[2007] RRTA 51 (14 March 2007)

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1 [2007] RRTA 51 (14 March 2007) DECISION RECORD RRT CASE NUMBER: DIAC REFERENCE(S): COUNTRY OF REFERENCE: TRIBUNAL MEMBER: CLF2006/ China (PRC) Phillippa Wearne DATE DECISION SIGNED: 14 March 2007 PLACE OF DECISION: DECISION: Sydney The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention.

2 STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing an application by the applicant for a Protection (Class XA) visa. The applicant was notified of the decision under cover of a dated letter and the application for review was lodged with the Refugee Review Tribunal (the Tribunal/ RRT). The applicant is a citizen of the People s Republic of China (China). She arrived in Australia and applied for a Protection (Class XA) visa. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The Tribunal finds that the delegate s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.412 of the Act. RELEVANT LAW In accordance with s.65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in s.36 of the Act and Parts 785 and 866 of Schedule 2 to the Regulations. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged, although some statutory qualifications enacted since then may also be relevant. Section 36 of the Act relevantly provides that: (2) A criterion for a Protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; Protection obligations (3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country. (5) Also, if the non-citizen has a well-founded fear that: (a) a country will return the non-citizen to another country; and

3 (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion; subsection (3) does not apply in relation to the first-mentioned country. Subsection 5(1) of the Act defines the Refugees Convention for the purposes of the Act as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol as the Protocol relating to the Status of Refugees done at New York on 31 January Definition of refugee Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention relevantly defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1 and Applicant S v MIMA (2004) 217 CLR 387. Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Secondly, an applicant must fear persecution. Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve serious harm to the person (s.91r(1)(b)), and systematic and discriminatory conduct (s.91r(1)(c)). The expression serious harm includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant s capacity to subsist: s.91r(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

4 Thirdly, the applicant must fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The phrase for reasons of serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91r(1)(a) of the Act. Fourthly, an applicant s fear of persecution for a Convention reason must be a wellfounded fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a well-founded fear of persecution under the Convention if they have genuine fear founded upon a real chance of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A real chance is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. CLAIMS AND EVIDENCE The Tribunal has before it the (then) Department of Immigration and Multicultural and Indigenous Affairs (the Department) case file 2006/118829, which includes the applicant's original protection visa application and the delegate's decision record. It also has the (then) Department of Immigration and Multicultural Affairs case file relating to her application for a another type of visa. The Tribunal has had regard to material referred to in the delegate's decision, and other material available to it from a range of sources. The Tribunal has also before it the applicant s RRT case file The applicant claims fear of persecution in China for the convention-related reason of religion. The applicant claims that she is a member of the local church. The Tribunal notes that this group is also known as the Shouters, Shouter Sect and huhan pai in Mandarin. Because the group itself and the applicant refer to it as the local church the Tribunal has used this name, and italicised it for clarity. Application for visa to enter Australia According to Departmental records the applicant applied for a specific type of visa and it was granted in Shanghai, China.

5 Protection visa application According to her protection visa application, the applicant is from China. She is married and has 2 sons. Her passport was issued in China. The applicant has not had any formal education. The applicant indicated in her original protection visa application that she has never been convicted of an offence, nor is she currently charged with an offence. The applicant attached a statutory declaration with her protection visa application which stated the following: 1. I am from the People's Republic of China ("PRC"), and arrived in Australia on [date]. My son, [name], is currently studying in Australia. 2. I am not willing to return to China, and I believe that I will be persecuted on my return; because I am a Christian in the Local Church which is a religious organisation not tolerated by the PRC authorities. 3. On [date], I was born in [location], Fujian Province, PRC. My family was in poverty and distress while I was a child, and I did not go to school, but had to stay at home; and assisted my parents to work in the field when I was very young. 4. Around [year], 1 started living together with my husband [name]; but our marriage was not legally registered until [date]. My first son [name] was born on [date], and my second son [name] was born [date]. 5. My husband was an honest and hard-working person who ran a stall in a market to sell vegetables. After I stayed together with him, I started assisting my husband in his vegetable business; and it was not an easy job. In order to get fresh vegetables, we had to get up very early in the morning to get them in the field, and then transported them to the market, and in very late of evening, we had to make some preparation for business of next morning. 6. Our business was gradually enlarged and developed; and finally, both my husband and I opened a [store] which was called as "[name]". 7. However, owing to long-term hard-working, my health situation became worse and worse; and I suffered from serious neck pain and stiffness with recurrent dizziness, headache, and nausea; and consistent with cervical spondylosis [arthritis of the neck] and a condition causing significant disability. In such a situation, I felt very strong mental pressure, and I had to worry about my family, my children, and my own future. 8. Fortunately, I was greatly helped by many kind people, especially by [Person A] who was a devote Christian. 9. From [date], [Person A] started taking me to attend religious gatherings at her home. The gathering group at [Person A]'s home was belonged to the Local Church, including about 20 religious sisters or brothers. [Person A] was the group leader; and she organised us to study Bible or other religious materials on every Tuesday and Thursday; and she also organised us to attend weekly worship on every Sunday.

