1414259 (Refugee)

[2015] AATA 3805

1414259 (Refugee) [2015] AATA 3805 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414259

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:30 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2015 at 5:32pm

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

SUMMARY

1. The applicant is a [age] year old male who claims to be a citizen of the Peoples’ Republic of China (China). He seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions.

2. He arrived in Australia [in] August 2013. He remained in Australia, and then applied to the Department of Immigration for the Protection visa [in] February 2014. The delegate refused to grant the visa [in] July 2014. This is an application for review of that decision. The relevant law is set out in Annexure A. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report PRC, 3 March 2015 (“the DFAT report”), and DFAT Thematic Report Unregistered Religious Organisations and Other Groups in the People’s Republic of China (“the DFAT Thematic report”), both of which the Tribunal is required to consider.

3. The applicant was not represented in relation to the initial application before the Department nor in relation to the review.

4. The Tribunal has before it the Department’s file and the Tribunal’s file relating to the applicant. The Departmental file contains documents including his protection visa application forms, the applicant’s statement (translated into English), copies of identity and supporting documents, a copy of the recording of the interview with the delegate [in] June 2014 to which the Tribunal has listened, and a copy of the delegate’s decision record (which refers to evidence given at interview as well as country information). References to what occurred at the interview are sourced from the delegate’s decision record provided to the Tribunal by the applicant unless otherwise specified.

5. The Tribunal file contains a copy of the delegate’s decision record provided to the Tribunal by the applicant with the application for review. No further written submissions or documents were provided before the hearing. At the hearing the applicant provided some documents (including pamphlets and photos).

6. The applicant appeared before the Tribunal on 25 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. 

7. The applicant’s claims, sourced from his protection visa application form, statement, evidence at interview as set out in the delegate’s decision record provided to the Tribunal by the applicant, and his evidence at hearing, can be summarised as follows:

   ·     The applicant was born and grew up in a rural area in Fujian Province. He speaks, reads and writes in Mandarin. His ethnicity is Han and his religion is Yiguan Dao. He was married [in] 2008 in Fujian. He has a child.

   ·     The applicant claimed that his uncle and parents followed Yiguan Dao (he told the Tribunal that his [sibling] and [spouse] also follow it). They had a shrine, a small Temple at home. The local government would not allow them to set up any temples or shrines.

   ·     The authorities often came to their home to disturb their religious activities. The security squad searched their house and confiscated devices and tools to conduct and seek Tao activities. The authorities claimed that they were a cult group and organised cult activities in their home.

   ·     He was [occupation] and when he was not at [work] he would participate in Tao activities. He and his uncle also helped other counties set up temples in their homes. He wrote many diaries and reflections in his pursuit of seeking Tao and he also published many experiences to followers on the internet. His sharing of experiences was discovered when the police checked his computer (when he wasn’t there). His uncle was interrogated, and after the applicant returned home, the police found him and asked him questions about the Yiguan Dao that he discussed with others on the internet. They gave him a warning and his entries were deleted by the government.

   ·     He and his uncle continued their efforts to set up more temples. They set up [home] temples and one printing house specialising in printing Yiguan Dao publications. They also purchased Yiguan Dao books from [Country 1] to distribute among the followers at other temples.

   ·     In 2012 they invited a Taoist from overseas to give them lectures, but it was found out by the government, and he was expelled from China by the government. They arrested the uncle on the spot and detained him for one week. He claims he was lucky he was at [work] at this time or he would surely have been doomed.

   ·     In August 2013 his parents were arrested for organising a Tao ritual at home. This was four days before his ship left and he wanted to return but was told to get on ship because police were searching for the participants, and the source of the Yiguan Dao books, and there would be more peril if he returned home. He therefore boarded the ship and landed in Australia [in] August 2013.

   ·     He claimed that, once again, after he was in Australia, his uncle was detained due to the applicant having sent preaching information to his uncle.

