RRT Case No. N93/01843

DECISION AND REASONS FOR DECISION

RRT Reference: N93/01843

Tribunal: Dr L Fong, Member

Date: 7 July 1994

Place: Sydney

Decision: The Tribunal sets aside the decision of the primary decision-maker and substitutes the decision that the Applicant is a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967[.]

DECISION UNDER REVIEW

This is an application to the Tribunal for the review of a decision made by a delegate of the Minister for Immigration and Ethnic Affairs (the Department) to refuse an application for refugee status in Australia. The Applicant lodged the application for grant of refugee status on 23 August 1993. The application was refused by the Department on 10 November 1993 and on 17 November 1993 the Applicant sought a review of that decision by this Tribunal.

BACKGROUND

The Applicant is a thirty five year old male national of the People's Republic of China (PRC/China) who entered Australia in June 1992 as a student and, according to the Department's movements records, on entry was granted an entry permit valid to August 1993. At the expiration of that entry permit the Applicant remained in Australia without the grant of any further entry permit and therefore since on or about August 1992 has remained in Australia as an illegal entrant: see s.14 of the 1958 (Cth) (as amended) (the Act).

JURISDICTION AND STANDING

The application to the Tribunal is made pursuant to s.166BB of the Act which provides that the Tribunal must review an "RRT-reviewable decision". An "RRT-reviewable decision" is defined by s.166B(1) of the Act to include, subject to exceptions which are not relevant to the present case, a decision made before 1 September 1994 that a non-citizen is not a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention) as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol).

It is apparent from the background circumstances that the Applicant also satisfies the requirements that an applicant for the review of an "RRT-reviewable decision" must be the non-citizen who was refused an application by the primary decision-maker (s.166BA(2) of the Act) and must be physically present in the "migration zone" when the application for review is made: s.166BA(3) of the Act. The "migration zone" is defined by s.4 of the Act to include, inter alia, the area consisting of the Australian States and Territories. As the Applicant is physically present in the migration zone at the date of the application for review, the Applicant has the standing to seek review.

LEGISLATIVE FRAMEWORK

Section 22AA of the Act provides that "If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee." "Refugee" is defined by the Act to have "the same meaning as it has in Article 1 of the Refugees Convention or in that Article as amended by the Refugees Protocol": see s.4(1) of the Act. The same subsection of the Act defines "Refugees Convention" and "Refugees Protocol" as, respectively, "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".

Insofar as relevant to the present matter, Article 1 A (2) of the Convention as amended by the Protocol provides that a refugee is 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.

This definition of a refugee contains various elements.

Firstly, the definition includes only those persons who are outside their country of nationality or, where the applicant is a stateless person, country of former habitual residence.

Secondly, an applicant must have a "well-founded fear" of being persecuted. The term "well-founded fear" was the subject of comment in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989-1990) 169 CLR 379 (Chan's case). It was observed that the term contains both a subjective and an objective requirement. "Fear" concerns the applicant's state of mind, but this term is qualified by the adjectival expression "well-founded" which requires a sufficient foundation for that fear (at 396).

The Court in Chan's case held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality" (at 389: see also 398, 407 and 429). It was observed that the expression "'a real chance' ... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ..." (at 389) and though it "does not weigh the prospects of persecution ... it discounts what is remote or insubstantial" (at 407). Therefore, a real chance of persecution may exist notwithstanding that there is less than a 50 per cent chance of persecution occurring (at 398).

Whether an applicant has a fear of persecution and whether that fear is well-founded, must be determined upon the facts as they exist at the date when a determination is required (at 386-7). However, the circumstances in which an applicant has left his or her country of nationality remain relevant and these are ordinarily the starting point in ascertaining the applicant's present status (see Chan's case at 386-387; 399, 405-406).

Thirdly, an applicant must fear "persecution". The term "persecution" is not defined by the Convention, but not every form of harm will constitute persecution for Convention purposes. The Court in Chan's case spoke of "some serious punishment or penalty or some significant detriment or disadvantage" if the applicant returns to his or her country of nationality (at 388). Likewise, it stated that the "notion of persecution involves selective harassment" whether "directed against a person as an individual" or "because he or she is a member of a group which is the subject of systematic harassment", although the applicant need not be the victim of a series of acts since a single act of oppression may suffice (at 429-430). The harm threatened may be less than a loss of life or liberty and includes, in appropriate cases, measures "'in disregard' of human dignity" (at 430) or serious violations of core or fundamental human rights. Indeed Hathaway defines persecution "as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection": see Hathaway, The Law of Refugee Status (Butterworths Canada Ltd, 1991), pp.104-105.