6 10. Since I began to attend religious practice of the Local Church in [date], 1 have felt myself that I have greatly been improved, and especially, I have always been cared, supported and helped by those kind religious sisters and brothers; and I have insisted on attending most of religious gatherings or practices. 11. On [date], I was baptised; and since then, I have given everything in my life to my Lord. 12. On or about [date], [Person A] was arrested by the Public Security Bureau ("PSB"), because she was reported by someone to be a group leader of the Local Church in my village. Many Christians in [Person A]'s group, including me, were subjected to investigation by the PSB after that; and we were asked to confess "illegal" religious gatherings; and particularly, the police wanted us to expose [Person A]'s "anti-government" religious activities; but all of us refused to do so, because we firmly believed what [Person A] had done was correct. Owing to this matter, I was interrogated by the police for 5 times during period from [dates]. [Person A] was sentenced to 3-year reeducation through labour in the end. 13. Due to arrest of [Person A] as well as investigation of the PSB, our religious activities were stopped for some period; and I felt very hard without any religious gatherings, just like a child losing her home. 14. In [date], [Person B], who was a friend of [Person A] and who was also a devote Christian, was sent by the Local Church to re-organise our gathering group. At that time, [Person B] asked me whether I would like to use a small store room in the backyard of [the business] as a gathering place of our group. I immediately agreed to do so. 15. From then on, the store room of [the business] became a secret gathering place of the Local Church in my village, and [Person B] was the group leader. Everything like before, we studied Bible or other religious materials on every Tuesday and Thursday; and had weekly worship on every Sunday. 16. In [date], 1 was informed by a friend who worked at the PSB that [Person A] had been being suffered from serious illness in the labour farm; and I immediately suggested [Person B] to organise a petition requiring the government to release [Person A] at once. My suggestion was accepted by [Person B]. Since then, [Person B] organised us to send many petitions to the different government agencies, asking the government to release [Person A] as soon as possible. 17. The PRC authorities, however, never listened to our requirements and refused to release [Person A]. Moreover, the government started investigating source of those petitions. They did not have any direct evidences at that time, because all of those petitions were just in the name of "the Local Church" without any particular names. Therefore, the authorities could not find who was the actual writer or organiser for those petitions.