   ·     He wants to be a preacher and make Yiguan Dao known and flourishing.  He attends Yiguan Dao activities in Australia.

   ·     The applicant stated at interview that some people from [Country 1] taught his parents Yiguan Dao when he was a child sometime in the 1990s, and he claimed that he has been practising Yiguan Dao since he was a child.

   ·     Concerning the number of times the authorities searched his house, he said at interview that the security squad had searched his house four or five times a year, and had done so since the year 2000.

   ·     The applicant told the Tribunal that, if he returns, he will be arrested because he is a believer, so he will be persecuted. The Tribunal put to the applicant that according to his claims, the authorities have known he is involved in Yiguan Dao for many years now; he agreed. The Tribunal noted that it did not see the difference as to why he would suffer harm such as being hurt or killed now, when he did not before. The applicant did not provide a clear response, instead saying he really enjoys religious freedom in Australia.

   ·     The applicant claimed at hearing that the Chinese government often came to the home to harass the family; his mother was tired physically and mentally. She passed away because she could no longer endure the constant questioning and harassment from the authorities.

8. Further relevant information and evidence is set out below.

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

   Country of reference

9. The applicant’s passport was [details deleted]. The applicant produced it to the Tribunal at hearing. The Tribunal accepts that the applicant is a Chinese national, and is not a citizen of, or national of, any other country. The Tribunal finds that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is China.

   Credibility

10. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

11. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

12. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

13. Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s credibility and the veracity of his claims made on behalf of the applicant. The Tribunal does not accept that he is a witness of truth concerning matters central to, and related to, claims of past persecution, his family’s situation, and future fears and concerns. The Tribunal has made the adverse credibility finding for the reasons set out below.

    Inconsistencies

14. The Tribunal was concerned about the applicant’s inconsistencies between his evidence in his statement and his evidence to the Tribunal about specific events leading to past harm. For example:

15. Firstly, the applicant claimed in his statement that he had written many diaries and reflections in his pursuit of seeking Tao, and he had also published many experiences with other followers on the internet. The police came to their home and checked his computer; when the applicant returned home the police asked him questions about Yiguan Dao that he had discussed with others on the internet. His sharing of experiences with other followers via the internet was deleted by the government, and he was given a warning.

16. However, when the Tribunal asked the applicant to discuss his encounter with the police, he did not suggest that the police asked him any questions about his postings on the internet. Instead, he claimed that the police said to him that his family is engaging in illegal cult activities which is badly influencing the social order.  If it continues they will have to place them in prison.  They will be sentenced if they organise a gathering of people.

17. He claimed that the police did not say anything else, and that this was the only conversation he had with the police. It was only after the Tribunal pointed out to the applicant that the conversation with the police would have been very different if his statement was true, that he changed his evidence about what the police said to him. The Tribunal’s concerns were heightened because even when he changed his evidence, it was still inconsistent with his statement. The Tribunal asked what he actually did when using his computer, and he said initially that he just downloaded things from the internet and saved it on his files on his computer. The Tribunal put to him that this would mean that he was not then sharing experiences via the internet. He then changed his evidence and said he was sharing his experiences on the internet via emails (QQ) When the Tribunal put to the applicant its concerns about his changing evidence he said that the Tribunal had not asked him about his sharing of experiences on the internet. The Tribunal noted it had asked him about his conversation with the police, and he had omitted any reference to being interrogated about his online sharing until the Tribunal noted his inconsistencies.

18. Secondly, in his statement, the applicant claimed that his uncle was arrested (in June 2012[1]) when he and his uncle invited a Taoist from overseas to give them lectures. This was discovered by the government, the Taoist was expelled out of China and the uncle was arrested on the spot and detained for 1 week. Luckily the applicant was at [work] when this happened otherwise he would not have been able to escape and would have been surely doomed.

    [1] He provided the date at interview as set out in the delegate’s decision record provided to the Tribunal by the applicant.

