of marriage, I said this might lead me to doubt the applicant’s commitment to his faith. The applicant said that he had gone to the priest and sought to get married, but that COVID had intervened. Their preferred Minister at another religious organisation had been unavailable for a period. He also said that his wife had been busy with her job.

It was put to the applicant that there were other ministers, including at his own church, who could have married them, noting that they had found a minister to baptise their children. I asked the applicant why it was not more of a priority for him to sanctify their union. The applicant again mentioned COVID and the demands of his partner’s work. I again put it to the applicant again that there a number of options open to him to get married in the church and wondered why he had not done so earlier. The applicant claimed that he had talked to ministers in his church and that they had stressed with him the importance of getting married but was unable to explain why he was still not married.
The applicant then explained that he had registered to get married at Birth, Deaths and Marriages (BDM) in NSW. I asked the applicant why he had applied to get married by the state rather than within in his church. He said that he did not see any difference between getting married by the state or in the church, as long as he had the blessing of his minister. This explanation is somewhat at odds with the applicant’s earlier response that he postponed his marriage because their preferred minister was unavailable. The applicant also did not explain why, if he was willing to get married at a BDM registry, he did not get married in a civil ceremony much earlier.
Nonetheless, I accept that the applicant is now married. On 19 February 2024, the applicant’s agent forwarded photos of the applicant’s wedding ceremony and a certificate of marriage from the NSW registry of Births, Deaths and Marriages.
The applicant claimed that he had sent religious material to [Friend A], his high school friend from [School 1], and had come to the adverse attention of the Chinese authorities as a result. The applicant stated that he sent his friend a parcel of religious material. He claimed that this material was found by the authorities when his friends were arrested. His identity as the sender of the religious material was disclosed by his friends under interrogation. Consequently, the applicant was placed on a blacklist by the PRC authorities.
The applicant claimed that he was drawn to his friend, [Friend A], because of their shared commitment to an underground church. However, the applicant had effectively abandoned his own practice of religion for many years after arriving in Australia. I asked the applicant had led him to stay in touch with [Friend A] for so long, given that for many years he had not been religious or a practising Christian. The applicant simply said they were good friends, so they stayed in touch. He said they had stayed in touch by phone and via a Chinese social media app. The applicant claimed that he had stayed in touch with his friend via this app even during the time his friend spent in [Country 1]. The applicant was not able to give very much detail about his friend [Friend A] or explain what led him to remain in contact with this friend for so long, especially during the decade or that the applicant was not religious and had faced many personal issues.
The applicant also stated at hearing that he had sent [Friend A] just one package of religious materials in October 2018. He stated that [Friend A] was arrested a year later, in October 2019. However, despite only sending him just a single package of religious material a year prior to [Friend A’s] arrest, the applicant claimed that this material was found, his friends were interrogated about it and that they disclosed his identity to authorities.
I have some difficulty accepting the applicant’s claim to have stayed in communication for 14 years with a religious friend he met relatively briefly as a teenager, despite falling entirely out of any religious practice himself for more than a decade, or to have fallen afoul of the authorities because of a single parcel of religious material sent to his friend a year before their claimed arrest.
More significantly, the applicant claimed to have been unaware that there would be any sensitivity or risk involved in sending religious materials to his friend in China. The applicant claimed to have been an underground Christian in China and talked about how careful he was in raising religious topics at [School 1]. The applicant also re-joined the church in 2015. Information on the difficult conditions for Christians in China is widely available in Australia. The applicant also noted in his own evidence that his friend was dissatisfied with the church and committed to opposing the Chinese Communist Party (CCP). The wording in his statement of claims states his friend began setting up religious meetings in his home in August 2018 in order to ‘cast off the yoke of Communist dictatorship’.
Given the above, I put it to the applicant that I was having some difficult accepting that he could be unaware that sending religious materials to China entailed some risk. In response, the applicant claimed that it was only after he was put on the blacklist that he began looking at conditions in China and came to understand that state churches were managed by the communist state for their interests and not for the purpose of exalting or worshipping God. After doing this research, he became more certain that there was no freedom of religion in China.
I put it to the applicant that he claimed he had grown up in an underground church, his wife was an underground Christian, and had talked about the need to be very discreet about raising religious matters while a teenage student at [School 1]. I also said that my experience of Chinese Christians in Australia is that they are usually keenly aware of the issues facing Christians in China. I put it to the applicant that given his personal experience of being an underground Christian, and the information he had available to him here in Australia, I might find it difficult to accept that he could send religious materials to his friend in 2018 and be unaware that might entail some risk. In response, the applicant said that he did not know at that time the extent to which PRC authorities sought to control religion or realise that sending the materials would cause such an issue for the communist authorities. He also claimed that the new rules that had come in were stricter and had focused more on overseas influences.
