1413188 (Refugee)

[2015] AATA 3132

1413188 (Refugee) [2015] AATA 3132 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413188

COUNTRY OF REFERENCE:                  China

MEMBER:Bruce MacCarthy

DATE:2 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 02 July 2015 at 12:12pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of China (the PRC), applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] June 2014.

3. The applicants appeared before the Tribunal on 23 June 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

   PRIOR APPLICATIONS

4. The first 2 applicants (a husband and wife) arrived in Australia [in] March 2007, having been granted Sponsored Family Visitor visas [in] February 2007.  They applied for Protection visas [in] May 2007.  These applications were refused [in] May 2007, and that decision was subsequently affirmed by the Refugee Review Tribunal (differently constituted, and referred to in these reasons as “T1”) on 30 August 2007 (see RRT [file]).  An application to the Federal Magistrates Court (as it then was) was unsuccessful.  The applicants also applied to the Minister for consideration under the provisions of s.417 of the Act.  They were advised, in February 2009, that the Minister had decided not to exercise his power under that provision.  They told the Tribunal at the hearing that they have remained within the migration zone since May 2007.

5. The third-named applicant is the [child] of the other two.  [The child] was born in [2008], and has remained in the migration zone since then.  [The child] applied for a Protection visa on July 2012.  That application was refused [in] October 2012 and that decision was subsequently affirmed by the Refugee Review Tribunal (differently constituted, and referred to in these reasons as “T2”) on 19 September 2013 (see RRT [file]).  The third-named applicant also applied to the Minister for consideration under the provisions of s.417 of the Act, but the Minister decided not to exercise his power under that provision.

6. As each of the applicants has previously been refused a protection visa, the provisions of s.48A of the Act apply.  There is no evidence to suggest the Minister has made any determination under s.48B that s.48A does not apply to prevent a further application for a protection visa.  At the hearing, the first 2 applicants confirmed that there had been no such determination. 

7. Section 48A does not prevent a person from making a further application for a protection visa on complementary protection grounds where the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012 (see SZGIZ v Minister for Immigration and Citizenship).  As a result, the first 2 applicants were not prevented from making the application [in] October 2013.  The Tribunal may therefore consider their claims in the context of the complementary protection provisions but, although it appears that the delegate considered claims under the refugee criterion, the Tribunal considers itself to be unable to do so

8. As the third-named applicant’s first application was made and refused after 24 March 2012, [that applicant] was assessed under both the refugee criterion and the complementary protection criterion.  [The applicant] was therefore prevented, under the provisions of s.48A, from making make a further application for a protection visa on either ground.  In these circumstances, the Tribunal is unable to consider any claims by or on behalf of the third named applicant in [the child]’s own right, and that [the] application can only be considered on the basis of [the child’s membership of the] parents’ family unit.

   RELEVANT LAW

9. 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. For reasons stated above, refugee criterion is not relevant to the present application.

   The complementary protection criterion

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he may nevertheless meet the criteria for the grant of a protection visa if he 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 will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if he will be arbitrarily deprived of his 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.

12. 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

13. 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.

    Member of the same family unit

14. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.  Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.  Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include a spouse or child of a person.

    Credibility

15. When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, it is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

16. If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. In connection with the applications, the applicants have submitted photocopies of pages of their Chinese passports.  Given this evidence, and evidence in the Department’s records, the Tribunal finds that the applicants are citizens of the PRC.  Accordingly, the Tribunal will assess their claims as against that country.  There is no evidence to suggest that any of the applicants has any right to reside in any country other than the PRC.

18. In the present case, only the first named applicant (“the applicant”) has made claims in his own right.  His statement of claims is signed by him alone and that statement makes it clear that the claims relate specifically to him.  His wife, and [child], by submitting applications on application form 866D, made it clear that they do not have their own claims for protection but are applying as members of the applicant’s family unit.

19. The issue in this case is whether the applicant would face harm if he returned to China because of his religion.  He claims to have been arrested because of his involvement in a church in China, and that he will face further harm if he returned to China because of his past arrest and because he would continue to be involved in church activities.

