1411745 (Refugee)

[2015] AATA 3165

1411745 (Refugee) [2015] AATA 3165 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1411745

COUNTRY OF REFERENCE:                  China

MEMBER:Chris Thwaites

DATE:10 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2015 at 2:12pm

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] October 2013 and the delegate refused to grant the visa [in] May 2014.

3. On 3 July 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s files relating to the applicant’s protection visa applications and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the delegate’s decision record provided to the Tribunal by the applicant.

5. According to the decision record the applicant was born in Fujian Province in China in [year] and arrived in Australia [in] November 2006 on a subclass 571 Student Visa. That visa expired [in] April 2009 and the applicant remained in the community as an unlawful non-citizen until [in] November 2009 when he was intercepted by local police who referred him to the Department as he did not hold a valid visa. The applicant was subsequently issued a Bridging visa E and [in] November 2009 the applicant lodged his first Protection visa application. That application was refused [in] March 2010 and that decision was affirmed by the Refugee Review Tribunal (RRT) (differently constituted) on 25 February 2011. The applicant’s Bridging visa E expired [in] July 2011 when he became unlawful. The applicant lodged his second Protection visa application [in] October 2013.

6. The applicant’s written claims are contained in a statement lodged as an attachment to his visa application forms. In summary the applicant claims his mother is a Christian and had suffered persecution from the local government on the charge of attending an unauthorised church. The applicant grew attached to the church and was abused and menaced on account of his family background. The applicant disagrees with the previous RRT decision that he was neither a target of governmental persecution nor a victim of direct suppression because he was underage at the time. Now the applicant is a grownup he still keeps his faith and spiritual connection with his family church, preaching gospel, and swears allegiance to his church. The applicant claims he will be loyal to his original church and keep on preaching and making witnesses like his mother if he returns to China, and these actions alone are sure to bring direct dangers to him.

7. The applicant states his mother always cautioned him that the churches at home are still in a precarious situation and that the government insisted all family churches are supervised by the Patriotic Church and those that refuse are denied the right to register as lawful, and are outlawed and penalised severely. The applicant’s church in his hometown is in such a state and his mother has repeatedly warned him not to return to China.

8. The applicant states he did not lodge [his first] protection visa application earlier because he did not know the exact definition of refugee and did not know a student could lodge. He came to Australia to study and was not a criminal wanted by the Chinese Government and was not a fugitive seeking asylum. It was not until the day before he lodged his application that he had some information about the refugee application and consulted an immigration agency. The applicant understands the basic tenants of Christianity and often attends on-line sermons and has decided to commit himself to preaching the gospel and being a witness to God. This alone has made it impossible for him to survive in China as unauthorised preaching is outlawed by the government. The Chinese government has cracked down on churches and persons preaching on their own. Since the RRT decision the applicant’s mother was detained by the police twice for preaching gospel. Before Easter Day in 2012 his mother and [some] other people went to [another] Province for pastoral care of the local church and were arrested by local police and kept in custody for a week where they were abused and humiliated. They were then handed over to local police who kept them in custody for another week and pressed for a cash deposit and bail money. The police warned the applicant’s mother if they were ever found preaching again the deposit money would be confiscated and they would be denied the chance of being bailed out and would be sent to re-education through labour. The applicant’s mother is a pious Christian, and has served the church by preaching for many years, and often invites priests from abroad to preach in their churches, which is a serious offence. She is worried about the possible fate for the applicant should he return to China.

9. The applicant claims that soon after he arrived in Australia he went to [a church in] Sydney.

10. The applicant states that when he heard about this mother’s arrest by the Chinese Police he exposed the information on the internet and pretty soon it was deleted and later his website was closed. He heard the cyber-police in China keep a close surveillance of all the web correspondence and they can easily trace any suspect if they want. Their computer has already been examined by the police, so his mother has warned him not to try it anymore. The applicant followed her advice and deleted all the records of his correspondence in his computer.

11. The applicant states his parents are divorced and his desire is especially strong for love of his faith. He is applying for protection from the Australia government out of his enthusiasm for gospel and his desire for faith freedom. He quit school on account of his family’s poor economic situation and has never failed to dream of resuming his education. He hopes the Australia government can offer him a way to pursue his faith and education.

