1403769 (Refugee)

[2015] AATA 3563

1403769 (Refugee) [2015] AATA 3563 (22 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1403769

COUNTRY OF REFERENCE:                  China

MEMBER:Sydelle Muling

DATE:22 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 October 2015 at 9:55am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa [in] April 2013 and the delegate refused to grant the visa [in] January 2014.

3. The applicant first appeared before the Tribunal, differently constituted, on 19 June 2014. He attended a further hearing on 11 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

5. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) 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.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in 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.

10. 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.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - 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.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ 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 being persecuted for a Convention stipulated reason. 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.

13. 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. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of 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.

    Complementary protection criterion

15. 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 a protection 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 the applicant 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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

19. The applicant claims to be a citizen of China who was born in Fuqing, in Fujian Province, [China]. According to his protection visa application, he resided in Haikou Town, Fuqing City in Fujian Province from [1989] to July 2007. He completed [his] education and has a Diploma in Hospitality Management. He is fluent in English and Chinese. He described his ethnicity as Han and his religion as Christian. The applicant arrived in Australia on [in] July 2007 on a subclass 572 visa. He has returned to China twice since arriving in Australia. The applicant’s mother and father are residing in China.

20. The applicant presented his claims in his protection visa application [in] April 2013 [Department File number], a Departmental interview he attended [in] November 2013 [Department File number] and at his Tribunal hearings on 19 June 2014 and 11 September 2015. The following is the statutory declaration made by the applicant attached to his protection visa application:

    I am an overseas student from the Fujian countryside. My family is a family of Christians who joined the family church. Our church belongs to the Local Church. I was baptised under my parents' direction when I was 10 years old. My parents have been serving the church for many years. They have experienced much happiness and sufferings in those years. In 2000, my father was warned by the government twice because he organised the family church gatherings. He was put into labour reformation for six months. However, my father did not give up his belief because of it. In the summer holiday of my second year of junior high school, I was detained by the local police for one day because of my involvement in the out-of-town missionary activities with the church prayer group. Then the police informed my school to bail me out. I was criticised and warned by the school. From then on, I dared not to go to the church activities any more.

    In 2007, I came to Australia to study but I could not find the Local Church here. Even though I have looked for it in other churches, the search ended with no result. I could not adapt those churches so I did not continue. Then I heard that I could join the church gathering in China through web camera, so I have kept my spiritual communication with the Local Church in such way. I have also witnessed the baptism of my 2 hometown-mates, and I prayed for them.

    I have seen Brother Changshou Li's preaching video online in Australia, which is unavailable in China. My church in China longed for gospels, so I used the chance of going back to visit my family in 2009 to bring back some CDs with preaching material, which was very popular with the folks. In 2010, I brought back some new preaching materials when I was visiting my family. I also joined their gatherings. Every time when we had the gathering, we had to make sure we were in secret to avoid being reported.

    My mother has not always been well, but her spirit and body has improved a lot through her church life. My mother runs a small business and she donates part of the income to serve the Lord, and as the fund for missionaries. But she has been arrested twice when she was preaching out of town, each time fined and detained. In 2011, my parents were detained for 3 months because of missionary acts. Upon release, my parents tried to appeal to the government but yielded no result, so they united several villagers with the family church to launch a mass appeal. The incident attracted much attention and the police arrested many people. So I told my parents an overseas web address (Boxun site) on which they could reveal the truth about persecution. To my surprise, the police once came to our house to search the family computer. My parents' contact with the outside world was found and I was exposed. To control my parents, the police restricted my parents to our house. All the family calls and computer are monitored. I could only hear from them through verbal messages.

    I worry about my parents but I dare not to contact my family. On New Year Eve of 2012, my parents escaped our hometown while the guards watching them went home for New Year. They then had a relative brought a verbal message to me saying they had skipped town and I should never go back, nor should I contact them.

    I have found the Local Church in Australia recently and joined their gatherings. I now find myself have a better understanding to God and more compassionate to my religion especially after I jointed the Local Church in Australia so I reserved baptism again. I see the church as my home and I hope to stay with my current church and evangelize forever. Because of family financial difficulties, I have lost the financial ability to continue my study since 2010. I wish to finish my study and become a useful member of the society. But I could not go back as there is no place for me there. However, it is very difficult for me to live in Australia without a legal identity. My family is a victim of the Local Church so I dare not to go back. I hope that Australian government could spare me a path of living so that I could go back to school and hold on to my belief.

