1414615 (Refugee)

1414615 (Refugee) [2015] AATA 3961 (18 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1414615
COUNTRY OF REFERENCE:                  China
MEMBER:Belinda Mericourt
DATE:18 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 18 December 2015 at 12:03pm

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

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).
The applicant is a citizen of China. He applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] July 2014.
On 27 August 2014 the applicant lodged an application for review of the Department’s decision with the Tribunal. When lodging the application for review, the applicant provided a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 7 October 2015 and 12 November 2015 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant was born in [year]. Based on the documents in his file, the Tribunal is satisfied that he is a national of the People’s Republic of China (PRC) and no other country and that he has no right to enter and reside in any other country. The Tribunal is therefore satisfied that the PRC is the applicant’s receiving country as defined in section 5 of the Migration Act, for the purpose of assessing the complementary protection criteria.
The applicant stated he was married and had a daughter born in [year] and a son born in [year]. His wife and son reside in China and his daughter resides in Australia. Before entering Australia the applicant stated that he lived in [Fujian] Province, China.
The applicant was granted a Student Guardian visa (subclass 580) [in] March 2008 on the basis of being the guardian of his daughter who was the holder of a Student [visa]. The applicant entered Australia [in] April 2008. [In] May 2009 the applicant’s daughter’s student visa was cancelled and, as a consequence, the applicant’s Student Guardian visa was cancelled [in] May 2009. The applicant and his daughter remained in Australia as non-lawful non-citizens. The applicant lodged a valid application for a protection visa [in] August 2009 and was granted an associated [Bridging] visa [in] August 2009.
[In] October 2009 the Department refused to grant the applicant a protection visa and on 9 November 2009 the applicant sought a review of this decision at the Refugee Review Tribunal. On 1 April 2010 the Tribunal (differently constituted) affirmed the Department’s decision.
[In] April 2010 the applicant sought judicial review of the Tribunal’s decision and [in] February 2011, the judicial review application was dismissed by the Federal Magistrates Court. [In] March 2011, the applicant lodged an appeal against the Federal Magistrates Court decision at the Full Federal Court of Queensland and [in] May 2011 the appeal was dismissed by the Full Federal Court. [In] May 2011 the applicant lodged an application for special leave at the High Court to appeal the decision of the Full Federal Court and [in] June 2011, the application for special leave was deemed abandoned by the High Court.
[In] July 2011 the applicant became an unlawful non-citizen until [March] 2014 when he lodged a further application for a protection visa on the basis of the outcome of SZGIZ.
The applicant attended an interview with a delegate of the Department [in] June 2014.
[In] July 2014, a delegate of the Department refused to grant a protection visa on the basis that she agreed with the Tribunal’s finding in its decision of 1 April 2010 that the applicant would be able to practice his Christian faith at an unregistered church in China without facing a real chance of persecution by the Chinese authorities or anyone else. The delegate rejected in its entirety, the applicant’s claim that he would be harmed on account of his wife being involved in a traffic accident. As there were no other claims for protection, the delegate was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and therefore found that the applicant’s fear of persecution, as defined under the Refugees Convention, is not well founded. The delegate was also not satisfied there is a real risk that the applicant would face significant harm should he be returned to China, and therefore she was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
RELEVANT LAW
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 noncitizen 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.
On the evidence before it, the Tribunal finds that the applicant’s first protection visa application was refused [in] October 2009 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 Migration Act.
Complementary protection criterion
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’).
‘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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant, which includes a certified copy of the applicant’s PRC passport issued [in] 2009, his application for a protection visa, his written statement of claims and a copy of the delegate’s decision record. The Tribunal also has before it the applicant’s first protection application file which includes his application for a protection visa, his written statement of claims, a copy of the delegate’s decision record dated [in] October 2009 and a copy of the Tribunal’s decision record dated 31 March 2010.
