1415161 (Refugee)

[2015] AATA 3400

1415161 (Refugee) [2015] AATA 3400 (18 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415161

COUNTRY OF REFERENCE:                  China

MEMBER:Chris Keher

DATE:18 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

Statement made on 18 September 2015 at 1:19pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of China, applied to the Department of Immigration for the visa [in] September 1995.

3. The delegate refused to grant the visa [in] April 1997, and the applicant applied to the Tribunal for review of that decision. The delegate’s decision is dated [in] April 1997 however the Department failed to correctly notify the applicant until [in] August 2014.

   RELEVANT LAW

4. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As a result of amendments to the Act, some of the criteria in s.36 do not apply to visa applications made before 1 October 2001. However, the criteria in cl.866.221 of the Regulations, as applicable to this application, broadly reflect the criteria for a protection visa in s.36(2) of the Act. An applicant for the visa must meet one of the alternative criteria in cl.866.221(2), (3), (4) or (5): cl.866.221(1). That is, the applicant is either a person to whom 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person to whom Australia has protection obligations under either the Refugees Convention or the complementary protection grounds and that person holds a protection visa.

   Refugee criterion

5. Clause 866.221(2) is satisfied if the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention.

6. 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.

7. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

8. 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. These provisions were inserted on 1 October 2001 and apply to all protection visa applications not finalised before that date.

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

10. 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)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: 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.

11. 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.

12. 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.

13. 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 fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. 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.

14. 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. 

15. Whether an applicant is a person to 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

16. If a person is found not to meet the refugee criterion in cl.866.221(2) he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a person to 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: cl.866.221(4) (‘the complementary protection criterion’).

17. ‘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. 

    Section 499 Ministerial Direction

18. 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, and the Tribunal has done so.

    CLAIMS AND EVIDENCE

19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. The applicant provided a copy of the delegate’s decision with his application for review.

20. The applicant appeared before the Tribunal on 15 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

21. The applicant is [name]. He is [age] years old and a citizen of the People’s Republic of China (PRC).

22. In his original application he claims he is married ([in] 1983 in Shenyang) and has a daughter (born 1984). He claims to be ethnic Korean and a Christian. He departed the PRC [in] June 1995 on a passport issued to him [in] 1995 and arrived in Australia on a [temporary] visa. In China he lived at the one address from [1985] to [1995]. He claims to have attended a Korean Primary School from [year] to [year] and then a Korean High School from [year] to [year]. He then studied [a trade] Certificate (Level 4). He worked as a [occupation] from [year] to [year], [in his trade] from [year] to [year], and then as a [occupation] for [a company] from [year] to [year].

23. He claims that his parents were Christian and he was “educated with the Christian’s ‘2 Ways’ theory from childhood”, and though he is Chinese he couldn’t enrol in an ordinary school as he is ethnic Korean.  He claims that after completing high school he was then “exiled” to work [at a location] and sought “sustenance in the Bible” He was criticised for this and beaten as he had told a Bible story to a local [person]. He was assigned the heaviest work, wasn’t allowed to visit his family, was monitored and had “no time or opportunities to study Bible”.  He was not allowed to return home until 1981, as there had been a “mass ‘school leaver’ rebellion in [the] Province. He claims in 1985 he was given a warning as he had organised “underground church activities”. In 1990 he met a PSB member and they became friends. His name was [name].  He was released after 2 days on the promise not to be “involved in any religion spreading activities any more in the future”. In 1991 he joined the [company] on the recommendation of [his PSB friend] and also joined his underground church. They engaged in religious activities “more secretly undertaken”. They at the same time “schemed to leave China for Western freedom”. He claims he fears harm in China for racial and religious reasons, he has a bad record of involvement in religious activities, he schemed to leave China in order to “escape from persecution” and this is a crime, and as he has made this application it will be considered he has betrayed his country and the Communist Party of China.

24. At hearing the applicant said he had arrived in Australia in 1995 and had worked ever since as [another occupation]. He had lived on and off in [a suburb] for most of his time in Australia, had lived in [other cities in Australia]. The last 6 years were in [the suburb] where he rents a room in a house. He had sent money back to PRC initially to pay off the debt of the trip to Australia, but once that was paid has sent nothing to his family. He usually earns about $30,000 to $40,000 cash per year and pays no tax. He said he has no assets. In Australia he can work and pay his bills. He said these were rent, alcohol, and entertainment such as going out with his friends. He said he hasn’t been well recently though denied any particular illness. He had a cold a few weeks ago.

25. The applicant was asked what concerns or issues he had to both leave from China and to return now. He said he found Australia a “really nice country and I undertook casual jobs though then hurt my back and then I worked as [the other occupation]”. He was asked again and said “I was a Christian in China and in China people with religious beliefs are discriminated against”. He claimed that in China he had been introduced to a Christian minister and he had travelled with that minster to Australia. That person “returned to South Korea” a few years after arrival. He said he had attended church for “about 2 or 3 years” after arrival and stopped as the “preacher left”. He hadn’t attended since other than sometimes to pray. He didn’t know the name of the church he had attended, though had some photos showing him in front of the church with some other people. He confirmed he had not regularly attended a church for about 17 years.