21. The delegate of the Minister for Immigration and Citizenship refused the applicant a protection visa [in] January 2014 and he applied to this Tribunal for review of that decision on 27 February 2014. Attached to the review application was a copy of the delegate’s decision.

22. The primary issue in this review is whether there is a real chance that, if the applicant returns to China, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

24. The Tribunal accepts the applicant was born in Fujian and that he lived in [Village 1] Haikou Town, in Fuqing City. The applicant claimed that he will face persecution on his return to China as a Local Church adherent. However, the Tribunal does not accept that the applicant is a member of the Local Church or family gathering, as he described in the hearing with the previous Member.

25. The Tribunal notes according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant’s knowledge of Christianity was described as very limited and that his account of his religious activities was notably brief, lacking in circumstantial detail and confused, shifting and implausible. While the applicant’s evidence to the Tribunal regarding the Local Church and his activities was more detailed than what it appeared to be at the time of his interview with the Department, the Tribunal observes that the applicant has had considerable time since then to acquire more knowledge of the Local Church and it’s practices, through his attendance in Australia. 

26. Although the applicant was able, in general terms, to discuss the distinguishing features of the Local Church, as compared to other Christian churches, the significance of baptism and aspects of Local Church gatherings and services, the Tribunal found aspects of the applicant’s evidence regarding the Local Church to be unconvincing. The applicant was unable to articulate in any detail the central principles of the Local Church, instead providing a very basic response that adherents believe they are the chosen people. In regard to any official positions within the organisational structure of the Local Church, while the applicant referred to the position of Elder, which he identified as being a more experienced member of the church who had served God for a certain period of time and was very devoted to their faith, he failed to identify the position of deacons or deaconesses, who according to Local Church sources, are responsible for assisting the elders (who are said to oversee the group’s operations, assumes legal responsibility for church properties and supervises service content and structure) and administering the Lord’s Table (see: The Offices – The Official Positions – in the church u.d., II. In the Local Church, < and Local Churches  u.d., Beliefs and Practices: FAQ’s,   The applicant was also not able to explain the significance of the bible in the practice of the Local Church, stating simply that it gives strength and helps overcome adversity. While the applicant claimed to read the bible, which the Tribunal accepts on the information before it discussing the churches beliefs and practices (Local Churches  u.d., Beliefs & Practices: Concerning  the Church Life, adherents are encouraged to do regularly, the Tribunal found the applicant’s evidence to be lacking, particularly regarding the importance of the bible in relation to various practices of the church such as spiritual exercises including reading the word, speaking (or prophesying) and pray-reading ( see: Main’ (undated), The Meeting and Spiritual Exercise of the Local Church website Further, when the Tribunal asked the applicant generally about things Jesus had said, the applicant cited Chapter 21, verses 15-34 from the book of Genesis, in the Old Testament. As the Tribunal put to the applicant in the hearing, the passage he cited from the Old Testament has nothing to do with Jesus, and when asked to explain the passage he had volunteered, the applicant was unable to articulate its meaning or significance. The Tribunal found the applicant demonstrated little familiarity with this passage during the hearing, which leads it to seriously doubt his claims regarding his regular reading of the bible and also his religious beliefs.

27. Additionally, the Tribunal found the applicant’s evidence that he treated Li Chongshou, one of the founders of the Local Church, as the living Jesus and follows him, concerning. While the Tribunal accepts that members of the Local Church regard Li Chongshou a founder of the church, as the Tribunal put to the applicant in the hearing, there is nothing in the information before it to suggest that anyone in the Local Church, including “family gathering” as the applicant contended, consider Li Chongshou to be a living Jesus.

28. The Tribunal found the applicant’s evidence as discussed above, to not be consistent with that of a person who allegedly had been baptised into and had been attending the Local Church since the age of 10 and whose parents had allegedly been leaders of the church within their village.

29. The Tribunal has also taken into consideration the applicant’s evidence regarding his attendance at the Local Church in Australia. Despite arriving in Australia in July 2007, the applicant did not start attending the Local Church here until 5 years later, at the end of December 2012. The Tribunal finds the applicant’s delay in finding a Local Church in Australia and practising his alleged religion raises serious doubts about his claims regarding his religious beliefs. The Tribunal does not accept the applicant’s explanation that while he was studying none of his friends attended the Local Church so that was why he did not go to church. The Tribunal does not accept that if the applicant had been a member of the Local Church since the age of 10 and was committed to his religious beliefs as he conveyed during the hearing, that he would not have been able to find out over a period of several years, where he could find a Local Church, particularly amongst the large Chinese community living in [City 2]. Similarly, the Tribunal does not accept the applicant’s explanation that he struggled to find a Local Church because they are quite casual and people gather in houses and most do not have signs. As the Tribunal noted in the hearing, a central practice of the Local Church is to preach and find new members, therefore it does not accept that the applicant would have been unable to locate a Local Church over such a long period of time, if he had tried.  