19. However, when the Tribunal asked the applicant why his uncle was arrested in June 2012, he said it was just for for spreading the religion, talking about how many types of Yiguan Dao, the principles of Yiguan Dao, it is not accepted in China. The applicant confirmed that he was only arrested once in 2012. The Tribunal noted that this was inconsistent with his statement, and the applicant did not engage with the Tribunal’s concerns. Instead he said that the most severe occasion was when arrested and detained for one week. The Tribunal repeated that his evidence was different and he responded that yes his uncle was arrested for that.

20. The Tribunal considers that the applicant’s inconsistencies with his statement, and then his changing evidence once the Tribunal pointed out the inconsistencies, undermine his credibility, claims and his evidence.

21. Thirdly, the Tribunal was concerned that the applicant’s knowledge of Yiguan Dao as expressed at the delegate’s interview was inconsistent with his claims that: he had been involved with Yiguan Dao since he was a child in the 1990s; that he not only practiced his religion, he was actively going out to preach the religion, convert others, he had written and published many diaries and reflections as well as his experiences (all of which was deleted by the government) online; he was involved in setting up other temples and printing house and purchasing Yiguan Dao books from [Country 1] to distribute among the followers of other temples; organising lecturers to come to China from overseas; he claimed to have accessed online and sent to his uncle preaching correspondence; and he accidentally discovered a temple in [Australia] which he had been attending since October 2013; and he had been initiated into the religion. In the circumstances, the Tribunal considers that the applicant’s knowledge would have been greater than that expressed at the delegate’s interview. At hearing, the Tribunal put to the applicant his responses to the delegate at interview (as set out in the delegate’s decision record provided to the Tribunal by the applicant):

    The applicant was asked a series of Yiguan Dao questions. The applicant provided a vague explanation of what Yiguan Dao was and could only name four of the five religions Yiguan Dao claims to unite. The applicant was unaware of the names of any Yiguan Dao Scriptures or books and could not name any of the five rituals common to Yiguan Dao gatherings. The applicant was then advised of the name of the first ritual performed at an Yiguan Dao gathering and was asked what happened at this ritual, however the applicant could not explain any details of this ritual. The applicant was asked whether he could name the principles of Yiguan Dao, however the applicant could only name seven of the 21 principles….. The applicant was then asked what the initiation ritual was known as, however the applicant was unaware of what the ritual was called. The applicant was then asked who carries out this ceremony but the applicant was unaware of who perform the initiation ritual. The applicant was also unaware of what vows were associated with joining Yiguan Dao.[2]

    [2] As set out on pages 6 and 8 of the delegate's decision record provided to the Tribunal by the applicant; references to country information are from page 3 of that decision record.

22. When the Tribunal asked the applicant if he would like to make any comment in this regard, he said no. The Tribunal considers that his inability to provide such information, as well as his inability to explain his answers at the delegate’s interview, undermines his claims of involvement with Yiguan Dao in China, and that he has been genuinely involved with Yiguan Dao in Australia.

23. The Tribunal’s concerns about the applicant’s claims were heightened when the Tribunal asked the applicant what he would say to people who he would randomly approach, in their homes, when he was trying to preach and convert them to Yiguan Dao, (noting that his religion is considered an illegal cult). He said words to the effect of “do the heavenly gesture and open the heavenly eye; we human beings are with spirit and if we get dao we can get our name registered in heaven. We can avoid reincarnation and we can go back and ascend to highest heaven”. The Tribunal put to the applicant that this did not appear to be a persuasive manner to convince someone to join an illegal cult. He continued by saying words to the effect of “the dao in Yiguan Dao has multiple meaning and significance and it is the only way to get into heaven”. The Tribunal asked why a person he had just met believe what he was saying. In response he said because they have 21 objectives.

24. The Tribunal put to the applicant that it seemed that he has learned some information about Yiguan Dao and was conveying this to the Tribunal; but it seemed highly unlikely that this is what he would say if he was knocking on random people’s doors to convince them to join an illegal religion. The applicant continued to say such as “we would tell them the benefits of dao, and we help others”.

