1410309 (Refugee)

[2015] AATA 3755

1410309 (Refugee) [2015] AATA 3755 (23 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410309

COUNTRY OF REFERENCE:                  China

MEMBER:Penelope Hunter

DATE:23 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2015 at 4:03pm

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 claims to be a Chinese citizen and fear returning to China due to his Christianity and participation in an underground church.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the visa [in] November 2013 and the delegate refused to grant the visa [in] May 2014.

4. On 11 June 2014 the applicant applied to the Tribunal for a review of that decision. 

   RELEVANT LAW

5. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. As set out below, the applicant has previously been refused a protection visa on the basis of the Refugee criterion in s.36(2)(a) of the Act.

6. The Full Federal Court in SZGIZ v MIAC [2013] FCAFC 71; (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

7. As indicated above, the applicant has previously been refused a Protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered “SZGIZ-affected” as he has not left Australia since the final determination of his previous Protection visa application which preceded the Complementary Protection laws. As the applicant has previously had his claims for protection assessed under s. 36(2)(a), the Tribunal must confine its consideration to whether they satisfy the requirements of s.36(2)(aa).

8. The Complementary Protection provisions (see attachment for the full text of these provisions) in s. 36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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’.

9. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected 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.

   SECTION 499 MINISTERIAL DIRECTION

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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

    BACKGROUND & CLAIMS

11. [In] May 2008, the applicant first applied to the Department for a Protection visa in the name of [Mr A], and he claimed to be a citizen of the Republic of Korea. He was granted a Bridging visa A. In the delegate’s decision record the delegate set out a useful summary of the applicant’s immigration history;

    The applicant arrived in Australia [in] April 2008, using a Republic of Korea passport, [number] issued in the name of [Mr A] born [date], bearing a class UD subclass 976 visitor visa and he was immigration cleared in that false name. [In] May, 2008 the applicant lodged an application for a Protection visa in the name of [Mr A] born [date] claiming to be a national of the People’s Republic of Korea. He was granted an associated Bridging visa A [in] May, 2008 which came into effect [in] July, 2008. His application was refused by a delegate [in] August, 2008 which decision was affirmed by the RRT on 27 October 2008. The applicant’s Bridging visa A ceased [in] December, 2008 following which he continued to remain in Australia as an unlawful non-citizen. 

12. As set out in the delegate’s decision, which was provided by the applicant to the Tribunal for the purposes of this review, the applicant claimed in his first Protection visa application that he was a citizen of the Republic of Korea and he had been involved in anti-government demonstrations as a member of the Seoul Student’s Movement Supporting Organization. 

13. The applicant then applied for a further Protection visa, the application under review, [in] November 2013. In his application, the applicant states he was born on [date] and is a citizen of China, and came from [Antu County], Yanbian Korean Autonomous Prefecture in Jilin Province China.  He speaks, reads and writes Mandarin and Korean. He lists his ethnic group as Korean-Chinese. He has never been married. In his application form he states that he lived until 2008 in [Antu County], Yanbian Korean Autonomous Prefecture in Jilin Province China. He also states that he had [number] years education. He does not list any qualification but previously worked as a [occupations].

14. In his second application for a Protection visa, the current application under review, the applicant’s claims are detailed in a statement accompanying the application, these are summarised as follows;

    ·He was born on [date] and is a citizen of China, and came from [Antu County], Yanbian Korean Autonomous Prefecture in Jilin Province China.

    ·He apologised to the Department. He arrived with a false Korean passport and he applied for a Protection visa with the identity shown on that passport. He could not find any evidence regarding the previous visa application due to his migration agent’s deception.

    ·His parents [and siblings] are all Christians. His father was engaged in missionary work, the underground church.

    ·He regularly listened to his father preaching and also followed his father to preach.