I find the applicant’s statements that he only became aware about the sensitivities of PRC authorities regarding religious materials after he was put on a blacklist to be significantly at odds with his written statement of claims and his earlier statements at hearing. The applicant claimed to have been an underground Christian and spoke at the hearing of his awareness, even as [an age] year‑old, that the Chinese authorities ‘paid much more attention’ to students involved in underground churches. He also spoke of having to exercise great discretion in raising religious issues at the school. His written claims also indicate that he knew the aim of the group he claimed his friend [Friend A] began in August 2018 was to “cast off the yoke of Communist dictatorship”. The applicant also stated at hearing that he knew the material he sent was produced ‘internationally’ but could not be spread in China.
At the conclusion of the hearing, it was drawn to the applicant’s conclusion that the reference from the assistant minister of his church submitted to the delegate and the version submitted to the Tribunal were identical in their wording, notwithstanding that they have a different date. The applicant was advised it might be helpful to obtain an updated reference from his Minister that also described the applicant’s involvement in the life of the church. The applicant was given additional time to do so.
On 15 January, the applicant duly provided an additional letter of support from the assistant minister of his church. I have taken account of that letter and I accept that the applicant is personally known to the assistant minister and that he is a practising Christian. The reference also underscores the applicant’s ongoing and active involvement with his church. However, the updated reference does not make any reference to the claims the applicant raised at hearing regarding the events which he says put him on a PSB blacklist.
Given all the above, I do not accept that a person of the applicant’s background would be unaware that there may be a risk in sending religious material into China, especially to someone he knew was opposed to the Communist Party’s administration of religion. I do not accept that the applicant sent religious materials to a former childhood friend. By the same reasoning, I do not accept that the applicant (or anyone in his family) ended up on a blacklist or has any sort of profile with the PRC authorities as a result.
The applicant has claimed that he proselytised and that he actively supported Christians in China. In that regard, the applicant was asked what else he did as part of his church life. He said that he would invite friends to come to meetings at church, particularly around festivals or other special events. Sometimes these friends were Christians from other parishes, but some of the friends were not religious. When I asked if any of the non-religious friends had become members of the church, the applicant stated it had been hard for them to attend church but that he had prayed for his non-religious friends. The applicant also said that he would sometimes be given leaflets with evangelising material and would put them in people’s letterboxes.
Beyond the instance when he claimed to have sent religious materials to his [Friend A] in China, the applicant did not mention any further examples of assisting Christians in China. However, as set out above, I do not accept that the claim regarding sending material to his friend in 2018 is credible.
The applicant’s testimonials from fellow church goers and his assistant minister of his church attest that he is a committed Christian who often helps out with additional activities such as cooking food, or cleaning and setting up for events at the church. However, none of the testimonials refer to proselytising activities carried out by the applicant. Similarly, the support letters do not state that he has publicly represented the church in any way or holds any sort of official role there.
However, I accept that the applicant has occasionally discussed his faith with non-religious friends and invited them to his church. Although he has not been especially active in promoting his faith in Australia, I also accept that he has also handed out flyers and assisted with public‑facing events at his church.
Although I do not accept that the applicant sent religious materials to a friend, I do accept the applicant is a practising Christian and that he has been involved in efforts to promote his church to others.
I accept that the applicant is a practising Anglican and genuine Christian, and that he assists his church with voluntary work. I consider that he is someone who has made pragmatic accommodations in the observance his faith to suit his lifestyle and other demands, as evidenced by his significant delay in baptising his children, his delay in getting married to his current partner, and his decision to get married in a civil rather than religious ceremony. Nonetheless, I accept that the applicant has been a longstanding and active member of his church for almost a decade now.
Notwithstanding some of the reservations noted above regarding his religious practice, the applicant has provided evidence that he is known to the church and that he assists with its activities. The applicant has also provided evidence that his family is involved with the church, and that his older son participates in religious studies there. This is documented not only in the various testimonials provided by the applicant, but also by his assistant minister and the photos provided by the applicant.
The applicant has also claimed to fear harm on return to China more generally on the basis of his faith. He spoke at hearing of the repressive atmosphere in China for Christians and stated that he would be unable to continue attending church as a family in China. These claims are examined below.
Country information indicates that China exercises considerable oversight over religious practice in China[2]. The extent to which a house church could operate depends on its size, the nature of its worship, and on regional variations in the way regulations on religious practice are enforced[3]. Sources generally agree that those who have a formal position within their non-official churches (pastors, minsters et al) or have a leadership role are more likely to come under the direct scrutiny of authorities[4].