26. The applicant said he was concerned if he went back to China now as he had no family there, he had lived in Australia a long time “for 20 years now”, he had no house there, he could continue to work in Australia “maybe another 8 or so years” whereas in China if he went back he would be unemployed or find it hard to find work. He said he wasn’t familiar with his area of China anymore; the winters there are cold and if he returns he has no money and “no one to take care of me”.

27. In China he said he had “attended some religious activity”, specified as a “house church” and in Australia had been “referred to a Church” by the minister he accompanied. He “stopped when the preacher went back”.

28. The applicant was asked who wrote his application and said it was the [agent] who had an office in Chinatown. He was asked if he know what was in it and said “It has been a long time and I don’t remember what was filled in”. He tried to find [his agent] about a year later however discovered he had moved.

29. The applicant said he had always wanted to leave from China and “that’s why I found people to help me and when I did I left”. He said he “felt like I didn’t have freedom in China of religious belief and I didn’t have a good living”. He said he also left as he was divorced.

30. He was asked again if he remembered what he had originally claimed in his application. He said he remembered that he had “been at a house church in 1990 and taken to a police station by a police officer and afterwards I was under surveillance of the police and I had to do religious activity in a secret way and it was difficult in having a  church”. It was put to the applicant why possibly would he want to attend a church in secret as at the time of his departure there were many legally operating churches in his province. He said “yes I did attend those churches and this is how I was referred to the preacher  ... yes I did go to those churches but I wasn’t involved in any of their activity”.

31. The applicant produced an old passport (issued 1995) and also a recent one issued by the Chinese Consulate General [in] 2010. He said over the years he has been issued with about [number] such passports by the Consulate General. It was put to him that the fact of the Consulate General continually issuing him passports indicates he is of no adverse interest to the Chinese authorities, and further he has no concerns about being in contact with them. He said he didn’t attend the Consulate himself but had a friend get the documents for him.

32. It was put to the applicant that it seemed to the Tribunal his coming to Australia was opportunistic and undertaken so that he could work in Australia. He responded by saying “yes I came to Australia and I didn’t plan to go back”. It was put to him it seemed he had come to Australia as he wanted a better life somewhere else. He said “yes that’s why I came to Australia as I want freedom … I felt my freedom was restricted in China”. It was put to him it seemed he only left to find better work. He said “yes I could work then as I was young”. He confirmed in China he only ever worked as a worker, described as like an “office boy”, he had no specific skills or qualifications.

33. The applicant was asked about any other concerns or specifics about his application. He said that “[his agent] had filled in the forms I only remember the religious activity I don’t remember the rest”. He said he had told his story to his migration agent in 1995 and the agent had written the story. He was asked what work he did after leaving school and said he was just a worker. He said he had no trade qualifications, and confirmed he had never worked [in the specified trade] or as a [occupation]. He did not have [the specified] certificate level 4. In relation to his marriage he said he had in fact been divorced at the time of application, and had been for a long time (he produced a copy of a divorce paper indicating he had divorced [in] 1989). It was put to him that it was not recorded in the application that he was divorced and also put to him the above trade and work history. His explanation as to why these incorrect details were in his application was that his migration agent wrote them. It was put to him that it was difficult for the Tribunal to understand why matters like this would be falsified and this cast doubt over the veracity of any of his history and claims.

34. He said that after he finished school in about [year], when he was 19 years old, he went to work in the countryside for a few years, maybe [number] to [number] years. He was asked if he had any issues or concerns of working in the countryside. He said this was when he started being a Christian, “doing home church”, was discriminated against and “had to do it secretly”. Apart from this he said he was young and didn’t earn much. He said the [years] passed really fast, they “couldn’t make the home church as expected”, then I went back to the city and worked in the factory and had a low income. He quit that job in 1990 and later was employed by a [company], again as an ordinary worker. 

35. The applicant claimed he was Christian. He was asked what “Christian” meant and said “I don’t believe in any party especially the Chinese Communist Party. I only believe in God”.

36. He was asked what Christians believed in or set them apart from other religions. He was silent for some time and eventually said he didn’t know, and when asked to explain how he couldn’t know said “I haven’t been to church for a long time and I don’t remember”. He was asked to detail what Christian denomination or group he belonged to and said it was “I only know it is Christian … I pray”. He said he could tell nothing else about Christianity. It was put to him that it was doubted that he had ever been a Christian and said “I can’t remember”. 

37. It was put to the applicant it was known to the Tribunal that ethnic Koreans in China faced little if any discrimination, were well educated, relatively prosperous and were considered as a model minority ethnic group. He responded by staying “it happened before but probably not now”.

1. It was put to the applicant the Tribunal had serious doubt he had ever been a Christian and wasn’t one now. He responded by saying “I went to a church by referral from a pastor”.

2. It was put to the applicant the Tribunal had a concern that his claims were fabricated, particularly as significant parts of his employment history were not true and he could not recall aspects of his own history detailed in the claims.  He said “I just simply told [the agent] my story and background and I didn’t hear anything after that”.