Fourthly, the applicant must fear persecution or be at risk of serious harm for a Convention reason, viz. for reasons of "race, religion, nationality, membership of a particular social group or political opinion". If the harm suffered is related to some other reason, such as economic conditions, Convention protection is not available.

CLAIMS AND EVIDENCE

The Applicant provided evidence by a written primary application and oral testimony at an interview with an officer of the Department in October 1993, as recorded in the Department file. The Applicant also gave oral testimony at a hearing before the Tribunal in May 1994. The following is a summary of the Applicant's evidence.

The Applicant is an accountant and computer programmer from XXX. He worked as an assistant accountant at a textile manufacturing factory prior to his departure from China. He is educated to tertiary level. He attended university in XXX from 1984 to 1989 as an adult evening student and graduated with a bachelor degree in accounting. He is also a graduate in computer studies from a computer education college. He was employed by the textile factory in 1980 as an ordinary worker after a position was created at the factory by the retirement of his mother who had been employed as a cleaner. His parents and three siblings live in China.

The Applicant was asked by the Tribunal the reason for his fear of returning to China. He stated that he feared persecution for his Christian religious beliefs and political opinions.

He fears he will be targeted for religious persecution by the Chinese authorities because he wishes to practice his faith in a church, an underground church, not sanctioned by the state. He claims that he has been identified by the authorities as a member of an underground church when he promoted religious freedom by putting up posters in state sanctioned churches during the pro-democracy movement of 1989. He also states that he was identified in high school as having an interest in the Christian faith and claims to have been subjected to two years reform on a rural commune as the result of his religious views.

He also fears political persecution because his family is regarded by the Chinese authorities as reactionary capitalists. He explained that his grandparents and parents were pious Christians who were subject to repressive policies of the Chinese Communist Party (CCP) which vilified Christianity and did not permit the open expression of religious beliefs after 1949. His grandfather had been a socks manufacturer prior to the CCP coming to power in 1949. His grandfather's property, including his factory, was confiscated by the state authorities in the 1950's and his grandparents and parents were forced from their ownership position at the factory to become ordinary workers in the same factory. The Applicant states that he worked in the factory which had been previously owned by his grandparents from 1980 until his departure to Australia.

The Applicant states that he was employed in 1980 when a position became vacant upon the retirement of his mother. He claims that he was given the duties of an assistant accountant because he was efficient at accounting. He claims however that, because of his family background he was not given promotions and therefore could not access the benefits of promotion of higher wages and better accommodation. He claims that he studied for a higher degree as a private student and was not sponsored or assisted by his work unit.

The Applicant claims that in the Cultural Revolution his grandparents, parents, an uncle and an aunt were denounced as a "capitalist Christian family" and "anti-Party elements" and were subjected to public humiliations and beatings. The Applicant attributes his grandparents deaths in 1970 and 1971 to the cruel treatment suffered in the Cultural Revolution. The Applicant claims that in the Cultural Revolution his uncle was exiled to a remote rural area for 7 years because he denounced the CCP and his aunt suffered beatings as the result of which she became crippled. He states that his parents were punished by being required to be cleaners at the factory as this was demeaning work. The Applicant claims that Red Guards came to his parent's home and burned bibles, religious books and confiscated valuables.

The Applicant claims that he witnessed the cruel treatment of his family in the Cultural Revolution and this had an enduring effect on him. He claims that he also suffered because of his 'bad political' family background by being humiliated at school and beaten by other children. He states that he became a political target for criticism whenever there were political examination sessions and he was criticised for his background. He was forced to denounce his family and shout "Take a firm break with my counter-revolutionary family!" to avoid being beaten by other students. He claims he was subjected to greater political scrutiny during the various political movements announced by the CCP while he was at school because of his family background.

In 1976 he claims while he was attending middle school (high school) the school authorities searched his school bag and discovered a religious leaflet. The school authorities confiscated the leaflet and he was held in a room for 24 hours. He was not permitted food or drink or to sleep. He claims that he was forced to write a self-criticism and this was posted on the school gate. He claims that after he graduated from middle school he was exiled to a commune in the rural area of XXX county for "reform" because of his "crime" of having a religious leaflet and having a bad family background. He states that he suffered physical and mental torture during this period of exile. The Applicant submitted a copy of his residence registration confirming that he had been transferred to the commune in October 1977.