The Tribunal’s file contains the applicant’s application for review, Department movement records for the applicant and his daughter and a copy of the delegate’s decision record.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Requirement that the decision-maker be ‘satisfied’
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 an 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Application to the Department
The applicant indicated on the application form that he is a citizen of China. He is of Han ethnicity and his religion is Christianity. He attended primary school in Fuqing, Fujian Province for [number] years until [year] and he worked as a [occupation] from [year] to 2008 for [a business]. He was married in 1995 in Fujian province and has two children born in [year] and [year]. On his application form he stated that his wife and son reside in China, and his daughter resides in Australia ‘and is independent’.
The applicant provided a personal statement to the Department in respect of his protection claim. This statement is summarised as follows (using the applicant’s words):
The applicant came to Australia [in] April 2008. After he arrived he requested refugee protection ‘as there is no religious freedom in China’. Unfortunately, he was rejected and the only thing he could do is pray to God. He also thought about going back. After his passport expired, he obtained a new passport. However, he was afraid to go back as his refugee application was refused. Now he fears returning home because of something that happened there. Not only for religious reasons, but also his wife was threatened and blackmailed by officials and police.
In September 2012, the applicant’s wife was hit by a private car driven by [Mr A] when she was riding [a] bicycle to work. The driver did not admit responsibility and when the police came, they blamed his wife for disobeying the traffic instructions and hitting him. [Mr A] had a government background. His wife was persecuted by the local government and public security departments, so the applicant is afraid to go back. His wife insisted that he could not go back. Thus he is reapplying for refugee protection now.
His wife told him about the accident [in] September 2012 via telephone. (The applicant then goes into details about the accident). The applicant stated he planned to return to China when he found out about the accident but his wife insisted he should not return because she had found out [Mr A] was [an official] of the [Party] Committee. His wife received a traffic accident notification from the police which said his wife was responsible. [In] October the police asked his wife to come to the police station where she was told that [Mr A] required her to pay compensation for vehicle damage, medical expenses, lost income, nutrition fees, mental anguish and other fees totalling RMB [amount] yuan. This was blackmail.
His wife consulted lawyers who were not willing to take the case and persuaded her to give up. As the notice said his wife had full responsibility and [Mr A] has “special background”, they considered it was impossible to win and because of this she might get into trouble. The police repeatedly urged his wife to pay compensation. His wife did not want to compromise and she could not afford the amount. Police said to her that her husband is in a foreign country – he must be very rich. If she does not pay, she will be sued. His wife decided to go to a higher level of government to reveal the truth and went to the Petition [Office] to make a petition, but she did not find the person in charge. She had to give the officials the petition materials. By the end of February 2013, his wife received a threatening call, which told her not to petition and pay the compensation quickly. His wife was afraid and the applicant told her on the phone that she should at least pay some money.
[In] April 2013, the police came for compensation again and his wife had to pay a little part of the money. [In] May the police came again to remind her about compensation. His wife got anxious and argued with the police and a struggle happened. The police said his wife assaulted them and they detained her for [a number of] days. When she paid a fine of RMB [amount] yuan she was released. His wife was tortured in the detention centre and fell ill.
After his wife’s release, she was at home in bed. She could not understand why she got this punishment when she had done nothing wrong. The applicant told her on the phone that he would return but his wife said that if he went back, the police would send them to jail without any charges. The applicant was also scared when he recalled the memory of being arrested for underground meetings. He has to earn money for his wife to pay the unreasonable compensation.
The applicant believes the system in China is very corrupt and there is no justice at all. He wants his wife to go abroad but it is now impossible to get a passport. Chinese officials and the police are corrupt which is why he is now applying for a refugee visa. He has been in Australia for six years and learned skills in [occupation]. He is still young and is willing to contribute to the Australian community and hopes to freely worship God in Australia as in China there is still no freedom of religion’.
The applicant did not provide any supporting documentation with his application.
[In] June 2014 the applicant was interviewed by a delegate of the Department. The Tribunal has listened to the interview and is satisfied that summary of interview in the Department decision record is accurate.