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

21. The applicant’s claims in relation to the present application were set out in a written statement.  The statement, in Chinese, appears at folios 8-9 of the Department’s file and a certified translation appears at folios 10- 11 of that file.  The applicant and his wife gave oral evidence to the delegate at an interview [in] June 2014.  A CD recording of that interview is at folio 71 of that file and the Tribunal has listened to that recording.  The applicant has provided the Tribunal with a copy of the delegate’s decision record which contains the delegate’s summary of the oral evidence.  The Tribunal is satisfied that that summary presents a reasonable précis of the evidence given at the interview, though it omits some details.  The Tribunal discussed some of these details with the applicant at the hearing on 23 June 2015.

22. At the commencement of the hearing, the Tribunal sought to verify that it had understood the full nature of the applicant’s claims.  It read out the following summary of those claims:

    According to your statement, you were a Christian in China, and you were arrested because of your involvement in your church.

    Since then, you have suffered further persecution because you will not join the patriotic church.

    You fear that, if you return to China, you will gain be persecuted because of your past record of arrest and because you will again become involved in the activities of your church

    The Tribunal asked the applicant whether that was a fair summary of his situation and claims or whether there was anything he wished to change or anything he wished to add to those claims.  In response, he confirmed that the Tribunal’s summary encapsulated all his claims saying, “That’s the claim.”

23. At the commencement of the hearing, the Tribunal explained relevant procedures.  In particular, it explained the provisions of s.424AA of the Act and of the applicant’s right to seek further time if asked to comment on or respond to information discussed under those provisions.  During the hearing, the Tribunal discussed a number of matters with the applicant in accordance with those provisions.  These matters are set out below.  On each occasion, having given the applicant particulars of the relevant information, explained its relevance and the consequences of the information being relied upon, the Tribunal invited the applicant to comment on or respond to the information and reminded him of his right to seek additional time in which to do so.  On each occasion, the applicant elected to respond immediately and did not seek more time.

    Alleged events in China

24. The applicant claims to have experienced persecution in China because of his religion.  In particular, he claims to have been arrested in October 2006 and in January 2007.  However, he has provided inconsistent evidence about these alleged events at various times.

25. In his original statement of claims, submitted to the Department in support of his application in May 2007, he said that he had been arrested on a Saturday evening in October 2006.  He said that, some policemen had come in and taken those attending a church gathering to the police station.  He had been asked to write a report about the leader of the church and the church’s activities.  The he said that, despite being told that his church was not allowed to exist in China he organised his members “to meet on Saturday evening at another place.”    This statement suggested that he was not held for very long because he was able to organise a meeting on the following Saturday.”  The applicant made no mention, on that occasion, of having been injured in any way.

26. When giving evidence to the delegate in June 2014, he elaborated on his claims regarding the alleged events in October 2006.  He said that the date of the alleged arrest was [in] October 2006 adding that it was [number] days before China’s National Day.  He said that, on that occasion he had been held in detention for a week.  Again, on that occasion, he made no claim that he had been injured in any way. 

27. At the hearing, he said that the date of the alleged arrest was [in] October 2006, but said on this occasion that that was [number] days before the “mid-Autumn Festival.”  He said that, he had been seriously injured on that occasion, and showed the Tribunal a [scar].

28. The Tribunal discussed these contradictions with the applicant at the hearing, in accordance with the provisions of s.424AA of the Act.  The Tribunal pointed out that there was a contradiction between his claim that [date] October was [number] days before China’s National Day and his present claim that it was [number] days before the mid-Autumn Festival.  He attributed this to a translation error when he gave evidence to the delegate.  The Tribunal accepts this, given that [date] October was [number] days before the mid-Autumn Festival in 2006, and given that the National Day was 1 October.

29. The Tribunal also pointed out that, contrary to his assertion in his original application, [date] October 2006 was not a Saturday.  He was not able to explain this contradiction to the Tribunal’s satisfaction. 

30. The Tribunal also drew the applicant’s attention to the contradictions regarding the circumstances of the alleged arrest.  As noted above, his original statement of claims implied that he was only held for relatively brief period and made no reference to any injury.  He later told the delegate that he was held for a week but again mention no injury.  However at the hearing, he said that he was injured to the extent that he had a significant [scar].

31. When the Tribunal discussed these contradictions with him, he said that, when he first made his application he had not realised he needed to put in a lot of detail.  The Tribunal has considered this but is of the view that, if the applicant had been detained for a week and mistreated to the extent that he had a large [scar] that this would have been mentioned in his original statement of claims.

32. For these reasons, the Tribunal does not accept that the applicant was arrested on [in] October 2006 or at any other time in that month.  It does not accept that the [scar] was the result of any interaction with Chinese authorities at that time.