He claims that he was exiled to the country for 2 years. After that period, he returned to XXX where he was unable to get a job. He stated that employers would not accept him because he was regarded as 'a bad element'. He stated that he felt despondent and discontent with the CCP autocratic government during this period of unemployment which lasted about 12 months. He stated that his uncle who had been imprisoned for 7 years by the CCP during the Cultural Revolution for his anti-government crime of denouncing the CCP was released in about 1980 and his uncle deeply influenced the Applicant in his belief in Christianity.

The Applicant claims that he assisted his uncle in 1982 to set up an underground Christian church called the "XXX Church" which gathered members from the unemployed youth in XXX. His uncle explained to the followers Christian stories in the Bible and gave them spiritual strength to cope with the problems they were having as unemployed youth. The Applicant claimed that the membership of this underground church grew from about 5 or 6 members in 1982 to over 50 members and the church was divided into 4 branches. The Applicant claimed he was the leader of a branch which had 7 members.

The Applicant explained that after the Cultural Revolution ended the CCP government allowed the establishment of government approved Christian churches which his family did not attend. He states that his grandparents, aunt and uncle, and his parents were Catholic. His parents did not attend the state sanctioned churches because they feared that if they attended they would suffer discrimination. The Applicant states that work place security officers would ask workers about their religious views and if a person was Christian they would be subject to political examination. His parents told him that the official church was not a sincere church but a political organisation supporting the CCP. The Applicant was baptised by his parents when he was 5 years old. The Applicant was warned by his parents not to be open about Christian beliefs because they believed that if the authorities did know a person was Christian, the person would be treated as a political dissident and suffer discrimination at work and by neighbourhood committees.

The Applicant stated that in 1989 the pro-democracy movement created an atmosphere of liberal thought which was encouraging to the Christian ideas of the underground church led by his uncle. In April 1989 the Applicant claims that he and members of his branch of the underground church attended pro-democracy demonstrations and handed out religious leaflets which they had copied from a religious booklet given to them by his uncle. The leaflet contained messages demanding 'real freedom of religious belief'.

He claims that on 28 May, 1989 he and two members of the church went to the four main Christian (Catholic) churches in XXX and put up about 6 'A4' size posters on the outside wall of the churches which demanded freedom of religion. He explained that when they put up the posters they aimed to encourage community demand for religious reform in China as part of the pro-democracy demands for political reform. They did not think of their act as illegal and did not anticipate that they would be punished for it. He states that he and his two friends also went to a big political demonstration in the People's Square where they handed out religious pamphlets.

He stated that after the 4 June, 1989 massacre at Tiananmen Square there was a general campaign to round up political leaders of the pro-democracy movement. He claims that on 18 September, 1989 he was visited by local public security bureau officers (PSB) who took him to the local police station where he was held for 12 days without charge. He states that the PSB officers also detained one of the two colleagues who had put up posters at the churches with him in May. The third colleague fled to another province to avoid detention. The Applicant claims that he was accused by the officers of distributing religious pamphlets signed the "ZZZ" church and was asked about this organisation and who were its members. He states that he was questioned by 3 police, deprived of sleep continuously for days, and was subject to beatings and torture with an electric stick. He claims that he denied any involvement in that organisation and denied distributing the leaflets.

He claims that he was released with the assistance of a friend who intervened on his behalf. His friend was able to provide the authorities with a letter from the Applicant's work unit stating that the Applicant was required by the work unit to do accounting duties that could not be done by any one else. The Applicant states that he was released on the condition that he not have any involvement in underground church activities. He guaranteed that he would not and was required to report once a week for 6 months to the neighbourhood committee. The Applicant stated that his colleague was also released after his colleague's father, who was very influential, approached the PSB. His colleague was released after 7 days detention.

After his release from detention he claims that he stopped his religious practice and some of his friends also stopped their religious practice. He claims that he was determined to leave China because he resented the lack of religious freedom in China. He applied to study in Australia. The Applicant claims that he was assisted by the CCP committee member at his work unit to come to Australia because the Applicant paid a bribe to the member.