12. According to the decision record the applicant stated during his interview with the delegate, held [in] April 2014, that while at school in China he evangelised at his boarding school. He explained that he would see if anyone was interested in Christianity and, if so, he told them Bible stories. When asked how he identified if someone was interested in Christianity he would tell them that he believed in Jesus Christ and those that were not interested would not listen. He explained that he did not conduct his evangelism very openly and that it did not take place during school hours, so would not have been of interest to the school authorities. He told the delegate his evangelism took place in classrooms or the dormitory of the boarding school. The decision record notes this information was not raised in the applicant’s first protection visa application.

13. During the hearing the applicant told the Tribunal that he feared returning to China because he would attend the underground church, and if he attended the underground church in China he will be arrested. The applicant told the Tribunal it is illegal for anyone from the underground church to preach the gospel, and he did not want to be arrested like his mother was, or lose his freedom.

14. A number of short adjournments were taken during the hearing, one requested by the applicant because he felt dizzy and needed a break. On questioning the applicant told the Tribunal he was not on any medication and just needed to have a break. On resumption of the hearing after each break the applicant confirmed he felt well enough to proceed.

FINDINGS AND REASONS

Nationality

1. On the basis of the applicant’s Chinese passport presented at the hearing, the Tribunal finds that the applicant is a citizen of China.  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).

   S.48A

2. During the hearing the Tribunal discussed with the applicant the operation of s.48A in relation to his current application. As noted above, the delegate’s decision record indicates the applicant’s first protection visa application was refused [in] March 2010, which is prior to the commencement of the complementary protection provisions on 24 March 2012.

3. 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. The Full Federal Court in SZGIZ v MIAC (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.

4. On the evidence before it the Tribunal finds that the applicant’s first protection visa application was refused [in] March 2010 because the applicant did not satisfy the Refugee Convention criteria. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

   Complementary protection

   Credibility

5. During the hearing the Tribunal discussed with the applicant his background, education, employment and family composition. The applicant gave generally consistent oral evidence to that provided to the Department in his current and previous protection visa applications as well as the evidence provided during the previous RRT review application. The Tribunal is concerned the applicant raised new claims, failed to mention a number of matters previously claimed, and changed his oral evidence in repose to further questioning during the hearing. The Tribunal is concerned the applicant has exaggerated or fabricated some of his claims in order to strengthen his application. The details are discussed below.

6. The Tribunal discussed with the applicant his initial interest and exposure to Christianity and how his faith developed. The applicant provided generally consistent oral evidence to most of his written statement and to the information and evidence he had previously provided to the Department and the RRT.

7. During the hearing the applicant displayed a level of knowledge of the Christian Bible and some of the tenants of the Christian faith. On the basis of that evidence the Tribunal accepts the applicant was introduced to Christianity as a young child by his mother. The Tribunal accepts the applicant began attending an underground Christian Church in China from 2003 once a week, where about ten people would attend, and they would meet at different locations. The applicant told the Tribunal he would sometimes attend Thursday evening meetings. Whilst initially omitted from his oral evidence the Tribunal also accepts the applicant was baptised in China in 2005. When asked what else the applicant did in relation to his religious practice in China, the applicant told the Tribunal that in China he did not have a good understanding about the Bible but did share some of his opinions about the Bible with his class mates at [a stage of] school, which he attended between 2003 and 2005.

8. The Tribunal accepts the applicant attended the [church] in [suburb] every week soon after he arrived in Australia. The Tribunal accepts as evidence of this the applicant’s oral evidence as well as the letters in support from [three supporters], which the applicant provided to the RRT in his previous application for review.

9. The Tribunal accepts the applicant’s oral evidence that he stopped attending Church when he moved to [another city] about one year ago and that his current religious practice involves just reading his Bible by himself.

10. During the hearing the Tribunal asked the applicant if he or his family had experienced any problems due to their religious practices in China. The applicant told the Tribunal the underground church is not accepted by authorities and is considered illegal in China. The applicant told the Tribunal if the local police know about it they would come and arrest people. The applicant told the Tribunal he had not been arrested but his mother had, in 2006, and in 2007. On further questioning the applicant was not able to recall exact dates but told the Tribunal his mother was first arrested in April/March 2006 and then again in March 2007.