33. The applicant has consistently claimed that he was arrested for a second time [in] January 2007.  He claims that he was able to escape from the police and avoid further detention.  In oral evidence to the delegate, he said that it was after that alleged incident that his [sibling] invited him to travel to Australia.  At the hearing, he said that his [sibling] had travelled to China around that time and had seen his condition and had then invited him to come to Australia.  The Tribunal asked him how long after the date of his alleged arrest he had decided to take steps to try to come to Australia.  In response, he said that it was one or two months after that alleged arrest. 

34. However, as discussed with him in accordance with the provisions of s.424AA of the Act, the Tribunal had information obtained from the Department’s file relating to his and his wife’s application is for visitor visas to come to Australia in early 2007.  That information showed that he and his wife had signed their applications [in] January 2007 [though the forms themselves bear the date [date] January 2006, no doubt as the result of a slip of the pen by the person completing the forms in English on their behalf].  Moreover, a statutory declaration by the applicant’s [relative], prepared in connection with the applications, is dated [in] January 2007.  Another document, a notarial certificate attesting to the relationship between the applicant and his [sibling and relative] in Australia, is dated in November 2006, as is a supporting letter issued by the applicant’s employer stating that the applicant intended to travel to Australia for a three-month holiday.  When the Tribunal drew this information to the applicant’s attention, he said only that he had been mistreated in 2006 and that was the reason for his trip to Australia.

35. The Tribunal has considered this response, but does not accept it.  His oral evidence to the delegate clearly was to the effect that the decision to come to Australia followed the alleged arrest in January 2007 and his oral evidence to the Tribunal was, up until the time the discrepancy was drawn to his attention, unequivocally that it was the arrest in 2007 and the subsequent injury to his back that caused his [sibling] to invite him to come to Australia.  The fact that the applicant was clearly intending to travel to Australia as early as November 2006 leads the Tribunal to reject the claim that that decision was made as a result of the alleged arrest in January 2007.

36. Moreover, the Tribunal finds the applicant’s account of the events which he said followed the alleged arrest implausible. 

37. Though he made no claims in his original application that he had been injured during the alleged escape, the applicant now claims that, in jumping out of the vehicle in which police were transporting him to a place of detention, he injured his back so severely that he required hospitalisation.  At the hearing, he told the Tribunal that he was so severely injured that he could not even run to the other side of the road.  He said that he was sitting on the side of the road when a person from his work unit came past driving a [vehicle].  That person, he said, phoned someone on his behalf and that other person came and took him to a hospital some distance away.

1. If the applicant had been so severely injured as to be unable to run across the road, the Tribunal does not accept that the officials transporting him would have been unable to stop the vehicle and take him back into custody. 

2. The Tribunal also discussed with the applicant the proposition that, if he had been under care in a hospital, it would have been relatively easy for the authorities to locate him.  In response to this, he said that the hospital was some distance away from where he had been arrested and where he lived and the police were from his local area so there was no reason to expect that they would have made inquiries so far from his local area.  The Tribunal accepts that this explanation is plausible, but it does not overcome the implausibility of him being able to avoid recapture at the point when he jumped out of the vehicle.

3. The applicant has also given inconsistent accounts of the amount of time he allegedly spent in hospital and of his movements after the alleged arrest.  In his initial statement of claims, he said that after he escaped he could not live at home so he had been living at a friend’s home near his village.  He made no mention of any injury or being in hospital.  However, when giving evidence to T2 in connection with his [child]’s application, he raised the claim for the first time that he had been injured and said that he spent a month in hospital.  When he gave oral evidence to the Tribunal he said that he had been in hospital for a week before leaving hospital and returning to his home where he sought treatment with a local doctor.  He said he stayed at home until he and his wife came to Australia. 

4. When the Tribunal discussed this with him in accordance with the provisions of s.424AA of the Act, the applicant said that there was no inconsistency.  He said that, as far as he was concerned anything in or near his own village was “home.”  The Tribunal has considered this explanation but it does not accept it.  It was very clear in his earlier evidence that he spoke about living at his own home after the alleged incident.