The Applicant made a legal departure from China for Australia in June 1992.

Since his arrival in Australia he claims to have attended church services twice weekly at the XXX Church at XXX on Sundays and mid-week at XXX. He gave the name of the leader of the church he attends in Australia. He stated that he assists the congregation by putting up chairs for the services but does not have an official or organisational role in the church. He describes his commitment to the Christian faith as a fundamental belief in Christ. Although his parents and grandparents may have been Roman Catholic he does not consider himself to have a deep understanding of the Roman Catholic Church.

The Applicant claims that he faces persecution if he returns to China because he intends to continue his commitment to Christianity and worship in the underground church which is prohibited by the Chinese authorities. He states that he is already known to the authorities for his religious affiliation to the underground church and he believes that he is likely to be a target for persecution because the Chinese authorities have become increasingly intolerant of non-government sanctioned churches.

The Applicant expressed fear that the Chinese authorities may have discovered a hand gun which he hid in his home in China in June 1989. He states that one of his friends in the underground church came to his home on about 10 June 1989 and asked him to hide a handgun which a pro-democracy student leader had taken with him when the student fled Beijing after the 4 June incident at Tiananmen Square. The Applicant was told that the gun needed to be hidden as evidence of the massacre of students in Beijing by the Chinese authorities. He was told that the student leader fled to south China to escape being caught by the police. The Applicant stated that the police may be aware of the gun because the Applicant's family informed him that the police visited the family home making enquiries about the Applicant and they searched the home four days after the Applicant departed for Australia. The Applicant's family warned him to be very cautious about his activities in Australia.

REASON FOR DECISION

I accept that the Applicant is a national of the People's Republic of China who is outside his country of nationality who is unwilling to return to his country of nationality because he has fear of being persecuted for the Convention reasons of his religion and his imputed political opinions.

The Tribunal notes that the primary decision-maker in assessing the Applicant to be not a refugee considered the Applicant's commitment to Christianity to be 'unconvincing'. The primary decision-maker at paragraph 5.1.1.1. made a finding that :

I accept as plausible that the applicant may have participated in the activities of the underground church in XXX and may have joined a church in Australia. However the inability of the applicant at interview to describe the basic tenets of the Christian faith together with his inability to supply details as to denomination (only that it was Christian) and address of the church in Sydney leaves me unconvinced as to the degree of his religious belief or commitment.

The Applicant submitted in a written submission to the Tribunal that he could not provide the address of one of the venues where he attends church services regularly to the Departmental officer at interview because he did not have his notebook where he had written the address with him at the interview. I note that the Applicant was able to describe how he travelled to the services and where the venue was in relation to the public transport used by the Applicant. The Applicant has since the interview provided the address. The Tribunal made independent inquiries which confirm the Applicant's evidence as to the name of the church attended by the Applicant, the leader of the church and the venues of the services held by this church mission. The Tribunal notes that the church attended by the Applicant is a Pentecostal Church. The Tribunal finds that the Applicant's evidence of his attendance at church services in Australia and his commitment to Christianity to be credible.

At the Tribunal hearing, the Applicant gave credible evidence of his family's religious background, his baptism at 5 years old and his lifelong interest in the teachings of Christianity. The Tribunal accepts that the Applicant was identified at high school for having religious literature in his possession and that he was sent to 2 years rural experience from 1977 to 1979 because he was regarded as religious and from a religious and capitalist background.

The Applicant has also given credible evidence of his involvement in the underground Catholic church in China from 1979 to 1989. I accept that he was a leader in the operations of this church led by his uncle in gathering followers to the church from disillusioned and unemployed youth in XXX. The Tribunal has confirmed from the Hong Kong bureau director of News Network International, an international news agency with a special focus on Christian liberty issues worldwide, that the underground church named by the Applicant is known to News Network as 'a house movement church in the XXX Municipality.' The News Network director states in his response to a request for information from the Tribunal (dated 20 April 1994) that:

There are a number of unregistered Christian house churches in XXX whose members are either unemployed, factory workers or students. Many of these churches number up to 30 members. Some of the members are unemployed by choice, leaving their jobs to be involved full time in church and evangelical work....

This information is consistent with the Applicant's description of the XXX underground church organisation led by his uncle which he claims to have belonged from 1982 to 1989.