Claims for protection
In summary, the applicant confirmed at the hearing that he is making the following claims for protection:
·the applicant claims that the police will be after him and detain him because of the “family religious gatherings about which he made his previous claims for protection”. He claims to still be a practicing Christian and attends a Mandarin speaking church service every Sunday in [his suburb]. He claims that as a Christian he will hold gatherings in his home and then he will be detained by the authorities as happened in April 2008;
·in September 2012 his wife was involved in an accident with a car driven by a powerful person who insisted the accident was her fault and demanded compensation. When his wife argued with the police she was detained for [a number of] days in May 2013 and forced to pay compensation. She has advised him not to return to China as he would be involved in the claim for compensation and charges relating to her and possibly sentenced. He may be asked to pay the compensation and as police and government officials are corrupt they take every opportunity to take money from them and it would not be possible to go to the courts about the matter;
·the applicant thought that there is a real risk he will suffer significant harm if he returned to China due to his Christian beliefs and practice and because he would be involved in his wife’s dispute with local authorities.
TRIBUNAL HEARING
The applicant told the Tribunal that he is illiterate himself. He can read a little Mandarin and write numbers and sign his own name. A friend helped him to write his claim in Mandarin and to find a migration agent who translated it into English. The friend read back what he had written and the applicant checked the accuracy of his claim. He stated he believed it was accurate and he did not wish to correct anything or to add anything to his claims. The Tribunal asked him if he wished to include the claims he had made relating to this Christian beliefs and practice in his first application. Initially he stated no, but later in the first hearing he stated that he wished the Tribunal to consider those claims also.
The applicant stated that he made his application for a student guardian visa for the purpose of coming to Australia with his daughter to do her cooking and washing while she was a student. He also stated that he made the application because of “what happened in China”. The Tribunal asked to clarify what he was referring to. The applicant said he meant the incident in which he was detained. The Tribunal put to him that this incident occurred in April 2008 and he had lodged the application for his student guardian visa in December 2007 and asked whether there had been any incidents prior to lodging that application. He agreed that nothing had happened before he lodged the application but there was always the possibility that something would happen due to the Chinese authorities not allowing people have meetings or gatherings in their homes as Christians.
The Tribunal put to him that, given he did not “look after” his daughter for very long perhaps he had come to Australia simply to work and send money back to China. He said that was not the case as in China he had had a very good job in the [product] industry and was earning [amount] RMB p.a. At the time he departed China his wife was also working in a good [job] in the [the same] industry earning about [amount] RMB p.a. She has since quit that job and now works in a factory earning about [amount] RMB p.a.
The applicant said that he is currently living in one room in a house in [his suburb] shared by three other people. He has casual work two or three days a week in [an occupation] which is sufficient to pay for his rent and food. His daughter lives nearby with her husband, children and his niece. He saw her last weekend. He does not know whether she has applied for a visa herself.

The Tribunal asked the applicant why he did not include his daughter in his own protection application and he said he did not want to worry her. The Tribunal asked if she was also a practising Christian at the time and he said she was. The Tribunal asked the applicant if he was concerned that she would be persecuted if she returned to China due to her Christian beliefs. The applicant stated that he was worried about this but his application was personal to him. The Tribunal asked the applicant if he was worried about the fact that his daughter no longer had a valid visa and was in Australia unlawfully. The applicant said that he was worried about this also. The Tribunal put to the applicant that it seemed odd that if he was worried both about his daughter returning to China and about her staying in Australia unlawfully that he did not do something to help her such as include her in his application, particularly as she was only [age] years old at the time. The applicant repeated that he did not include her because he was worried about her and he did not want her to know about what had happened to him in China. He did not know if she was still a practising Christian.
The applicant stated that he spoke to his wife by phone regularly but rarely spoke to his son. He last spoke with his wife on the weekend before the hearing. The applicant thought his son was studying but did not know what he was studying or where. Since arriving in Australia he has sold a small piece of his land in China to pay for his son’s tuition fees. He does not send his wife and son money from Australia and his wife supports herself and his son doing casual work at a factory. His son occasionally [works] during his holidays or on Sundays. His wife and son continue to reside in the family home in [their home village] where he was living before he came to Australia.
The applicant’s father has died since he arrived in Australia and his mother lives with his [brother] and his family in the same village as the applicant’s wife and son.
Claims related to the applicant’s Christian beliefs and practice
The applicant told the Tribunal that before he departed China he had gatherings of members of the ‘shouters’ religious sect in his own home about every 2-3 months. However, the police raided a gathering that was being held in another person’s home in March/April 2008. At the time of the raid they were listening to someone read the Bible. They were not singing or shouting or making any noise. He thinks that they may have been reported by someone else.