25. Although the applicant had some knowledge of Yiguan Dao and its concepts, it did not find it credible that he travelled for hundreds of kilometres, knocking on random people’s doors, convincing them to convert to the religion in which he claims to believe.

    Not credible evidence

26. The Tribunal was concerned that, on a number of occasions, the applicant gave evidence which was not credible and/or inconsistent with country information, which the Tribunal considered undermined his credibility.

27. Firstly, the Tribunal noted that, according to his statement, he and his uncle had already been interrogated about online postings and his computer had been searched (November 2011), he had been warned by the police, and his uncle had already been arrested in June 2012, yet he claims to have sent information (unavailable in China) to his uncle via the internet after his arrival in Australia (August 2013). The Tribunal noted that he claimed that his uncle was then arrested [in October] as a result of their correspondence.

28. The Tribunal put to the applicant that, having regard to the adverse attention his family already had received about this illegal religion, it did not understand why he had taken such a risk and sent such sensitive material to his uncle. In response, the applicant said it is his religion. The Tribunal does not consider it credible that the applicant sent such material via the internet given the claimed past problems, and given his parents had recently been arrested and given his uncle had already been arrested. 

29. Thirdly, the Tribunal was further concerned because, when it asked the applicant what he had been doing in Australia, he referred to his work (he commenced casual [work] a few weeks after he arrived). When the Tribunal asked what else he had been doing in Australia, he then said working as [occupation]. When the Tribunal asked if he had been doing anything else, for example such as studying, he said no. When the Tribunal asked if he has been doing anything else in Australia apart from work, he said no. The Tribunal was concerned that the applicant had failed to mention that he had been practising his religion.

1. He then appeared to remember that he had not mentioned his religion, and said that he also has been practising his religion. The Tribunal asked why he did not say this when it was asking him about what he had been doing in Australia, and he said he thought the Tribunal was only referring to “important… work”. The Tribunal noted it had specifically mentioned other things apart from work, such a study, and he had still not mentioned his religion. In response he said he didn’t understand, however he could not explain why. The Tribunal considers that, if the applicant was a genuine Yiguan Dao practitioner, he would have told the Tribunal that he spent his time practising Yiguan Dao, in Australia, when asked what he had been doing in Australia.

2. Fourthly, the Tribunal was concerned with the applicant’s evidence concerning his claimed practice of Yiguan Dao in his everyday life. He claimed that he attends class and temple on Sundays. He is too busy with work to go any other day. At the temple he helps with the religion’s requirements (be kind-hearted, help others endure adversity, and volunteer). When the Tribunal asked to be more specific about what he does in the temple, he said he said helps in the kitchen (washing vegetables, cooking the rice, cleaning the floor and he helps seniors if they can’t do something by themselves for example: their food). The applicant also said that he applies Yiguan Dao in his daily life. The Tribunal was concerned however with the vague nature of the applicant’s evidence concerning how he applies Yiguan Dao in his daily life.

3. When the Tribunal asked how the applicant applied his religion in his everyday life, he said he does kind deeds. When the Tribunal asked to explain in more detail what he does, he said words to the effect of “just by not making any mistake, by actually cultivating a virtue”. The Tribunal asked if this was the only practical example he could give of how he applies his religion in his daily life, and he said “help others”, “for example if someone can’t cross the road, they need help”. When the Tribunal suggested that many people would assist a person to cross the road if they were having trouble, even if they did not practice Yiguan Dao, he responded that he is not good at expressing himself. The Tribunal put to the applicant that he appeared to be providing vague and theoretical information about Yiguan Dao, as opposed to giving examples of how he applies it in real life. The applicant did not respond, the Tribunal repeated its question. He then said that he follows this but he thinks it is not possible for him to show it every day.