I note that the primary decision-maker found the Applicant's description of the basic tenets of the Christian faith to be 'unconvincing' of a strong commitment to the Christian faith. The Applicant admitted to the Tribunal that his knowledge of doctrinal church teachings is indeed rudimentary. He stated that his knowledge of Christian teachings came from his uncle who he described as a 'lay preacher' who used religious materials he had been given prior to 1949 as a member of the Catholic Church. The Applicant stated that his uncle used simple religious stories to explain the Christian philosophy which had popular appeal to unemployed youth. The teachings were focused on the praise of the Lord and teachings about morals and ethics rather than details of scriptures and sacraments. The Applicant's Christian beliefs were akin to those of 'fundamentalist' and evangelical Christians rather than that of the doctrine of the Roman Catholic Church. I find his explanation for his lack of formal knowledge of religious teachings to be plausible. I consider the Applicant's understanding of religion as consistent with evangelist and Pentecostal christianity.

I note the article, 'Fighting the good fight', in the Far East Economic Review 5 July 1990 describes the underground church activities as follows:

Underground services range from small home ceremonies of several people to huge gatherings of hundreds and even thousands of believers. In the central heartland of China and in particular the large cities, the public security bureaus are quick to crack down on any signs of non-official religious activities.

Compared to the sterility of the Patriotic Church's Latin mass, the underground services are considerably more inspirational and friendly. Those who have attended such gatherings say they share many of the evangelical traits found in the Baptist services. There is substantial interaction between the priest and the congregation and sermons are given in the vernacular.

While underground services have plenty of zest, they are sometimes shaky on the fundamentals. The order of the service often differs from the accepted norm, and the old and new testaments often are used interchangeably.......

Some of the clergy appointed since the 1950's have only a rudimentary knowledge of their vocation.

This description of underground church services in China is consistent with the Applicant's evidence that the teachings of his uncle in the underground church in XXX were informal and vernacular in style.

I accept that the Applicant has given credible evidence of commitment to the worship of Christ and that he has demonstrated that commitment through his weekly attendance of 'XXX' church services in Australia and his involvement in the underground church in China. I accept as credible the Applicant's expressed desire to attend the underground church if he is required to return to China.

The Tribunal considers that the Applicant who is known to the Chinese authorities as being involved in underground church activities in 1989 has a real chance of persecution for his religious beliefs if he returns to China. The Tribunal notes the advice from the News Network director, supra, who states in relation to the risk to members of the underground/house church movement in XXX that:

The government authorities are very sensitive about this - worried that these people may "stir up the masses" and cause "instability" through their unregulated and technically "illegal" religious activities.

The government is also very sensitive about groups of students, factory workers and unemployed individuals coming together in any sort of meeting that is not government sanctioned - given the pro-democracy demonstrations in 1989.

Currently, things remain quite tense for many house church members in XXX. One of the city's most senior unregistered Christian leaders, Xie Moshan (aged in his early 70's), is currently under very tight police surveillance, after spending four months in detention in 1992 for his evangelical activities. One of the city's other prominent house church leaders, Li Tian En (aged in his late 60's), a renowned itinerant evangelist, is currently in hiding - fearing arrest ....

So it would be correct in saying some "underground" Protestant Christians in XXX do face pressure and harassment. Much, however, would depend on their position within the church, whether they already have a police record for "illegal" religious activities, how active they are and what they are involved in (eg. unsanctioned Christian meetings on university campuses often attract the wrath from local authorities) ...

In the Applicant's case he has a record of "illegal" religious activities in 1989 and he has served rural reform "exile" in 1977-9 for his religious activity at high school. He is therefore identified by the state authorities with the non-state sanctioned underground/house church movement which makes him susceptible to religious persecution in China where Christianity is tolerated if the activity is state sanctioned.

The United States Department of State Country Reports on Human Rights Practices 1992 (February, 1992) at p.546 states:

Repression of religion in China tightened in early 1991 with the Communist Party Central Committee's publication of Document Number 6, which urged imposing tighter control over religious practice. The situation became more complex in 1992, with the Government placing renewed emphasis on reform that would offer the government-sanctioned religious leaders an opportunity to speak out against abuses by 'leftist' officials. Religious freedom in China nevertheless remained subject to restrictions of varying severity.

While the Constitution affirms toleration of religious beliefs, the Government restricts religious practice outside officially recognized and government controlled religious organizations. Religious proselytizing is officially restricted to government-registered and sanctioned places of worship.