At the first hearing, the applicant said that his parents and brother were detained at the same time as himself in April 2008. The Tribunal put to him that he had not mentioned this to the Department or at the previous Tribunal hearing. He thought that he had. They were all detained for three days and then released. At the second hearing, the applicant said that only he was detained with the other [members] of the gathering and his parents and brother were not present. When the Tribunal put to him that this was different evidence from the evidence he provided at the first hearing, the applicant stated he could not remember what he said in the first hearing. The Tribunal confirmed with him that he was the only member of his family that was arrested, detained and beaten in April 2008. The Tribunal clarified what the applicant meant by being beaten and he said that he was slapped with an open hand by one of the police officers. He was not physically injured. He was released without paying a fine and he was not formally charged. He has no criminal record.
The Tribunal confirmed with the applicant that none of his family members have been detained since this incident. He stated although they had not been detained they have been warned not to practice Christianity but they continue to do so “secretly”. The Tribunal clarified what the applicant meant by being warned, and he said the authorities told him not to join the gathering again and if he did so, they would arrest him again.
The applicant claimed that he continues to be a Christian and that he is a ‘shouter’. The applicant could not tell the Tribunal in what ways ‘shouters’ were different from other Christians in either China or Australia. He kept insisting that ‘shouters’ were Christians and that their beliefs and practices were no different from any other Christian. The Tribunal put to him that, in China, ‘shouters’ had different practices and beliefs from other Christians such as Roman Catholics or other Protestants, however, the applicant denied there was any difference from other Christians in the private gatherings he attended in China.
The applicant claims that he attends a church in [his suburb] regularly (unless he is sick) on a Sunday where they have a Mandarin service at 11am. He does not know the name of the church because he does not speak English. He attended last Sunday. The Tribunal asked him what he did when he attended church and he said he sang songs and listened to lectures. The Tribunal asked him what the lecture was about last Sunday. The applicant said it was about the resurrection. The Tribunal asked him about what the lecture said about the resurrection. The applicant said “to be honest”. When the Tribunal asked him how this was related to the resurrection he said “to be like Jesus”. When Tribunal asked him again how this was related to the resurrection and what was the significance of the resurrection, the applicant was unable to give any specific details.
The Tribunal asked the applicant if he had been baptised and he said he had not. The Tribunal put to him that he told the member at the first Tribunal hearing in 2010 that he intended to be baptised and asked him why he had not been baptised in the six years since that hearing. He said that he was not “fully qualified to be a genuine Christian”. The Tribunal asked him to clarify what he meant and he said that he has not “done well enough yet”. The Tribunal asked the applicant what he thought the meaning of baptism was and he said it was “to have a new life”. Despite the Tribunal asking him in a number of ways what he needed to do before he could be baptised, the applicant was unable to say what he needed to be able to do “well enough”. The Tribunal asked the applicant what would happen to him if he died without being baptised and he said “it is arranged by God”. When asked what he meant, he said that God would not accept him. When the Tribunal asked if he was worried that he might die before his baptism and then not be accepted by God, the applicant stated that he was concerned but he could not be baptised because he has not yet “done well enough”. The Tribunal put to the applicant that in its understanding, it was not necessary to do things well enough to be baptised but only to believe in Jesus and want to have a new life. The applicant repeated that he believed he needed to do things well enough before he could be baptised.
The Tribunal asked the applicant what being a Christian meant to him personally. He stated it meant having “an internal life”. When asked what he meant by an internal life he said “being beside God” and believing in Jesus Christ. The Tribunal asked the applicant why he believed in Jesus Christ, he said because it would make you happy whatever happened. The Tribunal asked him if he was happy as a result of his belief and he said yes.