7 18. But, owing to my special relationship with [Person A], I have been questioned by the police for several times about those petitions. In order to escape from further investigation by the PSB, I left China not long after I got a visa to Australia. 19. Originally, I just intended to stay in Australia for the time being. However, I have been informed by my husband and other religious sisters or friends that [Person B] and other two Christians in my gathering group have been arrested by the police recently. The PSB has found that the store room in the backyard of [the business] is a secret gathering place of the Local Church, and the police have gone there for investigation at least three times, and my husband has been questioned many times. Especially, I have been regarded as an activist of the Local Church, and therefore, I must be subjected to persecution on my return. Evidence at the hearing The applicant appeared before the Tribunal to give evidence and present arguments. An interpreter in the Fujian dialect assisted the Tribunal. The applicant was represented in relation to the review. The applicant was not represented at the hearing. The applicant brought a passport that was issued in her own name to the hearing. There is no other travel other than that to Australia indicated on the passport. The applicant told the Tribunal that her youngest son was still studying in Australia. She said that he would finish studying this year. He was in his last year of school. The applicant said that she and her son shared a place in a particular suburb. Her son found the accommodation and she has shared with him since her arrival in Australia. The applicant said that since coming to Australia, she had spoken to her husband only a few times. She spoke to him twice about a month after she arrived. She said that she also spoke to him quite recently, about 11 days ago. She said that she has spoken to her oldest son two or three times since arriving in Australia. The applicant confirmed that she has had no formal education. She claims to be completely illiterate. She said that her parents were very poor, and as the oldest of five children she helped her parents growing rice and sweet potatoes in the fields, and looking after her younger brothers. When she was about 19 years old, she started living with a man who was to become her husband a number of years later. They had two sons before they were married. One son was born in a particular year, and the other several years later. They made their income by growing and selling vegetables. It was a hard life, and often the applicant brought her baby to the fields while she worked. After her second son was born, she and her husband (to be) purchased a grocery shop business. The couple worked long hours and the business eventually became successful. The applicant told the Tribunal that every morning they would get up at 2 am to prepare for the day s business. They bought animals from the local farmers and took them to the abattoir.

8 Later they collected the meat ready to sell. They also went to the markets early to buy fresh produce. They would be back to open their grocery shop at 7am. The applicant said that the grocery store was open until 9 pm every night, seven days a week. When they first started working at the grocery store they lived in a residence elsewhere. However, after several months they all moved into the grocery shop where they all shared one bedroom. The grocery store had four rooms: the shop took over two rooms and there was a bedroom, and a store room. The applicant said that by a particular year, all the hard work had started to take a toll on her health. She told the Tribunal that she suffered headaches, dizziness, nausea, sore neck and shoulders, stiff joints in her hands, tonsillitis, and prolonged menstrual bleeding. She also said that she developed mental pressure. The Tribunal asks the applicant why she felt this mental pressure at a time when the business was starting to go well and her worries would seem to have lessened. The applicant said that she had worked too hard in the past and her health problems and her worry about the future caused her mental pressure. The applicant said she and her husband both joined the local church in the mid 1990s. She said that one of her customers, Person A, introduced her to the church. Person A, who was a number of years older than the applicant, had befriended her over time and helped with all her chores. For example, she helped the applicant lift the heavy bags of potatoes, sweep, and weigh produce. The applicant said that she had felt so unwell, she had been very grateful for Person A s assistance, and that they became very close friends. She said that Person A was a devoted member of the local church and she had suggested that the applicant would feel better and happier if she joined the church. The applicant said that her husband also thought that Person A was very kind. The applicant said that her two sons also joined the church several months later. They attended different services, which were particularly tailored for children. The children went to church gatherings on Monday, Saturday and Sunday. The applicant and her husband attended every Tuesday, Thursday and Sunday evening. The services were held from 7 pm until 9 pm. All the gatherings were held at the home of Person A. About 20 people attended. The applicant told the Tribunal that Sunday was God's day. Although the applicant and her husband often went to the gatherings together, sometimes they would take it in turns to attend the gathering so that the store could be staffed. If they both went together, the children would stay in the store. As they were too young to handle money, they told any customers to come back soon. The applicant told the Tribunal that she attended the gathering an hour earlier before each service began so that she could help Person A set up tables and chairs. The applicant told the Tribunal that being with others in the gathering gave her great relief from the pressure that she was feeling. She said that people read out passages from the Bible, and that they also recited poems. She would listen to the readings and help turn the pages of the Bible. Although the gatherings were held in secret, the applicant told the Tribunal that she did not turn her mind to accepting that the gatherings were illegal initially. She felt that she belonged to something special and that Jesus Christ was in my heart. The applicant said that she and her husband were baptised by Person A on a particular date.