4. The Tribunal considers that if the applicant had been an Yiguan Dao follower since he was a child, and if, as he claimed, he applied Yiguan Dao in his daily life, he would have been able to provide further details about how he applied his religion in his everyday life. The Tribunal does not accept that the applicant cannot “express himself” well, because, for example, after the break, he said that he wanted to tell the Tribunal story, which he told at length, and expressed eloquently (which he said was a story of the good deed of a person who was a Yiguan Dao follower).

   The applicant’s delay in claiming asylum

5. The Tribunal was concerned about the applicant’s delay in claiming asylum. As set out in his application form, he arrived in Australia [in] August 2013, yet he did not lodge his protection visa application until [date] February 2014[3]. The applicant claimed that he fled to Australia because his parents were arrested and he would be in danger if he returned home. He claimed that he started at the Temple in October 2013. He had told his story at the Temple and they helped him. The Tribunal put to the applicant that, if he had told his story to people at the Temple in October 2013, it did not understand why he delayed in lodging his protection visa application until February 2014. The Tribunal noted that he claims that people who practice Yiguan Dao religion in China are subjected to persecution. In that case, it would have thought he would have discussed with fellow Yiguan Dao practitioners how he could avoid returning to China. The applicant then said that yes, they told him he could lodge this application. The Tribunal asked why he didn’t lodge until February 2014 and he said he didn’t know much at the time and he was in fear, he didn’t know they could help him and didn’t ask them to help him. The Tribunal put to the applicant that his claim that he didn’t know they could help him seemed inconsistent with his earlier evidence to the Tribunal that a large part of the religion is about helping people. In response the applicant said that, at the time, he didn’t know about it. The Tribunal has considered the applicant’s responses however it does not find them to be satisfactory. The Tribunal also notes that he had provided an explanation in his statement that when he arrived in Australia he made a temporary decision to stay, and he planned to wait until the storm at home had passed, and he would return to China, but the situation did not improve. However, the applicant did not provide this explanation to the Tribunal at hearing, and the Tribunal does not give it any weight.

   [3] As set out in the delegate's decision record provided to the Tribunal by the applicant.

6. The Tribunal was further concerned as to why the applicant did not seek to remain in Australia earlier than his trip in August 2013. He had claimed that his religion was considered to be an evil cult. He told the Tribunal that there was often harassment from the authorities. He claimed that he had been interrogated and subjected to a warning from the authorities (November 2011), and his uncle had been arrested in June 2012. As set out the delegate’s decision record provided to the Tribunal by the applicant, the first time the applicant arrived in Australia was in July 2009, holding a [temporary] visa. He made a further [entries] into Australia, including his last arrival [in] August 2013. Having regard to the circumstances back home, the Tribunal asked the applicant why he did not seek to remain earlier. He said at the time he was [occupation] and he was just doing his job, he would not stay very long, and he didn’t have legal knowledge. The Tribunal has considered this response, however it does not find it persuasive. The Tribunal considers that if the applicant’s circumstances were as claimed, and if he had so many visits to Australia, he would have investigated his options in for remaining in Australia previously.

7. For the above reasons, the Tribunal does not accept that the applicant is a credible witness.

   Other matters

8. The Tribunal has considered any possible explanations for the difficulties with the applicant's evidence. The Tribunal accepts that the applicant could have been nervous throughout the process, however the Tribunal does not accept that this can account for the significant difficulties in his evidence.

   Corroborative evidence

9. The applicant produced a letter from [an organisation] dated [in] December 2013. It indicates that he is a member of the Institute since October 2013; he has been a supportive member and actively participated in volunteering work of the organisation, he has entered some training courses and his learning attitude is good. He helps out with the activities as a volunteer and is good in applying what he was taught so far in his everyday life. He works hard to clean the environment of the temple. The Tribunal had concerns about this letter, and noted at hearing that the letter did not refer to Yiguan Dao, nor did it indicate that the applicant has been practising Yiguan Dao. Even if the Tribunal is prepared to give the applicant the benefit of the doubt and accept that this letter indicates that he has been attending a Yiguan Dao temple in Australia between October and December 2013, during which time he has undertaken some courses and volunteer work, the Tribunal noted that the letter only referred to his activities up to December 2013. In response, the applicant said that he has produced some photos. The Tribunal considered the photos, which indicated that the applicant had attended a ritual(s) at the temple. The applicant produced two pamphlets (which were not translated, and he said did not need to be translated) which he said were indicative that he had been to the temple and obtained pamphlets. The Tribunal put to the applicant that these photos/documents did not support that he had been regularly attending the temple as a genuine Yiguan Dao member. The Tribunal does not consider that this evidence supports his claims that he is a committed Yiguan Dao attendee.