    ·Until 2006, there were about [number] Christians following his father. They had a gathering every week, sometimes the applicant’s father was preaching, sometimes he was preaching. The officials in [the] Township began to warn them that such a gathering was illegal conduct.  After this they changed to small group gatherings, the meetings would be 10-12 people. Nonetheless the officials of [the] Township repeatedly destroyed their gatherings as well as forcibly dispersing and wounding brothers who were at the gatherings. Another time the police and township government tried to take some of the brothers away unreasonably for questioning. The applicant was particularly angry.

    ·The Township government officials saw that the applicant was the leader and they started to give him verbal warnings.

    ·After spring 2007 they started to learn a life training course at their gathering. [In] September 2007 the police officers rushed in as they almost finished one of their gatherings. The police looked for the applicant. He was taken for questioning at [the] Township. He was there until midnight. During the questioning a tall policeman used force to the applicant. The purpose of their actions was solely because they wanted him to stop the gatherings and obey the Chinese government. He was also told that the next time if he was caught they would not let him out so easily, they may even sue him.

    ·He decided to escape China. His parents relocated to Yanji city temporarily. The applicant was rejected twice to obtain a visa to Korea. The agent that assisted him to apply for the visa to Korea suggested he apply to Australia.

    ·He applied for his first protection visa in Australia very quickly, however due to an irresponsible agent. The applicant thought that he had a bridging visa until he lost contact with that agent. He had fear in China, therefore he remained in Australia.

    ·He often goes to the [church] in [suburb]. He studied a course there and often goes for worship.

15. The delegate refused to grant the visa [in] May 2014. The Tribunal has listened to a recording of the interview with the delegate and is satisfied that the delegate’s decision contains an accurate summary of the evidence of the applicant at the interview.  The delegate did not consider the applicant to be credible. The delegate assessed the applicant against both the Refugees Convention and Complementary Protection provisions of the Act. As the applicant was previously found to have not to have a well-founded fear of being persecuted for a Convention reason, the Tribunal assessed his claims only against the Complementary Protection provisions.

16. The applicant appeared before the Tribunal on 16 November 2015 to give evidence and present arguments, The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented by his migration agent at the hearing.

17. The applicant stated that the information contained in his protection visa application was correct, there was nothing further he wished to add or correct. He was aware that a previous Protection application had been made on his behalf in a false name. He engaged someone to lodge the application and claimed it was made by an agent. He had not met the agent. He claimed to have no idea of the content of the application. He used his Korean passport as he had just arrived in Australia and he did not know anything.

18. He claimed he left China on his Chinese passport that was issued in [2008]. He claimed to have no difficulty in obtaining the passport or departing China. He could not recall any details of his previous application to the Tribunal, however acknowledged that he was aware it was made on his behalf in a false name. He claimed to fear the authorities in China. He said that the government would arrest him because he is a religious believer. When asked what religion he followed, he answered just religion. He claimed to have attended an underground church and never attended a registered church in China. He claimed that he had experienced problems with the authorities in China in 2005 due to attending an underground church and had been detained.

19. In Australia the applicant claimed to have attended a church at [suburb]. He did not recall the name or the denomination. He told the Tribunal that the priest had said there was no denomination. When asked what it meant to him to attend church, the applicant responded that God would protect you. When asked to explain what he believed in, the applicant did not respond.

20. The applicant also claimed the government would arrest him and put him in prison because he was suspected of the death of one of his friends. He claimed a friend in his circle of friends had named him as beating to death the other friend. He claimed this occurred in January 2006. He had difficulty recalling the name of the friend who allegedly died, but told the Tribunal their name was [Mr B]. When asked the name of the friend that accused him the death, the applicant replied [Mr B]. He claimed that after this incident he was approached every day beaten and threatened by 6 to 8 people engaged by his former friend. He claimed to have been hospitalized on one occasion due to the beating but did not have any evidence of medical treatment he received. In March 2007 he escaped to Yanji City. After that they just went to his place to try to find him and his parents refused to tell them about his whereabouts. The applicant claimed to have reported it to the police who only said they would interrogate his friend. He could not explain why he made no mention of these claims in his written statement filed with his Protection visa application.