9 The applicant described the events of Person A s arrest and imprisonment. She said that she had been present when Person A was arrested. She said that she was very upset as Person A was a good friend. That was the last time that she had seen Person A. She said that she was interrogated by the Public Security Bureau (PSB) officers on five occasions over the next three months. She was taken to the police station. Even though she was scared she refused to say that Person A had been anti-government in her religious activities. She told the police that her friend was a good person. The applicant said that things went very bad after she agreed to have the gatherings in the store room of the business. The applicant said that she had met Person B at some of the first gatherings she had attended at the home of Person A. She said that she trusted her. Her husband had agreed that they should use their store room for the gatherings. They had thought that it would be safe. They could close the doors. She had missed not having the gatherings, and they wanted to start a new church. They held them at the same time as Person A had held the earlier gatherings. The applicant said that she had been extremely concerned about reports of Person A s bad health in prison. She said that although she thoroughly supported the letters being sent to the authorities, she played a limited role because she cannot read or write. The applicant said that the PSB came to the store on several occasions before she left China asking about the letters. She had felt scared. After her departure, the PSB came around to the grocery store on a particular date. Someone, the applicant thinks Person B, told the PSB about the gatherings which she and her husband had held there. The PSB took out all the produce from the store and then closed and sealed it. Her husband and oldest son had escaped and went into hiding. They are not together now and they are hiding in separate places. The applicant has relied on one of her brothers to track down her husband and son so that she could speak to them. [Information relating to the applicant s religious activities in Australia deleted in accordance with s431 of the Migration Act]. The Tribunal asked the applicant about her faith, Jesus Christ, baptism, and the local church. It asked her about her beliefs and how she incorporated her faith into her daily life. The Tribunal considered that her responses showed that she had an adequate knowledge and understanding of these topics, and that she could convincingly explain the impact of her beliefs on her daily life. Independent information The 2006 US Department of State Report on Human Rights in China states: The authorities continued a general crackdown on groups considered to be cults. These cults included not only Falun Gong and various traditional Chinese meditation and exercise groups (known collectively as qigong groups), but also religious groups that authorities accused of preaching beliefs outside the bounds of officially approved doctrine. Groups that the government labeled cults included Eastern Lightning, the Servants of Three Classes, the Shouters, the South China Church... Authorities accused some in these groups of lacking proper theological training, preaching the imminent coming of the apocalypse or holy war, or exploiting. (US Department of State 2006, Country Reports on Human Rights Practices 2005-China, March

10 Section 2 Respect for civil liberties (c) Freedom of religion - Accessed 13 March 2007). The US Department of State Report on Religious Freedom for 2006 states: The Government continued its repression of groups that it categorized as "cults" in general and of small Christian-based groups The Government has banned all groups that it has determined to be "cults," including the "Shouters" (founded in the United States in 1962) In January 2005, the Government organized a national meeting on religion. The meeting addressed similar themes to a series of conferences on religion in January 2004 that advised officials to guard against Christian-influenced "cults" and avoid "foreign infiltration under cover of religion." In early 2005, five Government training sessions were held across the country for some 3,000 religious affairs officials to educate them about the new religious affairs regulations Local officials have great discretion in determining whether "house churches" violate regulations. The term "house church" is used to describe both unregistered churches and gatherings in homes or businesses of groups of Christians to conduct small, private worship services. SARA [State Administration for Religious Affairs] officials confirmed during the year that unregistered churches are illegal, but prayer meetings and Bible study groups held among friends and family in homes are legal and need not register. In some parts of the country, unregistered house churches with hundreds of members meet openly with the full knowledge of local authorities, who characterize the meetings as informal gatherings to pray, sing, and study the Bible. In other areas, house church meetings of more than a handful of family members and friends are not permitted. House churches often encounter difficulties when their membership grows, when they arrange for the regular use of facilities for the specific purpose of conducting religious activities, or when they forge links with other unregistered groups or with co-religionists overseas. Urban house churches are generally limited to meetings of a few dozen members or less, while meetings of unregistered Protestants in small cities and rural areas may number in the hundreds Authorities continued to harass and detain "house" Christians, especially for attempting to meet in large groups, travel within and outside of China for such meetings, and otherwise hold peaceful religious assemblies (International Religious Freedom Report 2006, China (includes Tibet, Hong Kong, and Macau) - Accessed 13 March 2007). The local church is an evangelical Christian group. The organisation of the church is based on a New Testament pattern of worship and ministry, proposing a "one locale, one church" formula. Authorities first banned the Local Church in the early 1980s, pejoratively labeling the group the "Shouter Sect" (huhan pai) and have launched sporadic