10. The Tribunal accepts that the applicant has given some consistent evidence throughout the process, however having regard to the concerns above, the Tribunal is not satisfied that this is sufficient to overcome the Tribunal’s concerns.

    Knowledge

11. The Tribunal is prepared to accept that the applicant has some knowledge in relation to Yiguan Dao, however the Tribunal does not consider that the applicant’s knowledge of overcomes the Tribunal’s concerns with his evidence referred to above.

    Credibility summary

12. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility, as discussed above, lead the Tribunal to conclude that the applicant is not a witness of truth and the accounts of religious persecution, and his fears for the future, on which his protection claims are based, is false.

    Findings on the applicant’s claims

    China

13. On the basis of the adverse credibility finding, the Tribunal does not accept the applicant’s claims in relation to religion or persecution. The Tribunal does not accept that that there was an Yiguan Dao shrine or Temple in his home, that he and his family ever practised or were involved with or preached Yiguan Dao, that his parents or uncle were ever arrested and detained, that he or his uncle were interrogated or arrested, that he ever shared any experiences or posted online or wrote memoirs or diaries or reflections or discussed Yiguan Dao in China with anyone, nor that he preached to anyone. The Tribunal does not accept that there has been any reason for the applicant or any of his family members to come to the adverse attention of the authorities, whether for reasons of Yiguan Dao or for any other reason. The Tribunal does not accept that the applicant came to Australia because of fear of persecution.

14. Whilst the Tribunal is prepared to accept that the applicant’s mother may have passed away as he claimed at hearing, it does not accept that this occurred as a result of persecution from the Chinese authorities because of her religion. The Tribunal accepts that the applicant will return to China and reside with his wife and child, father and [sibling] in the family home, as he did before he left.

    Activities in Australia

15. The applicant asserted that he had sent materials about Yiguan Dao back to his uncle after having arrived in Australia. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept this assertion.

16. The applicant claimed that he joined the temple in Australia in October 2013, that he was baptised/initiated, and he wants to continue to be part of this Temple. As noted above, he provided a letter from the temple indicating that he attended for three months in 2013. He also produced two pamphlets which he said he obtained from the temple, and some photographs which he said depicted him participating in rituals at the temple (he said there were no dates on the photos). He produced a card dated [in] December 2013 as evidence of his “baptism”. The card provided the name of important people in the religion; the Tribunal was concerned that the applicant provided a name for the patriarch of the religion which was inconsistent with the name recorded on the card.

17. The applicant claims to have attended the temple every Sunday while in Australia since October 2013. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept the applicant’s evidence as to the amount of time he has spent at temple in Australia. The Tribunal has carefully considered the letter which indicated that the applicant had attended temple for three months in 2013 and the Tribunal is prepared to accept that the applicant had attended temple for three months in late 2013. Similarly, the Tribunal is prepared to accept the applicant has undertaken a “baptism”/initiation ritual and other rituals, and assisted at the temple, on occasions since 2013.

18. The Tribunal has considered the reasons why the applicant has undertaken these activities in Australia.

19. The Tribunal does not accept that the applicant was initiated, learned about Yiguan Dao, and attended temple because of any interest in, or because he is a committed or genuine Yiguan Dao follower. The Tribunal considers that the applicant has only become involved in Yiguan Dao since his arrival in Australia in order to strengthen his claims to be a refugee. As put to the applicant at hearing, if the Tribunal found this was the case, it would have to ignore his conduct in Australia. The applicant did not provide a clear response to this.