21. The Tribunal also has before it the Department’s files relating to the applicant’s Protection visa applications and the Tribunal file relating to the review application.

    ASSESSMENT OF CLAIMS AND EVIDENCE

22. The applicant provided a copy of his Chinese passport and a passport of the Republic of Korea when he lodged the application under review.  As set out in the delegate’s decision, the Korean passport was subsequently examined by a qualified forensic document examiner who was of the opinion that the passport had been fraudulently altered. He claims that his Chinese passport [number] bearing his photograph and particulars is his true identity. There is no evidence before the Tribunal that the Chinese passport is false. On the basis of the applicant’s Chinese passport, the Tribunal finds that the applicant is a citizen of China.

23. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than China. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

24. The applicant was non-responsive to many of the questions asked by the Tribunal. When the applicant did respond the Tribunal found his oral evidence to be vague and when pushed the details are inconsistent with some of the previous information he had provided. The Tribunal finds the applicant is not a witness of truth and is satisfied that the applicant has not told the truth in relation to crucial aspects of his claims. For this reason the Tribunal finds that the decision should be affirmed. The reasons for this finding are discussed in more detail below.

    Christianity

25. In relation to the claim that he was Christian the applicant was unable to explain to the Tribunal what religion he followed. He stated simply that was a religion. When asked what he believed the applicant did not provide a response. The applicant was unable to expand upon any of the information contained in his written claims. When asked what role he had in the church in China the applicant did not respond. The applicant had no comment to the Tribunal when it was put to him that it had difficulty accepting his claimed that he was a preacher for the underground church when he was unable to tell the Tribunal anything about his religion. The applicant also declined to comment when it was put to him that in his written claims he had said he was detained by the police in September 2007, yet his evidence to the Tribunal was that this had occurred in 2005. The applicant claimed to have been baptised in Australia [in] December 2013. He was unable to satisfactorily explain why it is recorded in the delegate’s decision that he told the delegate he was baptised [in] December 2010. He did not have any evidence of attending the church at [suburb]. He claimed to have a certificate of baptism but he had left this at home. When asked for details of the course he had studied as set out in his written claims, the applicant claimed he forgot.

26. The Tribunal does not accept that the applicant is a Christian or that he left China because of any problems he had in relation to his religion. The applicant was unable to identify to the Tribunal his religion. He failed to articulate it was a Christian. He did not provide any comment when asked to explain his belief. The closest he came to expressing a belief was that God would protect him. The Tribunal considers this lack of knowledge completely inconsistent with his written claims that he had been raised by a Christian family and had been attending Christian church his whole life both in China and Australia, that his family was involved in missionary work and he would preach. As the Tribunal is not satisfied the applicant was a Christian it is also not satisfied that he was ever detained, warned or questioned by the police or authorities in China on the basis of his Christianity.  

27. The Tribunal does not accept the applicant’s explanation for the reason his first claim for protection was made as a Korean in May 2008, shortly after his arrival in Australia.  The Tribunal considers that had the applicant genuinely been harmed in China as a result of his Christian’s beliefs, and to have genuinely fled China for that reason, he would have ensured he made an application in his own name as a result of these claims, rather than on a fraudulent basis using a fraudulent passport and identity. The applicant was unable to satisfactorily explain why he had not taken any steps to provide details of his experience in China to the Department and lodge a Protection visa on that basis for a further five years. He also was unable to satisfactorily explain the extent of his knowledge of, or complicity in, his previous application. 

28. The applicant has claimed that he practice Christianity in Australia and has attended church in [suburb] for five or six years. There has been no supporting documentation provided to the Tribunal or the Department confirming the applicant’s attendance at church. Due to the applicant’s extremely limited understanding of Christianity, the Tribunal is not satisfied that he has attended church in Australia on anything other than a limited basis. It also does not accept that he has done so because he is a committed and genuine Christian. The Tribunal does not accept that the applicant is a Christian and it also does not accept that he intends to practice Christianity upon his return to China.  