5. Given the matters discussed above regarding the alleged arrest in January 2007 and the events which allegedly followed, and given that the Tribunal has previously concluded that the applicant was not arrested in October 2006, the Tribunal does not accept that the applicant was arrested in January 2007.  It follows from this that it does not accept that he escaped from custody and was injured in the process.  It finds that any injuries from which the applicant has suffered in the past were unrelated to any alleged arrest or mistreatment by Chinese authorities.

6. Therefore, the Tribunal finds the applicant not to be a credible witness.

7. Given this finding and having concluded that the applicant was not arrested by Chinese authorities on either of the occasions on which he claims to have been arrested because of an alleged involvement in a Christian church, the Tribunal finds that the applicant was not involved in the activities of a Christian church in China.

   Applications made in Australia

8. As discussed with the applicant at the hearing in accordance with the provisions of s.424AA of the Act, when given the opportunity to give evidence before T1 in 2007, he did not attend the scheduled hearing.  Although his [child] was born in 2008, and all matters in connection with the original application in 2007 were finally determined in 2009, no application was made on behalf of his [child] until 2012.  The Tribunal pointed out that this was relevant because it suggested that he was not really serious in pursuing claims for protection but was trying to stretch out the amount of time he and the family could stay in Australia.  The Tribunal could conclude that they were trying to gain time in order to learn about Christianity so that they could create the impression that they were genuine Christians.

9. In response, the applicant said that they had not attended the hearing before T1 in 2007 because they could not find the location of the Tribunal and had no one to help them.  He said that, after their [child] was born, they did not realise immediately that they could apply on [the child’s] behalf.  It was only sometime later that they realised they had the option of doing this.  The Tribunal accepts the latter point but does not accept that the applicant failed to attend the hearing in 2007 because he could not find the Tribunal’s premises.

10. If that were the case, the Tribunal would have expected the applicant to have made contact with the Tribunal to explain that he could not find the place and seek a rescheduled hearing.  The applicant said that he had no one who could help him to do this.  However, he confirmed that, at the time he was living with his [sibling] who was an Australian citizen.  The Tribunal said that it would expect in those circumstances that his [sibling] could have assisted him in that regard.  He said that his [sibling] still cannot speak English. 

11. The Tribunal finds it difficult to believe that his [sibling] could live here for a number of years and become an Australian citizen without learning any English but, even if this were the case, the Tribunal does not accept that his [sibling] would not have been able to help him find someone who could assist him in locating the Tribunal for the purposes of the hearing or contacting it if he had been unable to attend. 

12. In all the circumstances, the Tribunal concludes that the applicant chose not to attend the hearing before T1 in 2007.  In these circumstances, the Tribunal concludes that the applicant did not have a genuine fear of harm in China at the time he came to Australia.

    The applicant’s claimed Christian faith

13. The Tribunal’s concerns about the applicant’s credibility discussed above are supported by his apparent lack of knowledge about matters relating to his claims about his Christian faith.  The Tribunal is conscious of the risk involved in testing claims of a real risk of harm for reasons of a religious faith by testing the applicant’s detailed knowledge of that faith.  For this reason, at the hearing, the Tribunal asked the applicant fairly broad questions about his faith. 

14. As discussed with the applicant at the hearing, he provided a copy of the delegate’s decision record to the Tribunal.  In that decision record, reference was made to the applicant’s responses to questions about his religious faith.  The delegate accepted that the applicant and his wife were Christians who had attended some religious services in Australia, and that they had received “basic lessons about Christianity.”  However, the delegate was not satisfied that they were “devout” Christians and said there was “no indication that they have developed a strong commitment to this faith” or that they had tried to gain further knowledge.

15. At the hearing, when asked what he believed as a Christian, he said simply that he believed in God.  When the Tribunal pointed out that adherents of many religions believe in God and that it was looking for a response is which would indicate that the applicant held beliefs essentially Christian in nature, he said he did not know how to answer that question.  He said he simply attended church from time to time and listened to what was preached.  The Tribunal would have expected a person who claimed to have been a Christian for ten years to have been able to refer to at least some concepts central to Christianity such as Jesus being the Son of God, the crucifixion and resurrection, the virgin birth, the concept of forgiveness of sins, and a belief in eternal life, even if not in great detail.  These are basic elements of Christian belief, and they are concepts which even many non-Christians would recognise as being “Christian beliefs”.