[2] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[3] Ibid; 'China: Treatment of members of house churches, including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019–October 2021)', Canada: Immigration and Refugee Board of Canada (IRB), 17 October 2021, 20220110153145
[4] Ibid – IRB; 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
The applicant has stated that things became worse for Christians after the implementation of new rules in 2018. In the past, Fujian province was generally considered to have a more tolerant attitude to house churches or non-official churches[5]. However, recent reporting indicates that authorities in Fujian have also pressured unofficial churches to close or merge with state-sanctioned churches[6]. DFAT also notes that Fujian, once a stronghold of underground Catholicism, has made particular efforts to convert underground bishops[7].
[5] 'CHNCI150415082947654 – Catholics in Fujian Province – State-recognised and Vatican-recognised Catholic churches in Fuqing city, Fujian.', Country of Origin Information Services Section (COISS), 18 June 2015, CRE6D9079199
[6] 'China Common Claims - December 2023', Country of Origin Information Services Section (COISS), 6 December 2023, 20231206091803 (Word), 20231206091653
[7] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 22 December 2021, 20211222100210
However, the situation for Protestant house churches is more varied. There is evidence of Catholic underground churches and larger protestant house churches being targeted in the aftermath of 2018 Regulations on Religious Affairs and further changes in 2020[8]. However, a source cited in an Immigration Review Board of Canada (IRBC) report stated that protestant house churches are ‘mainstream’, holding beliefs and practices similar to official churches and are treated more leniently. Another source indicated that increasing crackdowns on Christian worship after the introduction of the 2018 Regulations on Religious Affairs only applied more systematically a trend that had been in place even before the regulations came into effect. Some sources quoted in the IRBC report noted that churches operating on the south-eastern coastline of China were less restricted in their operations, with one response particularly noting Fujian as being one of the provinces that experienced less restrictions[9].
[8] 'Situation Update: Christians (October 2023 - Word)', Country of Origin Information Services Section (COISS), 27 October 2023, 20231027144607
[9] 'China: Treatment of members of house churches, including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019–October 2021)', Canada: Immigration and Refugee Board of Canada (IRB), 17 October 2021, 20220110153145
In its report on China from December 2021, DFAT states that smaller Protestant churches not linked to any central hierarchy or authority are less likely to be seen as a threat and be targeted by authorities[10]. It notes that it is aware of protest communities that are largely unaffected by increase government oversight and whose religious activities continue largely without interference[11]. The IRBC has noted an increase in harassment and pressure for larger or more visible Protestant ‘house’ churches, but also quotes sources as saying while such ‘house’ churches are not recognised by the state, many are able to operate as long as they strike ‘a careful balance’ with the concerns of CCP and ensure they avoid association with Western influences[12].
[10] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 22 December 2021, 20211222100210
[11] Ibid
[12] 'China: Treatment of members of house churches, including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019–October 2021)', Canada: Immigration and Refugee Board of Canada (IRB), 17 October 2021, 20220110153145
However, other recent sources point to an increasing and increasingly oppressive focus on unregistered places of worship. Sources including Amnesty International, Human Rights Watch and the US Department of State have all pointed to ongoing crackdown on unregistered places of worship[13]. While the focus of the PRC authorities’ attentions has been on church leaders and clergy, these sources also report instances of ordinary church members being arrested and detained.
[13] 'Human Rights Watch World Report 2024', Human Rights Watch (HRW), 11 January 2024, 20240112083455; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, 20230328142801; '2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', United States Department of State, 15 May 2023, 20230516091411
This policing of churches and religious belief is also taking place in the context of heightened (and increasingly intrusive) monitoring of the population by the PRC authorities. DFAT has noted that police have access to ‘enormous’ amounts of data, as well as an extensive number of closed-circuit television (CCTV) cameras[14]. Freedom House also notes the prevalence of surveillance cameras and the augmentation of this network with facial recognition software[15]. Administrators of social media applications closely monitor user discussions[16]. Electronic surveillance is bolstered by neighbourhood committees and “public security volunteers” who monitor the population in the real world[17].
[14] 'DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, 20211222100210
[15] 'Freedom in the World 2024 - China', Freedom House, 29 February 2024, 20240301084828
[16] Ibid
[17] Ibid
The applicant stated at hearing that he would wish to continue attending church as a family and that he would be unable to do so if he returned to China. He said that he could not change this habit. I accept that if the applicant were to return to China, he would wish to continue practising his faith as a family.