The Tribunal asked the applicant what he believed would happen to him as a result of his Christian beliefs if he returned to China now or in the foreseeable future. The applicant stated that he would be detained by the authorities. The Tribunal stated that this seemed inconsistent with the evidence he had provided earlier that his wife and son still practised Christianity in private homes and had done so for the seven years he had resided in Australia without being detained, arrested or harmed in any way. He said that if he went back to China he would hold gatherings in his house and then he would be detained. He had heard that other brothers and sisters had been arrested. The Tribunal asked him if his wife had held any gatherings in the house since he left China. He stated that she had done so once or twice in secret. He confirmed that his wife had not been detained and said this was because she had not been reported to the authorities. However, he believed there was a real risk that if he returned to China and held meetings in his home he would be reported and then detained.
The Tribunal put to him that in his first application he had been detained when he attended a gathering in another person’s home – that of [name deleted] and there had been no suggestion that he had come to the attention of the authorities due to gatherings in his own home. The applicant insisted he would have gatherings in his home because he was a Christian. He had had one gathering at his own home after his arrest and detention. Initially the applicant used the word ‘leader’ in respect of his own role. However, after some clarification, he then stated he was not a ‘leader’ in the church and had never been a leader in the church in China. He would just have gatherings in his home.
The applicant claimed that his wife and son, mother and brother are all practising Christians and continue to attend private church gatherings in people’s homes. None of them have been detained, charged or harmed by the authorities as a result of their Christian practice.
The Tribunal put to the applicant, that in the seven years since he left China according to his own evidence, none of his family members had ever been detained, arrested or harmed as a result of their practice of Christianity, and therefore it seems unlikely that he would be detained as a result of his own Christian practice if he returned to China, particularly as he acknowledged he was not a leader in the church and had never been identified as a leader of the church. The applicant insisted that it was always possible to be detained by authorities in China as a result of holding gatherings of Christians in one’s home, even in secret. Even though his family members had not been persecuted they continue to be “warned” not to be involved in Christian gatherings.
The Tribunal put to the applicant that recent independent country information confirmed what had been put to him at the first hearing, that is, “ a 2009 report on the Protestant church in through Jiang province in a Global Chinese Ministries newsletter confirms that there are large numbers of independent house churches in Fujian. The report also indicates that in general, local government authorities in Fujian seems fairly tolerant of unregistered believers as it is rare that one reads of cases of persecutions of house Church Christians in this province”[1]
[1] Department of Immigration and Border Protection, Background Paper China: Protestants in China p.23 citing Global Chinese Ministries 2009, “The Protestant Church in Fujian Province” Overseas Missionary Fellowship International website, April 2009.
The applicant claimed that the authorities did things in private so people would not know.
Claims for protection as a result of his wife’s accident in China
The Tribunal asked the applicant why he would be at risk as a result of his wife’s accident and consequent claims for compensation by police. He stated that as he was her husband they would be treated as a couple and he would be asked to pay the compensation. As he had no money to make the payment he would be detained.
The Tribunal put to the applicant that he stated in his written statement in his application for complementary protection that his wife received a traffic accident notification from the police soon after her accident. The Tribunal asked the applicant if he would be able to obtain a copy of the notification and provide it to the Tribunal. The Tribunal also asked applicant if his wife had kept a copy of the petition that he claimed she had presented to the Petition [Office]. The applicant stated he could contact his wife and get her to send relevant documents to the Tribunal. However, he was unclear exactly what documents his wife may have. The Tribunal asked him why he had not thought to do this for given both the Department and previous Tribunal had invited him to provide supporting documents. The applicant stated that they had not asked to do so. The Tribunal agreed to provide extra time to the applicant to provide such documents as may relate to his wife’s accident compensation claim and petition to the authorities.
The Tribunal asked the applicant to explain what he had meant when he stated that his wife was “tortured” when she was detained in May 2013 and what he had meant when he stated she was ill after she was released from detention. The applicant stated that she was verbally abused and they beat her. On further clarification, he said that she told him she had bruising on her [body] and she had traditional medical plasters put on her [body] after she was released from detention. He did not know how the bruising was inflicted as his wife only told him she was beaten with no other detail.
The Tribunal asked the applicant how she was released. The applicant said that her [brother] went to the police station and gave his wife [amount] yuan in cash which she paid to the police. She was not formally charged and has no criminal record as far as he is aware.