1. While the Tribunal accepts that the applicant subsequently became a member of the Local Church in late December 2012 (also being baptised a short time later in January 2013), a few months before he lodged his protection visa application, as confirmed in the letter he provided from a member of the Church in [City 2], the Tribunal finds that the timing of the applicant’s actions in joining the Local Church in Australia and being baptised raises concerns that it was done solely for the purpose of strengthening his claims for protection. Therefore, for the purposes of s.36(2)(a), the Tribunal has disregarded the applicant’s conduct in Australia pursuant to s.91R(3).

2. The Tribunal also has concerns regarding the applicant’s claims in relation to the problems that he and his parents allegedly experienced in China because of their alleged religious beliefs. The Tribunal is further supported in its findings regarding the credibility of the applicant’s claims based on a number of discrepancies and inconsistencies in the applicant’s evidence.

3. The applicant claimed in his statement attached to his protection visa application that in 2000 his father was warned by the government twice because he organised family church gatherings and was put in labour reformation for six months. However, in the hearing the applicant claimed that both his mother and father were detained twice in 2000 for 3 months on each occasion. He confirmed that this was the first time his parents were detained and that both his mother and father were detained on each occasion. The Tribunal notes that there was nothing in the applicant’s statement suggesting that his mother was detained for a total of six months in 2000, along with his father. Nor does it appear that the applicant raised his mother’s alleged detention in 2000 during the interview with the delegate as there is nothing in the decision, a copy of which was provided to the Tribunal, regarding this particular claim. Further, the applicant did not mention in the hearing anything about his father being warned by the government twice because of his alleged religious activities. While the applicant claimed that he was nervous during the hearing and had said his parents had both been detained but in fact it was only his father who was detained in the labour camp for half a year, the Tribunal notes that the applicant was repeatedly asked if both his parents were detained in 2000 and he confirmed this as correct. As such, the Tribunal does not accept the inconsistency in the applicant’s evidence was the result of his nervousness.

4. The applicant claimed in the hearing that the next incident that occurred was when he was [age], when he thought he was in [high school]. He claimed he was with his parents and other church brothers and sisters at the next village, [where] there was a local gathering and the authorities came and captured everyone. He claimed that his parents were detained for two months and he was in detention for a day and the authorities warned him and also called his school to take him back. The applicant claimed that he lived with relatives during the two months his parents were detained. However, the Tribunal notes that according to the applicant’s statement attached to his protection visa application, he claimed he was detained by the local police for one day because of his involvement in out-of-town missionary activities with the church prayer group. He stated that the police informed his school to bail him out and he was criticised and warned by the school. More significantly, the Tribunal notes the applicant made no mention in his statement, or according to the delegate’s decision (a copy of which was provided to the Tribunal) during the interview with the Department, that his parents were detained for two months during this particular incident. The Tribunal does not accept, given the significance of this claim, that the applicant would fail to mention this prior to the hearing with the Tribunal, if it in fact occurred.

5. Similarly, the Tribunal notes the applicant claimed in the hearing with the previous Member that his parents were allegedly detained again in 2005, when they had organised a gathering in their home and people rushed into their house when they were talking about Jesus and took them away. He claimed they were detained for a period of one and a half months. However, as the Tribunal put to the applicant, there was nothing in his statement attached to his protection visa application or in the delegate’s decision about this particular incident. The Tribunal finds it implausible that if the applicant’s parents had been detained for what appears to be the third time on the face of the applicant’s evidence to the Tribunal, that he would not raise this at an earlier stage of the process given the importance of this claim. While the Tribunal notes the applicant’s reference in his statement to his mother being arrested twice when preaching out of town and each time being fined and detained, the Tribunal does not find this consistent with the applicant’s oral evidence in the hearing regarding the alleged occasions that his parents were detained. Nor is there anything in his statement to suggest these particular occasions when his mother was allegedly detained occurred when he was detained by the local police, as discussed above. 