Unauthorised proselytizing is proscribed and sometimes punished, although some discreet prosletyzing and distributing of religious texts outside official channels is tolerated. Local authorities have confiscated private property under the guise of searching for illegal religious materials.

The Applicant has shown his commitment to Christian religious worship which is not satisfied by the presence of officially sanctioned churches and he rejects the limits imposed on his worship by the political interests of the state. Prior to his arrival in Australia the Applicant has suffered serious harm amounting to persecution for his religious activities in being detained for 12 days in September 1989 during which time he was interrogated about his religious activities of putting up religious posters and distributing religious pamphlets. I also consider his 2 year "exile" for reform in 1977-9 for "aberrant" religious behaviour at school to be serious harm amounting to persecution. I refer to my previous discussion of the meaning of "persecution" within the terms of the Refugee Convention (see page 4-5) and find that the Applicant has been subjected to serious persecution for his religious views when he lived in China.

Whilst I acknowledge that the Applicant was given permission to travel to Australia for study purposes and he suffered no significant adverse treatment after his release form custody in September 1989 to his departure from China despite his 'record' of illegal religious activities, I do not believe that these privileges indicate that the Applicant is immune from future persecution. The Applicant gave evidence that subsequent to his release from detention in September 1989 he did not continue his participation in the underground church because he was obliged to give an undertaking to desist from illegal church activities as a condition of his release and he feared further punishment. However since arriving in Australia he has renewed his commitment to his faith through his involvement in the Pentecostal church. He has expressed to the Tribunal his desire to continue his worship of his faith in the underground church if he returns to China.

The commitment the Applicant has shown to his religion since his arrival in Australia and his past history of active involvement in the underground church in China persuades me that the Applicant does have an intention to remain an active participant in non-state sanctioned religious activity in China.

The Applicant claims that his right to the peaceful pursuance of his religion in a church of his choice which is not 'politically aligned' to the CCP government is not permitted by the Chinese government and he is susceptible to persecution for his planned involvement in the illicit activities of the underground church. Reports from independent sources indicate that the CCP policies of repressing religion has been invoked in a fashion which can be described arbitrary, and the enforcement of the policies appears to be at the discretion of local authorities. For instance, in XXX in November 1991, an Australian businessman was expelled from XXX for holding bible meetings. He was taken into custody and held for twenty hours before being deported to Hong Kong the next day. He reported that five Chinese citizens had been arrested and he had been asked to reveal the names of others in XXX. (see The Reuter Library report November 7,1991,Thursday, BC cycle)

Amnesty International's (March 1994) report "China Protestants and Catholics detained since 1993" states, at page 1, that:

Over 30 Protestant preachers and Catholic leaders in China are reported to have been detained or placed under strict restrictions during the past few months for their peaceful religious activities. Scores of other Christians were detained for short periods during the past year in several central provinces and usually released after being made to pay heavy fines. Those detained or restricted belong to religious groups who conduct their religious activities outside the officially recognized Protestant and Catholic churches in China. The cases cited in this document are those of people reported to have been recently detained or sentenced without trial to terms of administrative detention. News of the most recent arrests followed reports that the authorities have adopted new regulations on religion which set limits to freedom of religion in China.

The Far East Economic Review of 15 February 1990 states:

The Chinese authorities, concerned about the growing popularity of the country's "underground" Vatican-orientated Roman Catholic Church, are cracking down on its members, with the church leaders reportedly arrested. In addition, Peking is becoming increasingly suspicious of sections within the officially sanctioned Catholic Patriotic Association (CPA) it believes is seeking closer ties with the Vatican. ... More broadly, the clampdown - which also includes other religious groups - is seen by observers as predating the crushing of the pro-democracy movement, and reflects more atavistic turmoil within the party and state.

At least nine bishops and 23 priests and laymen of the underground church were arrested in December 1989 and January 1990, the Hong Kong-based Union of Catholic Asian News reported, quoting church sources in China. Most of the detainees were from Hebei and neighbouring Shaanxi provinces of northern China....

Official estimates put the underground church hierarchy at some 25 bishops and more than 200 priests out of the country's 3.5 million-strong Catholic community.

Some church sources say the arrests are linked to a secret national conference convened by underground bishops in late 1989. Since being outlawed in the 1950's, the various underground congregations have existed in isolation, with church leaders unaware of the activities of counterparts in other parts of China. ...