11. The applicant told the Tribunal his mother was arrested in 2006 at a gathering which was reported to police. He was away studying at the time and was not sure what exactly happened. His family told him about it one week after the arrest. The applicant told the Tribunal his mother was taken to a detention centre for two weeks and beaten with bamboo whips.

12. The applicant told the Tribunal his mother was arrested at a gathering / or for preaching the gospel, in March 2007. He told the Tribunal his mother was detained for two weeks. On further questioning he was not clear if the arrest took place at a gathering or while his mother was preaching the gospel, but thought it was while she was preaching the gospel. During her detention she was beaten. When asked if anyone else was arrested the applicant told the Tribunal a neighbour was also arrested. On further questioning the applicant told the Tribunal his father was also arrested and detained for two weeks and the government cancelled his business license and his father was warned not to get involved in the underground church. The applicant was not aware of the details of his parents release, but thought they may have been warned and released.

13. The applicant also told the Tribunal his mother was arrested in March 2012 in [another] Province. On questioning the applicant told the Tribunal preaching gospel involved telling other people to believe in God and Jesus Christ, passing out pamphlets in public places and squares and telling stories about the Bible. The applicant told the Tribunal that his mother was detained for one week by the police in [the other] Province and then returned to the local police in [Town 1] and detained for one more week. On further questioning the applicant did not know where in [the other] Province his mother had been arrested and thought it was in a small town. The applicant told the Tribunal [some] others were arrested with his mother. He told the Tribunal they were all beaten and verbally abused during their detention. The applicant told the Tribunal his mother paid a security bond to guarantee she would not be involved in any activities not allowed by the authorities in order to obtain her release. The applicant told the Tribunal that he has not heard that anything further has happened to his mother since this time.

14. While the applicant’s evidence was quite vague and required prompting and repeated questions in relation to his mother’s and father’s arrests, the Tribunal accepts the events of 2006 happened while he was away at school, and in 2007 after he arrived in Australia, and that the applicant was quite young at the time and that a number of years have since passed. The Tribunal notes the applicant has been broadly consistent about these arrests since his first protection visa application and the Tribunal accepts his oral evidence that his mother was arrested and detained in 2006 and that his mother and father was arrested together and detained in 2007.

15. The Tribunal notes the delegates’ credibility concerns in relation to the applicant’s claims that his mother was also arrested and detained in 2012. While the applicant’s evidence was also vague about this incident, the Tribunal does accept he was in Australia at the time and the information has been provided to him by his mother. The Tribunal is prepared to give the applicant the benefit of the doubt and accept his oral evidence that his mother was arrested and detained while preaching the gospel in [the other] Province in March 2012.

16. As noted above, while the Tribunal does accept some of the applicant’s claims, it is concerned he has exaggerated and or fabricated some claims in order to strengthen his application. During the hearing the Tribunal discussed with the applicant his family composition and their residential arrangements. The applicant told the Tribunal his father and mother were divorced in 2007 and he has since lost contact with his father. He told the Tribunal he is unsure where in Fujian his mother lives as she moves around and has no fixed address because she has been moving around and preaching the gospel since about 2006. The applicant told the Tribunal his mother is sometimes in [another province] and sometimes in Fuqing. On questioning the applicant told the Tribunal his younger brother stopped living with this mother in June or July 2007 because his brother was often arrested and because his mother preaches gospels she was also arrested and does not want to get him into any trouble. On further questioning the applicant told the Tribunal he did not mean that his younger brother was often arrested. He told the Tribunal his mother was afraid his younger brother would get arrested. He then told the Tribunal his younger brother had never been arrested. The applicant told the Tribunal his mother was concerned if she continued to live with the applicant’s younger brother he may be arrested. The applicant told the Tribunal he may not have initially put it correctly. While the Tribunal has taken this into consideration the Tribunal is concerned the applicant changed his oral evidence about his brother’s arrests when questioned for more detail. The Tribunal also raised its concern the applicant had failed to mention in his written statement that his mother had been moving around since 2006 preaching the gospel and has had no fixed address since that time. In response the applicant told the Tribunal he said 2006 but actually it should have been 2012, because in Fujian his mother had been arrested several times so she felt it would be safer for her to move to other provinces. The Tribunal is concerned the applicant has changed his oral evidence to address an issue raised by the Tribunal. The Tribunal notes the new oral evidence does not explain why the applicant did not include this information in his written statement. The Tribunal also notes the applicant’s oral evidence is that his mother was arrested in 2006 and 2007, and then was arrested in [another province] in 2012. While the Tribunal notes the applicant’s oral evidence is that after one week his mother was transferred to the local police in [Town 1] and detained for a further week, the Tribunal does not accept as credible she would then decide to move between Fuquing and [the other province] (where she had recently been arrested) in order to avoid further arrests. Given the changes in the applicant’s oral evidence and the Tribunal’s concerns about the credibility of his claim, the Tribunal is not satisfied the applicant’s mother stopped living with his younger brother in 2006 or 2012, or that she moves around between Fujian and [the other province] and has no fixed address in order to preach the gospel and/or to avoid arrest. The Tribunal does not accept the applicant’s younger brother has ever been arrested.