6. The Tribunal notes that according to the applicant’s statement attached to his protection visa application, he claimed that after he was detained for a day by the local police and criticised and warned by the school, he dared not go to church activities anymore. Yet, in the hearing with the previous Member, he stated that he continued to go to meetings until he left China in June 2007. When the Tribunal put this to the applicant, he responded stating that he attended gatherings at his home. The Tribunal notes according to the applicant’s evidence, his parents were leaders in the Local Church in his area and his house was one where most gatherings were allegedly held. As gatherings are a central activity in Local Church practice, the Tribunal finds it implausible that if the applicant had continued to participate in such activities at his home, he would state that he dared not go to church activities anymore, which would include participation in gatherings.

7. The applicant also claimed in the hearing with the previous Member that his parents were doing a small business in China and people would come and make problems for them and would confiscate items once a week maybe and they were sure they worked for the government, yet the applicant did not mention anything about this in his statement attached to his protection visa application. Nor is there anything in the delegate’s decision to indicate he raised this particular problem in his interview with the Department. The Tribunal notes that the applicant specifically referred to his mother running a small business in his statement so in light of this, it would expect that if his mother had experienced ongoing problems with her business, as regularly as once a week, he would mention this prior to the hearing with the Tribunal, if it in fact did occur. The Tribunal has had regard to the applicant’s explanation that due to his limited English he asked someone else to write his statement. He claimed that when he provided the details verbally some may have been missed. The Tribunal notes that the applicant gave evidence to the previous Member that he had written his statement in Chinese and it was translated by someone else, which is consistent with the document submitted to the Department which is in both English and Chinese. As such, the Tribunal does not accept that the person responsible for writing the applicant’s statement in English missed what he said. The applicant subsequently admitted that he wrote his statement but that he did not write every detail. Taking into consideration the significance of the claims that the applicant failed to raise until the hearing, the Tribunal finds it implausible that if his parents were detained on the numerous occasions claimed or that his mother’s business was affected to the extent claimed, he would not have mentioned this at an earlier stage.

8. The Tribunal finds the applicant’s delay in raising claims regarding his parents detention, as discussed above, and the problems his mother allegedly experienced in running her business raises serious concerns that he has embellished these aspects of his claims in an effort to bolster his case and leads the Tribunal to find that his claims regarding his and his parents religious beliefs and the difficulties they experienced as a result are not credible. 

9. The Tribunal also finds the applicant’s evidence regarding his parents complaining to local authorities about their alleged detention in 2011 implausible. The Tribunal finds it far-fetched that as members of a group considered an evil cult, and with their alleged experience of repeatedly being detained, his parents would go to the authorities to complain or hold a mass appeal with other members of the church. The Tribunal also notes the applicant’s evidence that his father was quite ill from 2010 and it finds it implausible that he would have engaged in such activity in 2011 given the possible ramifications it would have on his health.

10. The Tribunal notes according to the applicant’s evidence in the hearing with the previous Member, after this alleged incident in 2011, the police went to his parents’ home and checked the computers and they found an article he had written in code to tell other believers in China about what happened to them. He stated that it was an article written by other brothers and sisters from the same village as his. Yet, in his statement attached to his protection visa application he claimed that he told his parents about an overseas website address on which they could reveal the truth about persecution. The applicant was unable to explain the difference in his evidence.

11. Finally, in the hearing with the previous Member the applicant claimed that his parents left their village in Chinese New Year 2012 (February 2013) and travelled to Guangxi and that when they returned to Fujian province, they went to the next village, [Village 3], where they have remained. However, according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant stated that after a while his parents returned to their home town. While the applicant explained that home town to him meant still within the same province, as the Tribunal put to the applicant, Fujian Province is a considerably large area and it finds it implausible that he would refer to a province as being his home town. The applicant also claimed that [Village 3] is in the same village as [Village 1]. Yet, according to his evidence to the previous Member, [Village 3] is about 15 minutes by bus. As such, the Tribunal does not accept that [Village 3 and Village 1] are the same village.