11 crackdowns against the group throughout the reform era. The church has proved resilient in the face of official repression, however, continuing to attract new converts and expand its operations, swelling to an estimated 800,000 adherents in China today. (Kindopp, Jason 2004, The Local Church: a Transnational Protestant sect, in The Politics of Protestantism in Contemporary China: State Control, Civil Society, and Social Movement in a Single Party State, 16 May 2004 p 429.) A 1994 paper on the group by Human Rights Watch states: The Shouters, who refer to themselves simply as Christians were an outgrowth of an indigenous Chinese religious sect, variously known as the Local Church, the Assembly Church, Christian Assemblies or the Little Flock. The original group, particularly strong in the provinces of Zhejiang, Henan, Fujian, and Guangdong, was founded in 1922 and is associated with the religious philosophy of Ni Tuosheng ( ), better known as Watchman Nee. Imprisoned in 1952 during a government campaign aimed at the bourgeois private sector, Ni was accused of having stolen a [huge amount] of national medicine, information, and property. He was sentenced in 1956 to a fifteen-year term as head of a counterrevolutionary clique, and died shortly after his delayed release in Ni s disciple, Li Changshou, or Witness Li, who differed with Ni on tactics and doctrine, was primarily responsible for organizing the Shouter splinter movement. Its roots date back to the mid-1930s when Local Church congregants added external vocalizations, such as Oh, Oh Lord and Amen, to quiet prayer. The Shouter creed is evangelical, mystical, subjective, intuitive, apocalyptic, and individual. According to Shouter literature, believers reject any human thought that goes beyond what the Bible says because they consider it the completed divine revelation. Thus, Bible reading is central to religious practice, and it is the duty of every Shouter to go out and preach the gospel to relatives, neighbors, friends, and colleagues. The Shouters then nourish the converted by visiting their homes regularly and leading them in Bible reading, singing, and prayer. Members meet in small groups with neither appointed speakers or teachers. Anyone moved to preach can, although it is usually the already recognized leaders, or elders, who do so. There is no professional ministry, and each local group is autonomous. Congregants meet clandestinely in each others homes; hence they are categorized with other Protestants who resist association with the official Chinese Christian Church, as house church members. The Shouter creed has brought its members into open conflict with the Three-Self Patriotic Movement (TSPM), the official body responsible, under the Religious Affairs Bureau (RAB), for monitoring all Protestant affairs. The intrusion of Party doctrine and politics into religion in the official churches violates the sect s principle that the church is not and should not be a human institution. The Shouters interest lies strictly in Bible study; they eschew involvement with broad social, political or economic matters and resist participating in socialist campaigns. The evangelical nature of Shouter

12 practices violates the Religious Affairs Bureau s three-fix policy. Shouters also resist government restrictions on what legitimately can be preached; in particular they resent government curbs on sermons dealing with the second coming, a central tenet of Shouter faith. The Chinese government regards the belief in a second coming as inherently antithetical to development, in fact, to the very need for development. (Human Rights Watch Asia, 1994, China: Persecution of a Protestant Sect, June, Vol.6 No.6.) [Country information deleted in accordance with s431 of the Migration Act] FINDINGS AND REASONS The applicant brought a Chinese passport to the hearing which is issued in her own name. There is no reason for the Tribunal to consider that the passport is not a valid document. The Tribunal accepts that the applicant is a citizen of China. The applicant s claims are based on the Convention ground of religion. Essentially, the applicant claims that she and her husband and two sons were practising members of the local church, an unregistered and banned church in China. She claims to have regularly attended gatherings with her husband at the home of the former leader, Person A from the beginning of a particular year until Person A was arrested towards the end of that year. She also claims that she and her husband agreed to hold the local church gatherings at their grocery store from early the next year until the time she left China. She claims that after her departure, the PSB was informed about the gatherings that had been held in their store and that they have closed and sealed her grocery store, and are searching for her husband. She claims that her husband escaped and that he and her other son in China went into hiding. She fears arrest and mistreatment by the authorities if she were to return to China. The applicant has had no formal education. She says that she is completely illiterate. She says that she has been in ill-health and suffering mental pressure since the mid 1990s. She claims that belonging to the local church and attending the gatherings has given her relief and a sense of belonging. The applicant claims that although she is not able to read the Bible, she is comforted by the reading out of its passages and the repetition of phrases that accompany prayers in the gatherings. At times during the hearing the applicant appeared to be distracted and anxious. She closed her eyes and muttered on several occasions, particularly towards the end of the hearing. Often the Tribunal s questions had to be repeated several times before she would answer responsively. Her answers were at times vague and tangential, and it was only after several attempts to clarify that her meaning became apparent. It was a lengthy hearing, and the applicant had visibly tired by its conclusion. The Tribunal had some concerns regarding the applicant s credibility. There were some inconsistencies, and some revision of evidence given during the hearing. For example, in repeating her claims towards the end of the hearing she said that she had been arrested five times. When the Tribunal questioned this, she said that she had been interrogated not arrested on those occasions. However, overall, the detail of her evidence was largely consistent with that given to the Department, both in her original protection visa application, her interview with the delegate, and in her application for another type of visa.