1. During the hearing the Tribunal noted the applicant’s written statement indicates that when he heard of his mother’s arrest he exposed that information on the internet. The applicant told the Tribunal he was angry and spread some information on a website telling that in China people do not have freedom of speech or personal freedom. He also spread materials about his mother’s arrest. The applicant told the Tribunal he put this information on a common [website]. The applicant told the Tribunal it is not his website and when asked if the applicant had any copies of the materials he spread on this website he told the Tribunal that information was deleted by the website manager and in China any information that does not meet their criteria will be deleted. The applicant told the Tribunal he talked about this issued with his mother who told him not to do that again. She told the applicant her personal computer was checked by the police. He told the Tribunal nothing happened to his mother after her computer was checked. During the hearing the Tribunal noted the applicant’s written statement states:

   I had exposed the information on the internet. But pretty soon it was deleted and later my web-site was closed.

2. The Tribunal raised it concern that the applicant’s oral evidence was different to his written statement. In response the applicant confirmed the website was not built or established by him and the person who translated his written statement may have made a mistake. The Tribunal is not persuaded by the applicant’s response. The Tribunal notes the applicant had told the Tribunal at the start of the hearing he was aware of the contents of his written statement and did not wish to make any changes. The Tribunal does not accept the translator of the written statement made a mistake. The Tribunal notes the applicant’s oral evidence is different to his written statement and considers this reflects poorly on his credibility and the reliability of his claim. The Tribunal does not accept the applicant has posted information on the internet about his mother’s arrests or about freedoms in China.

3. During the hearing the Tribunal noted that the delegate’s decision record indicates the applicant spoke to the delegate about his use of online sermons. The applicant told the Tribunal he watched videos of Yuan Shi Ming lectures on the Bible. On further questioning the applicant told the Tribunal he has done nothing else on line in relation to his religion.

4. During the hearing the Tribunal noted the applicant’s written statement indicates he and his mother often exchange witnesses through the internet. The applicant told the Tribunal he talks about every two weeks to his mother on [a web service]. He told the Tribunal she is not well educated so they communicate through video rather than text. He told the Tribunal they talk about sections of the Bible and argue about whose interpretations is correct.

5. The Tribunal notes the applicant’s oral evidence that his mother’s home computer has been checked by the police in China and nothing has resulted from that check. On the evidence before it the Tribunal is not satisfied any of the applicant’s on line activity has come to the attention of the authorities in China, or that his risk of attracting any adverse attention has been increased by his activities.