12. The Tribunal also places weight on the applicant’s delay in applying for protection and finds that this raises further doubt about the genuineness of his claims. The Tribunal notes according to the delegate’s decision, a copy of which was provided to the Tribunal, the applicant was residing in Australia unlawfully since August 2010 when his student visa ceased. Yet, it was only in April 2013, two and a half years later, that he sought protection. It is well established that delay in applying for refugee status is a relevant consideration. In Anandaraj Subramaniam v MIMA (unreported, Federal Court of Australia, Carr J, 10 March 1998) Justice Carr agreed with Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution. His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant. The Tribunal does not accept that the applicant was unaware of the existence of protection visas or the fact that he was eligible to apply for this visa, as he claimed in the hearing. Again the Tribunal refers to the large Chinese community in [City 2] and the availability of such information within that group regarding the existence of protection visas or alternatively access to advice from migration agents. The Tribunal notes the applicant’s evidence that he did seek advice from a migration agent but did not inform this person of the fact he was unlawful or about his alleged religious beliefs and fears related it to. His evidence was that he only became aware of protection visas after joining the Local Church in Australia and he was advised by the brothers and sisters. The Tribunal finds considering all the information before it, that the applicant’s delay in applying for a protection visa raises serious concerns about the genuineness of his fear.

13. The Tribunal finds the deficiencies and inconsistencies in the applicant’s evidence as discussed above, together with his delay in applying for a protection visa, leads it to conclude that the applicant is not an adherent of the Local Church or that his parents are members of the Local Church in China. It does not accept that either the applicant or his parents have participated in any activities associated with the Local Church in China, including organising gatherings at their home, engaging in missionary activities or preaching.

14. The Tribunal does not accept that when the applicant came to Australia he joined Local Church gatherings in China via web camera or that the applicant took back with him CDs with preaching materials in either 2009 or 2010 when he went to visit his family in China, during which time he also claimed to have attended gatherings. 

15. As the Tribunal does not accept that either the applicant or his parents were active or involved in the Local Church in China, it does not accept that either the applicant or his parents were ever detained by the Chinese authorities or that his parents were physically and emotionally abused during these alleged periods of detention. It therefore follows that the Tribunal does not accept that the applicant’s parents had to pay extra money and use connections to have the applicant admitted to senior high school, that his mother’s customers were scared away by people making trouble or that the government tried to threaten his parents and cut their economic sources, that his parents made any appeal to the government in 2011, following an alleged period of detention, or that the applicant’s parents were subsequently monitored by the police, including their calls and computer, and they were restricted to being in their house. Consequently, the Tribunal does not accept that the applicant’s parents escaped from their hometown on Chinese New Year of 2012 and that they have been living in a different village since then. The Tribunal finds that neither the applicant or his parents have experienced any form of harm in relation to their alleged religious practices or beliefs in China.

16. As discussed above the Tribunal accepts that the applicant has since been baptised in the Local Church in Australia and through his participation here in Australia, has gained some knowledge about the Local Church’s beliefs and practices. However the Tribunal is not satisfied that the applicant’s conduct was engaged in otherwise than for the purpose of strengthening his protection claims. As such, the Tribunal does not accept that the applicant has any genuine interest in engaging in Local Church activities in China. It does not accept that upon his return to China, he would worship at a Local Church or engage in any activities or practices associated with the church. The Tribunal also does not accept that the applicant would be perceived as a genuine Local Church adherent based on his activities in Australia. Based on these findings, the Tribunal does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, including possible unfair treatment which may be faced by the applicant’s future wife and children, if he returns to China, because of his alleged membership of the Local Church.

17. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicant will suffer significant harm. While the Tribunal accepts that the applicant has been baptised into the Local Church in Australia, for the reasons discussed above, it does not accept that he was motivated by any religious convictions or commitment to his beliefs. Accordingly, as discussed above, the Tribunal does not accept that the applicant will be perceived as a Local Church adherent based upon his activities in Australia, nor will he engage in any Local Church activities on his return to China. In such circumstances, the Tribunal does not accept that what the applicant might experience upon return to his home in China will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

18. The Tribunal has carefully considered all the applicant’s evidence, particularly the applicant’s oral statement made at the beginning of the hearing and the translation of his written statement received following the hearing, in which the applicant provided an account of his life in China from the time he was a child. The Tribunal accepts that the applicant’s father is unwell, suffering from [a medical condition] and that treatment for his illness is very costly. The Tribunal accepts that the applicant has been supporting his parents financially while he has been in Australia, sending money to them regularly. While the Tribunal appreciates that the applicant may have the ability to earn more money in Australia than in China and therefore provide the utmost support to his parents, the Tribunal does not accept on the evidence before it that the applicant would experience significant economic hardship that threatens his capacity to subsist or the denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Similarly, the Tribunal does not accept that as a necessary and foreseeable consequence of being returned to China, there is a real risk that the applicant will suffer significant harm.

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

20. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

21. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Sydelle Muling
    Member