The Tribunal asked the applicant if his wife or son had been detained or harmed since the incident in May 2013 when his wife was detained. He said she had not, but that the police still called around at the house asking for money. The last time they did this was about one month ago.
The Tribunal asked the applicant if his wife had paid any more than the [amount] yuan she paid at the time she was detained. The applicant said she had not paid any more because she had no money.
The Tribunal put to the applicant that it appeared from his own statement, that his wife had only been detained after she had argued with the police and engaged “in a struggle”, and that this had occurred sometime after making several protests and provided a petition to the authorities about the police demand for a compensation payment. Her detention was not just because she had not made a payment. The applicant agreed that his wife had been detained after she had a scuffle with police but insisted it was because she had not made any payments.
The Tribunal put to the applicant that as his wife had not paid any of the compensation payment with the exception of [amount] yuan and she had not been detained or harmed as a result of not making any further payments in the 2½ years since the incident in May 2013, it seems unlikely that he would be detained if he returned to China for non-payment of the alleged compensation. The applicant told the Tribunal that’s the type of thing that the authorities did. They would charge you with anything. The Tribunal put to him that it would be more in their interest to have him working and earning an income and paying off the debt in small amounts, than it would be to keep him in detention where they would never get the money. The applicant said that was not the way the authorities thought about matters like this. They would detain him in order to put pressure on him to borrow money. The Tribunal asked why they had not done this to his wife and he said that his wife would not be able to borrow money.
The Tribunal asked the applicant if the authorities had tried to take away any of his remaining land or house in lieu of payment. He said they had not because it was not enough for the repayment.
The Tribunal asked the applicant why his wife had been unable to pay any of the compensation when he had provided evidence that she was earning a reasonable salary of [amount] RMB and she had no dependents to support. The applicant insisted that she only had sufficient funds to support herself and cannot make any payments towards the compensation demand.
On 13 November 2015, after the hearing, the Tribunal wrote to the applicant inviting him to provide further information related to the police notification of the traffic accident and demand for compensation received by his wife from October 2012 and any information related to the petition his wife lodged at the Petition [Office] in March/April 2013.
On 10 December 2015 the applicant provided a translated copy of a petition dated [in] February 2013 made by his spouse to the People’s [Court]. The petition refers to the accident when she was on her [bike] and hit by a car [in] September 2012 and states that she requested the person who caused the accident, [Mr A], [Party] [official] be punished and pay for her “car loss, medical treatment, lost wages and mental damage compensation”. She stated that [number] days after the accident police interviewed her in the hospital and two weeks later they returned to tell her that the accident was her fault and she should pay [Mr A] for “car loss, medical treatment, lost wages and mental damage compensation” a total of [amount] yuan. Several other untranslated documents were also provided relating to the applicant’s hospital stay. No copy of the police notification of the traffic accident was provided.
Claims related to returning to China as a failed asylum seeker
The Tribunal asked the applicant if he had any other reasons to fear returning to China and he said he did not. The Tribunal asked the applicant number of times if he feared returning to China as a failed asylum seeker. He stated that he was concerned that the refusal of his protection application would mean that he would be arrested by authorities, however, when asked to clarify, the applicant stated he was referring to his wife’s accident and compensation claims as the reason for his arrest.
FINDINGS AND REASONS
Credibility
During the hearings, the Tribunal discussed with the applicant his background, circumstances in Australia and his fears of returning to China. The Tribunal raised its concerns in relation to the applicant’s credibility, noting a number of inconsistencies between the applicant’s oral evidence to the Tribunal at the two hearings and his evidence to the Department and at the previous Tribunal hearing in 2010. The Tribunal raised its concerns related to the applicant’s evidence at the first hearing that his brother and parents were arrested and detained with him in April 2008 as a result of their involvement in a gathering of ‘shouters’ which was different from the evidence he had previously provided to the Department and the previous Tribunal hearing, and different from the evidence that he provided to this Tribunal at the second hearing when he said he was the only member of his family arrested and detained. The Tribunal is not satisfied that the applicant’s explanation that he forgot what he said was credible, as it would be reasonable to expect the applicant to remember whether his parents and brother were arrested and detained with him or not.