Other observers see the arrests stemming from the implementation of the Number Three policy directive, issued by Peking in February 1989. Entitled "Strengthening the Work of the Catholic Church in the Present Situation," the directive claimed the Vatican "had covertly appointed bishops, promoted and supported the underground forces [and seriously undermined social stability," The directive called for underground priests to be "exposed and severely punished," while allowing those who acknowledged the party's leadership to practise within the CPA.

Amnesty International Report dated April 1990 "People's Republic of China Catholics Imprisoned in China: Recent Arrests and long-term prisoners" states:

Over 30 Roman Catholic bishops, priests and lay leaders are reported to have been arrested in several provinces of north China in the past few months, in an apparent crackdown on Catholics of the "underground" church who remain loyal to the Vatican and carry out religious activities independently of the government-recognised church.....Unofficial Catholic sources have reported that the recent arrests may have resulted from the implementation of the policy directives issued in a "Document No. 3" by the central authorities in Beijing in February 1989. The document, entitled "Strengthening Catholic Church Work in the Present Situation", criticised the Vatican for wishing to control the Chinese Catholic Church and for "secretly" appointing bishops and "instigating and supporting underground forces in a vain attempt to split the Chinese Catholic Church. The document referred to the "underground bishops and priests", stating that a differentiation should be made in dealing with those "willing to accept the Party and government's leadership" and those who, "still stubbornly persist in their inimical stance, engaged in confrontational activities ....should be "severely dealt with in accordance with the law".

The repressive approach of the CCP government in China to unauthorised religious activities continues to be a concern. The Age newspaper reported on 7 February 1994 in an article "China acts to tighten controls on religion" by Tony Walker states:

China has signalled that it plans to tighten controls on foreign missionary activity in China and is seeking to strengthen measures against unauthorised religious practices.

Publication at the weekend of two new decrees aimed at improving religious management is certain to fuel criticism of China's human rights behavior as debate intensifies on renewal of its Most Favored Nation trading status with the United States.

The regulations, authorised by the Premier, Mr Li Peng, coincide with the explosion of religious activity in China in line with social changes sweeping the country since economic reforms were launched in the 1970's.

The pattern of repression of unauthorised religion in China continues to target lay members of the underground church as well as leading clergy and priests.

The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights include specific provisions on the right to freedom of religion. These provisions have been elaborated upon by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief, proclaimed by the General Assembly of the United Nations on 25 November 1981.

In determining a claim to refugee status on religious grounds there must be established a link between the threat of persecution and the applicant's right to hold specific religious beliefs and to practice those beliefs. Religion as defined in international law comprises both the right to hold specific beliefs and the right to live in accordance with those beliefs, that is, an individual has the right to worship, to participate in other religious acts, to express views and to order his personal behaviour in accordance with a chosen belief. (Hathaway, J., op cit at 146). Professor Hathaway comments, at 147, that "The peaceful expression of one's beliefs, including engaging in worship, playing an active role in religious affairs, and prosletyzing may give rise to a genuine need for protection."

The Applicant has given credible evidence of having assisted a lay preacher, his uncle, in his underground church duties by helping him with services, organising meetings, and publishing church propaganda from 1979 to 1989. He has demonstrated a continuing commitment to the Christian faith by attending services in Australia. His history of involvement in the underground church in China, his association with his uncle who has been convicted of illegal religious activities, his ongoing commitment to the church and prosletyzing for the church are factors which put him at risk of adverse treatment as a result of the CCP religious policies.

Future Conduct

In respect of whether future behaviour may found a claim to refugee status, the Tribunal notes that it is accepted in law that future behaviour can found a present claim for refugee status.

In Mok Gek Bouy-v-The Minister for Immigration, Local Government and Ethnic Affairs, unreported, Federal Court of Australia, VG No. 453 of 1992, 12 November 1993, Keely J. observed as follows as to the impact of future events may have on the issue of refugee status conduct

The delegate considered that a real chance of persecution of the applicant two months after her return to Cambodia "wasn't relevant". In my opinion, the question of whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision. On the one hand the delegate was not required to look at the possibility of something occurring in 50 years time...On the other hand a delegate errs in law, in my opinion, if he confines his attention to whether there is a real chance of persecution on the day after an applicant's return. (at p.89)

Further, two cases from the U.K. Court of Appeal, are useful on this issue, Viraj Jerome Mendis -v-Immigration Appeal Tribunal and Secretary of State for the Home Department, [1989] Imm A R 6 and Gulzar Ahmed,Manzar Ahmed,Mohamed Haeem Khan-v-Secretary of State for the Home Department, [1990] Imm A R 61.