3. It was put to the applicant that, even if he was Christian, his limited interest and activity for the past 17 years indicated that if he returned to China he could continue that same limited activity and no one would be adversely concerned. He responded by saying “it’s been a long time”.

4. In conclusion he said he had got used to living in Australia and didn’t want to return to China. He can earn money here and it would be hard for him in China. It is “really cold in winter” where he comes from and “I don’t think I can survive” … I don’t think I can live there”.

5. The country information is as detailed in the delegate’s decision. The applicant has provided no country information in support of his claims.

   FINDINGS AND REASONS

6. I have carefully considered the claims and evidence of the applicant. I have taken account of the significant length of time between his application and the delegate’s decision and subsequent correct notification and his now appearing before the Tribunal. Whilst the period of time is significant I do not accept that it explains the applicant’s ignorance of Christianity or his lack of knowledge or detail of his claims as made by his [agent]. I have serious concerns as to the truth of the applicant’s claims and consider he is not a witness of truth. I find he is not a credible witness. In particular:

   ·     The applicant is generally ignorant of Christianity and could tell nothing of Christian belief. I do not accept as reasonable his explanation that it has been a long time since he has attended a church. His lack of knowledge is indicative of someone without any knowledge or background in Christianity. I do not accept as reasonable to believe he was bought up in a Christian household, that his parents were Christian, that he attended underground Christian churches. I do not accept he is a Christian.

   ·     The applicant’s employment history and history of divorce was not disclosed truthfully in his application. He blames this on [his agent]. That is probably true however it casts significant doubt on any of his claims and evidence. It is difficult to understand why a faked employment history would be given by someone and why no mention of the divorce would have been made. That this false detail was provided indicates that little reliance can be placed on any of the other claims and information.

   ·     The applicant made no claims at hearing of any significance of any discrimination on account of being ethnic Korean, and yet this forms a core aspect of his original claims. Whilst I am prepared to accept that he is ethnic Korean I consider he has not faced any form of discrimination. As discussed with him at hearing it is known to the Tribunal that Koreans in China are well educated, relatively affluent and are considered as a model ethnic minority. I do not accept he has faced any discrimination on account of this and do not accept he would do so in the reasonably foreseeable future. I find this claim was fabricated.

   ·     The applicant’s significant and often mentioned reasons, for not wanting to return to China, are not matters that are Convention related. They concern his lifestyle in Australia, his work here and being here a long time. His concerns about return relate to age, difficulty in finding work, no one to look after him, and the adverse weather. None of those matters are of a nature or seriousness as could be considered as persecution a s meant by the Convention of section 91R(2) of the Act. I do not accept as reasonable to believe that he would not be able to find work.

   ·     The applicant has approached on at least [number] occasions over the past 20 years the Chinese Consulate General in [Australia]. He has been issued on each occasion with a new travel document. I do not accept as reasonable to believe that he did it through someone else. I find he obtained the documents. I find that in doing so this indicates not only that he has no concern about approaching his government but also in the documents being issued to him that they have no adverse concern about him.

   ·     The applicant claims in his application that having made an application will be of concern to the authorities. He did not repeat this at hearing. I consider this part of his application also to have been fabricated by his advisor. I do not accept the authorities will either know or care about such a matter. They would be well aware of people making opportunistic claims and applications overseas.

7. I find the application to be opportunistic and made so as to enable the applicant to work and stay in Australia. I do not accept any of his claims of being harmed for any reason in China as true and find he is not a credible witness.

8. Overall, I find that the applicant’s fear of harm on return to China in the reasonably foreseeable future is not well founded. I find that there is not a real chance he will suffer serious harm amounting to persecution. I am satisfied that the applicant does not have a well-founded fear of persecution for reasons of a Convention ground.

9. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in cl.866.221(2).

10. Having concluded that the applicant does not meet the refugee criterion in cl.866.221(2), the Tribunal has considered the alternative criterion in cl.866.221(4).

11. This requires a consideration of whether 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 (‘the complementary protection criterion’).

12. As detailed above, ‘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.

13. As detailed above, and for the same reasons, I do not accept that the applicant is a credible witness. I do not accept as reasonable to believe any of his claims as to why he departed from China other than that he was seeking work in Australia and was looking for an opportunity to do so. I find the application is opportunistic. I do not accept he had any ongoing issues or concerns in China other than his age, being away for 20 years, and consequently his being unfamiliar with China now. Whilst these may cause minor inconvenience they are not of a nature or significance as could be considered as significant harm. Whilst he may have some difficulty in obtaining work I do not accept that he will not be able to do so. He has worked continually in Australia for 20 years and worked continually in China after finishing school. There is no reason to think he would not be able to do so again in China. I do not accept he is of any adverse interest to the authorities. I do not accept these matters will cause him any concern on return to China. I do not accept that this is significant harm as meant by section 36 (2A).

14. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under cl.866.221(4).

15. There is no suggestion that the applicant satisfies cl.866.221 on the basis of being a member of the same family unit as a person who satisfies cl.866.221(2) or (4) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in cl.866.221 for a protection visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Chris Keher
    Member