The Tribunal raised its concerns about the vagueness of the applicant’s understanding of basic Christian tenets such as the meaning of the resurrection given his evidence that he has attended church regularly since his arrival in Australia in 2008, his inability to recall in any detail the subject of a sermon he heard only a few days before the hearing, and the lack of credible reasons for not being baptised over the past six years given his assertion in 2010 that it was his intention to do so then.
The Tribunal also had concerns about the supporting evidence in regard to his claims relating his wife’s accident and subsequent claims for compensation. The Tribunal gave the applicant additional time to provide any relevant documents supporting evidence relating to his claims that he would be at risk of arrest due to his wife’s traffic accident and resulting demand for compensation from a corrupt government official. The petition document that he provided refers to his wife’s initial claim immediately after the accident for compensation for “car loss” when she was riding [a] bicycle and [Mr A’s] claims are framed exactly the same as the claims she made against him.

Based on the above concerns which are described in more detail below, the Tribunal finds that the applicant is not a witness of truth and is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for these findings are discussed below.
Claims related to the applicant’s history of being a member of the ‘shouter’ sect in China
The Tribunal does not find the applicant’s evidence credible that one of the reasons he did not include his daughter on his own protection application was because he did not want her to find out what happened to him in China when he was detained in April 2008. This incident occurred only a few days before he departed China. His daughter was living in the household with him and he was allegedly detained for [number] days and needed medical treatment the day after he was released [in] April 2008, only [number] days before he departed China with his daughter. The Tribunal finds it somewhat implausible that his daughter was unaware that something had happened to him in the week before their departure.
The Tribunal is not satisfied that the applicant was or is a member of the “shouter” sect of Christianity as he was unable to give any details about the differences between “shouters” and other denominations of Christianity or about any of the practices unique to “shouters”.
The Tribunal did not find the applicant’s evidence credible that his parents and brother had been detained at the same time as himself in April 2013 as a result of attending a “family church gathering” at a private home as he had not provided this evidence to the Department in either his original or second applications for protection, nor to the previous Tribunal hearing on 1 April 2010. The applicant had no explanation for why there is no record of his mentioning the involvement of his parents and brother, other than to say he thought he had told the Department and the previous Tribunal. He also changed his story at the second hearing and said that he was the only member of his family who was detained.
The Tribunal had regard to the applicant’s evidence that his family members, specifically his wife, son, brother and mother continued to hold Christian beliefs and attend gatherings of Christians in private homes, and that none of them have been detained, harmed or otherwise persecuted as a result of their Christian beliefs or practices since the applicant departed China in 2008, seven years ago. The applicant stated they had been “warned” not to attend Christian gatherings, but that was the extent of the authorities’ concerns.
On balance, considering the above evidence both individually and cumulatively, the Tribunal is not satisfied that the applicant was detained by Chinese authorities as a result of his attendance at a family or shouter church gathering in April 2013 or that he was a practising “shouter” at the time.
Considering all the above evidence individually and cumulatively, 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 he or she will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of any real or perceived involvement in gatherings of ‘shouters’ or for his imputed beliefs or engagement in ‘shouter’ practices if he returns to China now or in the reasonably foreseeable future.
Claims related to the applicant’s current Christian beliefs and practices
The Tribunal next considered whether the applicant has become a practising Christian since arriving in Australia. The applicant told the Tribunal that he attends church services at a Mandarin speaking church in [his suburb] regularly except when he is ill. He could not tell the Tribunal the name or address of the Church. He claimed this is because he cannot speak English. The applicant was unable to tell the Tribunal any details about the last lecture (sermon) that he said that he had heard a few days prior to the hearing. The Tribunal is not satisfied that the applicant’s illiteracy or poor education explains why he was unable to remember the content of the sermon that he heard only a few days prior to the hearing.
The applicant was unable to tell the Tribunal about the significance of the resurrection or the lesson for Christians of the significance of the resurrection, which was allegedly the topic of the sermon. Neither was the applicant able to give the Tribunal a coherent reason why he has yet to be baptised given his stated intention was to be baptised over six years ago, and his acknowledgement that baptism is an important part of Christian belief in that God would not accept him if he was not baptised.
The applicant has acknowledged that he is not a leader in his church and has never been identified as someone in a leading role.