20. Section 91R(3) of the Act requires the Tribunal to disregard any conduct engaged in by an applicant in Australia unless the applicant satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. For the reasons given above, the Tribunal is not satisfied that the applicant's initiation/”Baptism”, acquired knowledge and practice of Yiguan Dao was engaged in other than for the purpose of strengthening his claim to be a refugee and the Tribunal is therefore required to disregard this conduct in its assessment of the applicant’s well-founded fear of persecution.

21. The Tribunal accordingly disregards the applicant’s Yiguan Dao related activities for the purpose of assessing the applicant’s refugee claims (s91R(3) of the Act).

22. The Tribunal thus finds that the applicant has had no involvement with Yiguan Dao in China, or in Australia, and he is not a genuine Yiguan Dao follower. The Tribunal considers there is no basis to suggest that the applicant would return to China and practice Yiguan Dao. In sum, the Tribunal does not accept that the applicant (or his family members) has been of adverse interest to the Chinese authorities to date, nor that he (or his family members) may be of adverse interest to the authorities in the future for the reasons claimed.

23. The Tribunal put to the applicant that it was required to have regard to the DFAT reports, which provide country information, however if it did not accept his claims, it may find that there is no relevant information in the DFAT reports. The Tribunal has considered the relevant DFAT reports which provides country information. On the evidence before it, the Tribunal is not satisfied that the DFAT reports (or the PAM Guidelines) change the Tribunal’s findings in the above paragraphs, or below.

24. As the applicant’s claims relate only to matters of religion (and the consequences flowing from this), and as the Tribunal does not accept any of those claims, the Tribunal finds that there is no real chance that the applicant faces serious harm now or in the reasonably foreseeable future, if he returns to China. The Tribunal has already found that the applicant will not face adverse attention for any past behaviour or connections, and the Tribunal is not satisfied on the evidence before it that there is a real chance that he will face harm from the authorities in China. 

25. The Tribunal finds there is no basis for the applicant's claims to fear persecution. The Tribunal has considered the facts as found, on a cumulative basis, and is satisfied that if the applicant returns to China there is no real chance that he will be harmed by the authorities or anyone else for a Convention-based reason. The Tribunal is also satisfied that there is no real chance that the applicant will be at risk of persecution for a Convention-based reason should he return to China in the reasonably foreseeable future.

26. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by the authorities in China or other groups or persons should he return to China now or in the reasonably foreseeable future. Having considered the applicant’s claims individually and cumulatively, 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).

    Complementary protection

27. The Tribunal notes that the applicant did not suggest that his activities in Australia in attending churches or being baptised were monitored by the Chinese authorities.

28. The Tribunal is not satisfied, on the evidence before it, that the authorities would be aware of any activities the applicant has undertaken in Australia such as attending temple or learning about Yiguan Dao.

29. The Tribunal has rejected the applicant’s claims that he is a genuine Yiguan Dao practitioner, that he has attended any Yiguan Dao activities in Australia other than the activities supported by the documentary (letter and photographic) evidence. The Tribunal has already found that the applicant’s attendance at religious activities was solely for the purposes of his claims. There is no evidence before it to suggest that his attendance at such activities would lead to a real risk of significant harm for the applicant in China. Further, the Tribunal does not accept that he would undertake any religious activities when he returns to China, as he is not a genuine Yiguan Dao practitioner.

30. The Tribunal finds there is no basis for the applicant's claims to fear significant harm. 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 China, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

31. 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).  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). 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) for a protection visa.

    DECISION

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

    Christine Cody
    Member

    
    

    ANNEXURE A - RELEVANT LAW

33. 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.

    Refugee criterion

34. 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).

35. 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.

1. 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.

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

3. 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.

4. 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.

5. 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.

6. 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

7. 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’).

8. ‘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. 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

9. 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.