6. During the hearing the Tribunal noted the applicant’s written statement indicates he will be loyal to his original church and keep on preaching and making witnesses like his mother if he goes back to China. The Tribunal noted the applicant’s oral evidence was that he has stopped attending church and that his only current religious practice was to read his Bible to himself. On questioning why the applicant would not just continue to do what he is currently doing if he returned to China, the applicant told the Tribunal he could not obtain a working visa and could not find a job in Sydney which did not need a visa, so he had to go to other places to find work. He told the Tribunal he owes debts to friends and has no choice but to leave Sydney and work elsewhere. The Tribunal noted that the applicant’s oral evidence indicates he has never preached the gospel like his mother, it noted he had spoken to his school mates about his opinion of the Bible in high school, but apart from that had only ever just attended church gatherings. The applicant questioned what preaching the gospel means and if it cannot be done in a private place. The Tribunal noted the applicant had told the Tribunal that his mother preached the gospel in public places, passing out pamphlets and telling stories about the Bible. The Tribunal noted that is not what the applicant had been doing in Australia. The applicant told the Tribunal in Australia he had not taken part in any large scale activities organised by the church because his English is limited, but preaching gospel is telling other people that God exists as a witness and if he tells other people that God exists it can be considered as preaching gospels. While the Tribunal accepts the applicant’s mother may pass out pamphlets and tells Bible stories in public places, the Tribunal finds the applicant has never done this, and it does not accept the applicant will do this if he returned to China.

7. During the hearing the Tribunal noted that country information indicated that authorities in Fujian have a more liberal attitude towards small house churches and that people are able to attend small gatherings without being harassed or arrested[1]. In response the applicant told the Tribunal that anyone who attends a small home gathering would be arrested. He noted his mother was arrested in 2006 for attending a small home gathering and that in China any unregistered church member would be arrested. The applicant told the Tribunal he had heard underground church members could be arrested in Fujian province from some brothers at the [suburb] Church. He told the Tribunal someone at the church was applying for a protection visa because he or she was persecuted back in China in 2011/2012.

   [1] UK Home Office 2014, Country Information and Guidance China Christians, 13 June < Schak, David 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2; US Commission on International Religious Freedom 2012, ‘China’, Annual Report 2012, March, p.146

8. The Tribunal has taken into consideration the internet articles from AsiaNews.it and Spero News, indicating one or two Priests were arrested in Fujian in March 2010 for organising a winter camp for 300 university students, as well as the International Religious Freedom report 2007, provided to the RRT during the applicant’s previous application for review. The Tribunal has also taken into consideration the DFAT Thematic Report Unregistered religious organisation and other groups in the People’s Republic of China, 3 March 2015, as well as the DFAT Country Report People’s Republic of China, 3 March 2015. While the Tribunal notes the thematic report indicates there has been an economic development program in Zhejiang province which has resulted in more than 300 church crosses being removed, many from state sanctioned churches, and the report notes a number of raids on unregistered churches in Guangzhou, and forced closures in Shandong, and arrests and closure of a large house church in Beijing (whose congregation numbered in the thousands), other country information more specifically focussed on the applicant’s home province of Fujian indicates there are few reports of repression of house churches in that province and that Fujian is rarely mentioned in reported breached of religious freedoms by the US Department of State, Amnesty International, Human Rights Watch or various Christian NGO’s[2]. While some incidents have been reported since 2006 they appear to be more connected with a crackdown on specific sects designated by the authorities as evil cults. The applicant has not indicated he belongs to any of these very specific religious organisations. On the evidence before it the Tribunal does not accept the applicant’s claim that anyone who attends a small unregistered house church gathering in Fujian would be arrested, or that any unregistered church member would be arrested.

   [2] ibid

   Conclusion

9. While the Tribunal notes the applicant has not attended a church in over one year, it does accept that if the applicant returned to China he may attend an underground unregistered church in Fujian. The Tribunal does not accept the applicant will preach the gospel in public, or hand out pamphlets, or tell Bible stories in public. The Tribunal does not accept the applicant was of any adverse interest to the Chinese authorities when he left China or that any of his actions since leaving China has bought him to their attention. The Tribunal does not accept the applicant’s relationship with his mother increases his risk of being of adverse attention to the authorities in China. Based on the country information, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if he attended an unregistered church in Fujian. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to China, now or in the foreseeable future. 

10. On the evidence before it, the Tribunal is not satisfied that 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 the applicant will suffer significant harm. Therefore the applicant does not satisfy the criteria under s.36(2)(aa).

11. 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 s.36(2)(aa).

12. As noted above, the Tribunal finds it does not have the power to consider the Refugee Convention criterion in s.36(2)(a). 

13. 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

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

Chris Thwaites
Member  10 July 2015