The Tribunal considers the level of the applicant’s knowledge of Christianity is less than could be expected of someone who has been attending a Christian church reasonably regularly since 2008 as claimed by the applicant. The Tribunal considers that his failure to be baptised even though he claims baptism is an important part of Christian belief reflects poorly on the applicant’s credibility and the reliability of his evidence about his current belief and in practice of Christianity.
The applicant has not provided any supporting evidence to the Tribunal of his regular attendance at the church in [his suburb] or his involvement in any activities of that Church. He is not able to identify the name of the church.
Given the above evidence, the Tribunal is not satisfied that the applicant is currently a practising Christian or that he has ever been a practising Christian.
Considering all the above evidence individually and cumulatively, 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 he or she will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of any real or perceived involvement in Christian gatherings in private homes in Fujian province or for his imputed beliefs or practice of Christianity if he returns to China now or in the reasonably foreseeable future.
Claims related to the applicant’s wife’s dispute with a Chinese official
The Tribunal accepts that the applicant’s wife was involved in a road accident in September 2012 and is now being asked to pay compensation for alleged damages. The Tribunal accepts that the applicant’s wife made a petition to the Peoples [Court] in February 2013. The Tribunal accepts the applicant’s evidence that his wife was detained for some days in May 2013 as a result of her protests and petition about the injustice of being asked to pay compensation for an accident which she believes is not her fault, and as a result of a struggle she had with police. The Tribunal accepts that the applicant’s wife was released from detention after she paid a fine of [amount] yuan.
The applicant gave evidence to the Tribunal that his wife has not been detained, harmed or threatened with harm since the incident in May 2013 and nor has she made any further payments in respect of the demand for compensation. Even if the Tribunal accepts that local authorities occasionally come to his wife’s house to ask her money, neither the local authorities nor the police have taken any further action to either pressure her to borrow money or get compensation.
Given the applicant’s wife has not been threatened with harm for the past 2½ years, the Tribunal is not satisfied that the applicant will be detained by authorities on his return to China in respect of his wife’s compensation claim simply because “they are a couple”.
As noted in paragraph 16 above, ‘significant harm’ for these purposes is 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.
The Tribunal accepts that local authorities may perceive him to be wealthier than he actually is because of his long-term residence in Australia, and therefore may make demands that he pay the compensation that has been demanded from his wife. However, the applicant has not made any claim that he will be arbitrarily deprived of his life, or that he will be sentenced to a death penalty, subjected to torture or to cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act.
The applicant has given evidence that his wife was detained on one occasion in May 2013 after she engaged in a struggle with police and protested about the unjust demand that she make compensation payment. The applicant claimed she was beaten but had no details about what this involved other than after her detention she had some bruising on her [body]. She did not require any medical attention. The applicant stated that his wife has not suffered any harm or threat of harm as a consequence of not making further payments towards the alleged compensation fee over the past 2½ years.
Considering the above evidence both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant would suffer significant harm now or in the foreseeable future if he were to return to China as a result of compensation claims made against his wife over three years ago.
Summary
Taking all the above evidence into account both individually and cumulatively, the Tribunal is not satisfied that the applicant was a ‘shouter’ in China or is currently a genuine practising Christian. The Tribunal is not satisfied that the applicant was or is of any adverse interest to the Chinese authorities due to his imputed or actual religious beliefs or practices. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that, as a consequence of being his wife’s husband he will be held responsible for the demand of compensation payment as a result of her accident, or that he would be detained or suffer significant harm if he is returned to China now or in the foreseeable future.
For the sake of completeness, the Tribunal gave consideration to the applicant’s concerns that he may be harmed as a failed asylum seeker should he returned to China. Country information indicates that there is no real risk of failed asylum seekers suffering any significant harm on their return to China.[2]
[2] CXBD6A0DE6523: "China - Country Information Request CI150402160444876 - Treatment of Returned Failed Asylum Seekers ", Department of Foreign Affairs and Trade, 18 May 2015.
The Tribunal is therefore 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 (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).
CONCLUSION
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Belinda Mericourt
Member

[2015] AATA 3961

18 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Appeal