13 After a careful consideration of all the explanations she provided to the Tribunal is persuaded of her claims. The Tribunal considered that when the applicant was asked about Jesus Christ, baptism, and the local church, her beliefs and how she incorporated her faith into her daily life, her responses showed that she had an adequate knowledge and understanding of these topics, and that she could convincingly explain the impact of her beliefs on her daily life. [Information relating to the applicant s religious activities in Australia deleted in accordance with s431 of the Migration Act]. The Tribunal accepts that she belonged to a local church group and that she and her husband participated in gatherings from a particular date. It accepts that she and her husband allowed their grocery store to be used for local church gatherings from a particular date until the applicant left China. The Tribunal accepts that the PSB was informed about these gatherings after her departure from China and that the grocery store has been closed and sealed. It also accepts that her husband and son are hiding and the PSB are searching for them. [Information relating to the applicant s religious activities in Australia deleted in accordance with s431 of the Migration Act]. The Tribunal is satisfied that she would continue to be involved with the local church and practise her faith if she were to return to China. The Tribunal accepts that if the applicant were to return to China now or in the reasonably foreseeable future because of her involvement with the local church she would come to the attention of the authorities. The independent information before the Tribunal confirms that unregistered religious groups, such as local church followers, experience varying degrees of official interference and harassment. Some members of unregistered religious groups, including local church groups, are subjected to restrictions, intimidation, harassment, and detention. A 2006 DFAT report states: Since 1982, China s government has tried to suppress the Shouter sect [ie local church], which it views as an evil cult (as it does Falun Gong). There are some reports on Chinese-language websites of police raids on Shouter meetings and of leaders and practitioners being arrested and punished. There are several reports of raids on Shouter meetings in Fuqing (as well as in other areas) in 2002 usually when the raid received some sort of international attention. (Department of Foreign Affairs and Trade 2006, DFAT Report 515: 4 August 2006.) The Tribunal accepts that if the applicant were to return to China now or in the reasonably foreseeable future there is a real chance that she would be detained and tortured for reasons her beliefs. The Tribunal considers that the persecution which the applicant fears clearly involves serious harm as required by s. 91R(1)(b) of the Migration Act in that it involves a threat to her life or liberty or significant physical harassment or ill-treatment.. The Tribunal considers that the applicant s religion (her membership of the local church) is the essential and significant reason for the persecution which she fears, as required by s. 91R(1)(a). The Tribunal further considers that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by s. 91R(1)(c), in that it is deliberate or intentional and involves her selective harassment for a Convention reason, namely her religion. The Tribunal finds that the applicant is outside her country of nationality, China. For reasons given above, the Tribunal finds that she has a well-founded fear of being persecuted for reasons of her religion if she returns to that country now or in the reasonably foreseeable

14 future. The Tribunal finds that the applicant is unwilling, owing to her fear of persecution, to avail herself of the protection of the Government of China. There is nothing before the Tribunal which could lead the Tribunal to conclude that the applicant has a legally enforceable right to enter and reside in any other country apart from China. The applicant is not therefore excluded from Australia s protection by subsection 36(3) of the Act. CONCLUSION The Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2) for a protection visa. DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention. I certify that this decision contains no information which might identify the applicant or any relative or dependant of the applicant or that is the subject of a direction pursuant to section 440 of the Migration Act PRRRNM

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