    Claims due to death of friend

29. As indicated above, although not set out his in application for the Protection visa. The applicant raised at hearing fears of harm as a friend suspected him in the death of another friend. The Tribunal found his evidence on this matter extremely unsatisfactory. The applicant told the Tribunal he did not wish to comment on why he did not include this claim as part of his application. Initially he had difficulty recalling the name of the friend he was alleged to have killed. He then gave the Tribunal the name of the same friend as the one who suspected him of the death the other. He claimed this incident occurred in January 2006, and he endured daily threats and beatings until he escaped to Yanji city in March 2007. Although he claimed to have been injured as a consequence of these beatings and hospitalised there was no medical evidence he could provide to the Tribunal. Initially he said that he had not sought assistance stop the beatings. The applicant then corrected his evidence to say that he went to the police station once and that they would only interrogate his friend. The Tribunal finds it implausible that if the applicant was subject to daily beatings for over a year, which at some stage left him hospitalised, he would not seek and obtain assistance from the police. The applicant also claimed that the beatings and harassment ceased when he went to Yanji city in March 2007. While in Yanji city he claimed to support himself working in construction. He said he continued working in this job until he departed China in April 2008. When it was put to the applicant that he had set out in his protection Visa application form that he was working as a [occupation] for a [company] in Antu County, from August 2006 to March 2008 the applicant declined to comment on the inconsistency or provide an explanation to the Tribunal.

1. The Tribunal does not accept the applicant has given truthful evidence in relation to the claimed death of a friend in 2006, for which he claims another friend suspects he is responsible. The applicant first made this claim in his interview with the delegate 2014, having made two previous claims for Protection on a different basis. The Tribunal considers that this claim would have been mentioned at an earlier time if this incident actually occurred and the applicant feared harm because of it. As set out above his evidence as to the particulars of the event were vague and lacked detail, there was no spontaneity to his evidence that provided the Tribunal with any confidence that he was recalling actual events. Furthermore the claim about having relocated was inconsistent with his earlier evidence to the Tribunal at the hearing that he had lived in [Antu County] his entire life, prior to leaving China in 2008. It was also inconsistent with his written evidence that he had worked as a [occupation] for a [company] prior to his departure. The Tribunal does not accept that the applicant had a friend who was beaten to death, or that the applicant was ever suspected or in any way implicated in his friend’s death. The Tribunal does not accept that he genuinely fears harm in relation to this issue. The Tribunal further notes that the applicant was able to obtain a passport and depart China legally without hindrance, which would also suggest that he was of no interest to the Chinese authorities in relation to this incident. The Tribunal considers it evident that the applicant has fabricated this claim in a further attempt to obtain protection in Australia, following previous refusals of his applications for protection.

   Conclusions

2. The Tribunal is not satisfied, having considered all of the evidence, that the applicant has given a truthful account of his experiences in China. The Tribunal has not accepted that the applicant has suffered harm in China due to his Christianity or that he will practice Christianity upon his return to China. Nor has the Tribunal accepted that he was suspected in the beating death of a friend.

3. The Tribunal is not satisfied, having regard to all of the evidence, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk he will suffer significant harm because of his religion or being suspected in the death of a friend. Nor does the Tribunal accept that the applicant will suffer significant harm for any other reason.

4. Accordingly, having considered all of the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of his life, the death penalty will be carried out on the applicant, or the applicant will be subject to cruel or inhuman treatment or punishment, or the applicant will be subject to degrading treatment or punishment.

5. The applicant stated at the hearing that the claims made in his first protection visa application were false. He stated that he is not, and never has been, a South Korean citizen and has never lived in South Korea. Therefore the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm because of any activities engaged in while living in South Korea.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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

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

   Penelope Hunter
   Member