I note that the applicant’s youngest son (as with his older son) has only recently been baptised within the church. I consider that the applicant’s son is too young to make any conscious or informed decision to follow a religion. However, the applicant also has another son who is [age] years of age and who currently participates in youth programs with the church. Although the applicant’s older son is not an applicant for protection, I consider that he would accompany his parents if they had to return to China.
Multiple country information sources confirm that minors are forbidden from receiving religious instruction[18]. This prohibition extends to receiving religious instruction even at school associated with or set up by religious organisations[19].
[18] 'China: 20230428112120 - Restriction on religious practice for minors', Country of Origin Information Services Section (COISS), 17 May 2023, 20230517124542
[19] Ibid

The IRBC has quoted sources as saying that the regulations against people under the age of 18 entering a church are now being enforced, where previously the approach was more lenient[20]. China Aid has stated that those parents and church leaders who resisted the bans have been detained by the PRC authorities[21]. China Aid also claimed that in some instances children found on church premises were themselves detained[22].
[20] 'China: Treatment of members of house churches, including Protestant, Catholic, and other Christian house churches, by the authorities; the enforcement of the revised regulation on religious affairs in 2018; legal recourse (2019–October 2021)', Canada: Immigration and Refugee Board of Canada (IRB), 17 October 2021, 20220110153145
[21] ‘ChinaAid's Annual Persecution Report 2022', China Aid Association, 14 February 2023
[22] Ibid
I consider that if the applicant’s older son were to discuss his previous experiences with his faith on return to China, this would increase the chances of his parents facing adverse attention from the PRC authorities. The applicant’s oldest son is only [age] years of age. I consider that a child of that age is generally less capable of self-regulation than an adult and that there is a risk of the child referring to or raising his previous religious practice. The Christian advocacy group, Open Doors, has reported that children in some parts of China have faced pressure to tell teachers and the local authorities if their parents are active adherents of any religion[23]. I also consider that after such a long time away, the family is likely to attract some attention on return, even if that does not initially entail formal monitoring by the authorities.
[23] ‘China: Full Country Dossier ', Open Doors, 28 March 2023, pp. 50 – 51, 20230328154349
In any event, the country information cited above clearly underlines the prohibition against any form of religious instruction for minors.
The applicant has also contended that state run churches are run primarily for the benefit of the CCP. He considers that they are not real churches, because their primary aim is the support of the CCP and not the glorification of God.
According to the US State Department, the government continued its ongoing campaign to “Sinicize” religions and bring religious practices in line with CCP doctrine. Measures 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[24].
[24] '2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)', United States Department of State, 15 May 2023, 20230516091411
These initiatives were complemented by widespread censoring of religious content online, restrictions on ‘unauthorised’ online broadcasts of religious services, and restrictions on the printing and distribution of bibles and other religious texts[25].
[25] Ibid
A report from the IRBC quotes an expert as saying that biblical scriptures have been removed from the inside even of registered churches that are part of the Protestant Three-Self Patriotic Movement (TSPM), and that they have been ‘discouraged’ from celebrating Christmas[26]. The same source indicated that CCP cadres also monitor religious worship in registered Christian churches.
[26] 'China: Treatment of members of Christian Patriotic Churches, including the Protestant Three-Self Patriotic Movement (TSPM) and the Chinese Catholic Patriotic Association (CCPA) [Chinese Patriotic Catholic Association (CPCA)', Research Directorate, Immigration and Refugee Board of Canada, Immigration and Refugee Board of Canada, 10 May 2022, 20220602123639
I accept that the applicant is genuine in his belief that state-sanctioned churches are not legitimate places of worship. I also accept that the applicant’s arguments regarding state‑run churches have some merit and are supported by the available country information. I do not consider that the applicant would choose to worship in a state-sanctioned church or that to do so would be consonant with his faith.
The country information above also indicates that the space for genuine Christian worship outside of the state registered or TSPM system is shrinking. It further indicates that the applicant would be unable to continue safely attending any sort of religious venue with his children. I also consider, based on the available country information, that the applicant would also be unable to safely promote or extol his faith to others, even in the relatively modest way he has in Australia.
When I consider the information above, individually and cumulatively, I am satisfied that the applicant would be unable to meaningfully practice his faith with his family or be a part of an open church community in the way that he is able to here in Australia. I also accept that the applicant would not attend a TSPM or state-sanctioned church. Alternatively, I find that if the applicant were to attempt to practice his faith in a way that is meaningful to him, promote his faith to others or to worship with his family at a house or ‘underground’ church, he would be at real risk of serious harm from the PRC authorities.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations 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’s son is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. 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
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Damien Power
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.
…

[2024] AATA 1582

7 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Remedies

Procedural Fairness