In Viraj Jerome Mendis -v-Immigration Appeal Tribunal and Secretary of State for the Home Department, the Applicant entered U.K. as a student and later applied for refugee status. His ground of application was that he was well-known to Sri Lankan authorities because of activities in U.K. and on the matter of his behaviour if he returned to Sri Lanka, the court considered, obiter dicta, the issue of whether he was a refugee on the ground that he would be bound to speak out and would be persecuted.

Staughton L.J. (U.K.Court of Appeal) stated at pages 22 - 23,

I would add only a brief word on the point about fear of persecution as a result of future conduct. In my judgement it may not be right to say that this can never be relevant to a claim for refugee status. If a person has such strong convictions, whether on religious or other grounds, that he will inevitably speak out against a regime in his country of origin, and will inevitably suffer persecution in consequence, it may be that he should properly be treated as a refugee. In such a case it could be questioned whether his future conduct would be voluntary in any real sense.'

In Gulzar Ahmed,Manzar Ahmed,Mohamed Haeem Khan-v-Secretary of State for the Home Department, [1990] Imm A R 61, the Applicants, who were Ahmedis, an evangelical sect, fled from Pakistan to U.K. and sought asylum on the ground of religious persecution. If they proselytised they would be persecuted, but not otherwise. This was not put to the original decision-maker but rather was raised in the Court of Appeal. Farquarson L.J. noted, at page 66, that,

For my part, I would agree that a person cannot obtain refugee status on the basis that he has a fear of persecution if he has a fear of persecution if he returns to his national country and proceeds to break its laws. At the same time I do not consider that there are no circumstances in which a person could claim to be a refugee if he proposes to exercise what are widely regarded as fundamental human rights in the knowledge that persecution will result.

As well, as to future expression of political opinion, Hathaway, supra, at page 149-151 comments that

Because the refugee determination requires a forward-looking assessment of risk, the issue to be addressed is whether there is reason to believe that the claimant's decision to exercise her right to form an opinion "on any matter in which the machinery of state, government, and policy may be engaged" would place her in jeopardy upon return to her home state...

Since political expression is a core human right, the claimant must enjoy a reasonable expectation of tolerance of peacefully articulated views. It is therefore inappropriate simply to discount the risk of harm on the ground that the claimant could avoid detection by keeping silent....

In addition to actual or possible future government knowledge of the claimant's political opinion, there must be reason to believe that dissent will not be tolerated.

The Applicant has demonstrated strong religious convictions and commitment to the unauthorised 'underground' church. Although the Applicant desisted from his underground church activities after he suffered persecution in September 1989 for his religious activities it is not acceptable that the Applicant should be required to desist from his choice of worship as determined by the state. Article 18 of the International Covenant on Civil and Political Rights provides a paragraph 1 that:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, practice and teaching.

Paragraph 2 states:

No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

Paragraph 3 states:

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

In China the laws limiting religious practices to government sanctioned churches are primarily repressive laws not of necessity for reasons of public safety, order, health, or morals or the fundamental rights and freedom of others but serve the political interests of the CCP. The Tribunal finds that the Applicant is precluded from practising his religion openly and is forced to conceal his activity in the 'underground' church. The Tribunal finds that the Applicant is precluded by threatened or actual punishment if he practises his religion and finds that the Applicant's fear of persecution on religious grounds is well-founded.

The Tribunal finds that the Applicant faces a real chance of persecution if he attempts to practice his religious beliefs. He is denied the right to follow his religious beliefs and practices in China other than through the illicit underground church and that, as a result of this illicit activity, he faces arrest, detention, and/or physical harm.

For the above reasons, I find that the applicant is a refugee within the terms of the Convention and its Protocol. The decision of the delegate is set aside.

DECISION

The Tribunal sets aside the decision of the primary decision-maker and substitutes the decision that the Applicant is a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

¹In accordance with s[.]166EA of the Migration Act 1958 (Cth), (as amended), the published version of this decision does not contain any statement which may identify the Applicant or any relative or other dependant of the Applicant.