16. Although the applicant said he sometimes read the Bible, he did not appear to be aware that there were 2 main parts of the Bible, namely the Old and New Testaments, though he volunteered that he was aware that there was a book called Genesis in the Bible.  He was unable to tell the Tribunal what the fifth book of the New Testament was about.  The Tribunal would expect a person who claimed to have been a Christian for ten years and who read the Bible (even if only “sometimes”) to be aware of the broad nature of the contents of that book.  He was unable to recount any of the stories told by Jesus, as recorded in the Gospels.  Again, the Tribunal would have expected a person who claimed to have been a Christian for ten years and who read the Bible and sometimes attended church services to be at least able to give a general outline of at least one of stories told by Jesus. 

17. The applicant attributed his inability to answer these questions to his poor memory.  The Tribunal accepts that many genuine Christians may be unable to answer detailed questions about the contents of the Bible, but considers its questions to be of the kind that a person, who had been a Christian for many years and who sometimes attended church services and sometimes read the Bible, could answer in a general way, without particular detail.

18. The applicant said that, after arriving in Australia, he first attended an Anglican church in [one suburb] and later attended a Protestant church in [a different suburb].  He estimated that, in all, he would have attended church on “20 something occasions,” saying that he could not attend church every week for various reasons.  He showed the Tribunal a copy of the church notice from a church in [the second suburb], as evidence that he had attended church the previous Sunday.

19. The Tribunal accepts that the applicant has attended church services from time to time in Australia and that, in particular, he attended church on the Sunday before the hearing.  However, it is of the view that attendance at only 20 to 30 church services over a period of more than 8 years is not an indication that the applicant is a genuine Christian, particularly given the Tribunal’s credibility finding above, its conclusions that he was not involved in a Christian Church in China and his poor responses to the Tribunal’s general questions even the most basic ones, regarding his faith and his knowledge of the Bible.

20. The applicant told the Tribunal that he had never been baptised and that his wife and [child] had not been baptised.  He said that a claim that he was baptised Christian, in his original statement of claims was not one made with his authorisation.  He said that he could not read English and had not realised that claim was in that document.

21. In all the circumstances, the Tribunal finds that the applicant is not a genuine Christian and that, if he were to return to China, he would have no reason to participate in church services in that country.

    Other claims

22. In his original statement of claims, the applicant made statements suggesting that he has a political opinion against the Chinese government because of their attitude to religion.  Having disbelieved the applicant’s claims that he was arrested, and given its earlier conclusions regarding the applicant’s religious faith, the Tribunal does not accept that the applicant has any genuine anti-government political opinion in any way related to religion.

23. Towards the end of the hearing, the applicant’s wife made claims on behalf of her [child] saying that, if [the child] were to return to China [the child] would not be registered as [that child] was a second child and would thus face discrimination.  The applicant acknowledged that this problem could be overcome by the payment of a social compensation fee but said they could not afford that fee.  The applicant and his wife made no claim that they themselves would face harm if they did not pay the fee and the Tribunal is not aware  . 

24. As noted above, the applicant’s [child]’s claims have already been determined in response to [the child’s] own application in 2012.  [The child’s] claims, including claims relating to [being] a second child were considered under both the refugee criterion and the complementary protection criterion.  In these circumstances, the Tribunal has not considered this claim in connection with the present application.

    Conclusions

25. Given its conclusions regarding the alleged arrests in 2006 and 2007, the Tribunal does not accept that the applicant was ever involved in a Christian church in China.  The Tribunal further finds that the decision by the applicant and his wife to travel to Australia was not motivated by any fear of mistreatment by Chinese authorities.  The

26. It does not accept that the applicant had knowledge of Christianity when he arrived in Australia.  While the Tribunal accepts that he has gained some knowledge of Christianity since arriving in Australia, it is satisfied that he only did so in order to overcome a lack of knowledge at the time he arrived in Australia.

27. Given these conclusions, the Tribunal does not accept that the applicant has any genuine commitment to Christianity.  It therefore finds that, were he to return to China in the reasonably foreseeable future, there would be no reason for him and his family to involve themselves in the activities of a Christian church of any kind.  It follows from this that the Tribunal has no reason to believe he would face any harm in China.

28. As the applicant has raised no claims other than those discussed above, there are no 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.  The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

29. The other two applicants have claimed only on the basis of their membership of the family unit of the applicant.  Given the finding in the previous paragraph, there is no suggestion that any of the applicants 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, they do not satisfy the criterion in s.36(2).  As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

30. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Bruce MacCarthy
    Member