1415902 (Refugee)

[2016] AATA 4161

1415902 (Refugee) [2016] AATA 4161 (25 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415902

COUNTRY OF REFERENCE:                  China

MEMBER:Josephine Kelly

DATE:25 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2016 at 11:22am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants claim to be citizens of China.  They applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] September 2014. The applicants provided a copy of the delegate’s decision to the Tribunal.

3. The applicants appeared before the Tribunal on 17 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   SUMMARY OF THE LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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).

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. 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. 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 THE CLAIMS AND EVIDENCE, AND FINDINGS

   The issue in the case

9. The issue in this case is whether the applicants’ claims for protection are credible. For the reasons that follow, the Tribunal affirms the decision under review.

   Background

10. The following findings are not contentious.  They are based on information the applicants have provided to the Department and the Tribunal in writing, including the delegate’s decision record.

11. The primary applicant, [name], was born in Fujian Province, China, on [date].  Her spouse is the second applicant.  He was born on [date].  The third applicant is the child of the primary applicant and the second applicant and was born on [date].

12. Based on the passports of the primary and second applicants and the third applicant’s birth certificate, the Tribunal finds that they are citizens and nationals of China.

13. The Tribunal accepts that the second and third applicants are members of the primary applicant’s family unit as defined in s 5(1) of the Act and Regulation 1.12(1).  The Tribunal also accepts that the primary applicant and third applicant are members of the second applicant’s family unit.

14. The primary applicant arrived in Australia holding a student visa [in] June 2007 with her mother to study language and complete high school.  Her mother held a Student Guardian visa and has returned to China.

15. The primary applicant departed Australia [in] January 2009 and returned [in] February 2009.  She has not departed again.

16. [In] March 2011, her student visa ceased and she became unlawful.  [In] July 2011 the Compliance Field Team located the primary applicant and detained her until she was released [in] October 2013.  

17. The primary applicant was previously refused a protection visa [in] August 2011 and the Refugee Review Tribunal affirmed that decision on 1 November 2011.  The primary applicant sought judicial review in the Full Federal Court which was dismissed [in] July 2012. Thereafter she took other administrative steps under the Act. She lodged her current application [in] November 2013.  She attended a departmental interview [in] May 2014. A recording of that interview is before the Tribunal.

18. The second applicant arrived in Australia holding a student visa which was granted [in] April 2008. His visa ceased [in] March 2011 and he became unlawful.   He was located by the Compliance Field Team and detained [in] July 2011 until [date] October 2013. He applied for protection [in] August 2011 as a member of the family unit.  The application was refused [in] August 2011.  That decision was affirmed by the Refugee Review Tribunal on 1 November 2011.  The Full Federal Court dismissed an application for judicial review [in] July 2012.  The second applicant took other administrative steps under the Act.  He lodged his current application as a member of the family unit [in] November 2013.

19. The third applicant was unlawful at the time of his birth on [date] as both of his parents were residing in detention.  The Tribunal accepts that the primary and second applicants married in [detention] and provided a copy of the marriage certificate to support the first protection application. 

    Jurisdiction

20. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the claims of the primary applicant only in relation to s.36(2)(aa).

21. The second applicant applied for both protection visas as a member of the family unit. He made claims for protection based on his religion during the Tribunal hearing.   The Tribunal has considered his claims against the refugee and complementary protection criteria.

22. This is the first application made by the third applicant.  He applied as a member of the family unit of the primary applicant. When asked at the hearing if she made any claims for the third applicant, the primary applicant said that she makes no claim separate from her claims. The second applicant made no claims on behalf of the third applicant.  The Tribunal has considered the third applicant’s application in respect of his being a member of the family unit of each of the primary and second applicants.

    The primary applicant’s claims for protection

23. The primary applicant made the following claims for protection in her statement accompanying her visa application and received by the Department [in] November 2013.

24. Her parents are Christians.  She followed her parents in their beliefs from primary school age. However, she received an atheist religious education from the Chinese Communist Party (CCP) at her school. They had to attend worship secretively because they feared being discovered by the government.

25. In 2009, the primary applicant travelled to China to visit her parents and her [relative] who was in poor health.

26. Between July 2007 and June 2008, the primary applicant went to [church] in [city] almost every Sunday for worship. Between June 2008 and July 2009, she attended an Anglican Church in [suburb] on Sundays. Between August 2009 and November 2010, she and her partner sometimes went to [a] Church in [suburb]. They participated in church activities in [the] Detention Centre after July 2011.

27. The applicant spoke to her parents in China every month. When she called [in] May 2011, a Sunday evening, the father was not home and she spoke with her mother. Her mother told her that one week earlier, [in] May, [number] Christians were gathering at her parents’ home when four policemen rushed in and everyone was taken to the [township] Police Station. They were all interviewed separately and the police detained the applicant’s father for [number] days because he organised the home church gathering. The applicant was informed that her father was released [in] May 2011.

28. The applicant is scared to return to China because she will attend underground church gatherings and will be persecuted by the government as a result.

29. The primary applicant has a young son and is currently pregnant with her second child.

    Documents provided in support of the applicants’ claims for protection

30. The applicants provided to the Department a medical certificate from [a] Health Care Centre dated [in] May 2014 which certified that the primary applicant “has been pregnant and her due date was [date]”.

31. The applicants provided to the Tribunal copies of the following documents in support of their claims for protection [in] January 2016, after the hearing:

    ·A letter of support dated [in] December 2015 from an Associate Pastor of [Church 1] which states that the primary and second applicants began attending the  [Church 1] service held in [the] Detention Centre every Sunday, in July 2011, have regularly attended a mid-week home fellowship group of [Church 1] since March 2014 and have attended the Sunday service held in the [Church 1] Chapel at [suburb] on an occasional basis since March 2014.  The pastor recently conducted a child dedication service for the third applicant [in] November 2015.

    ·A [Church 1] Certificate of Dedication for the third applicant dated [in] November 2015.

    ·Certificates of Water baptism by [Church 1] for the primary applicant and second applicant dated [in] January 2012.

    ·A letter dated [in] September 2012 from the rector of [Church 2] which states that the primary and second applicants “have been attending our Sunday Services” and their son was born on [date], noting that a service for his baptism was scheduled for 10:30 am [in] October 2012.

    ·Five coloured photographs of a structure.

    Consideration of the primary applicant’s claims and evidence

32. The primary applicant’s evidence about her claim for protection based on her religion was vague and inconsistent.  She said that she cannot go back because of what she wrote in 2011, because of religious persecution.  Her father was previously involved in Christian stuff that was not allowed.  Her whole family was Christian from the generation of her grandmother and grandfather.  Her mother and her parents are Christian. There is an annual gathering every year at her home for one or two weeks.  She seemed to say that that was “closed” but when the Tribunal asked her about that, she said that she was not involved and does not know much about it, and to ask her husband. He was involved in that when he was in China. When she was in China, it was for adults.  She was not involved. She then said that the gathering was not held at their place but at a prescribed place somewhere else.

33. Her evidence about where she went to school and where she lived was not very clear.  Doing the best it can, the Tribunal understood the applicant to have given reasons why she was not living at home, and therefore why her parents did not involve her in church gatherings.  Those explanations included that she lived with her grandparents in the country from when she was six or seven, and then arrangements were made for her to live with teachers during the week and return to her grandparents at weekends. She also said that from the age of 13 or 14 to 17 she stayed after school hours with her mother who was renting separately from her grandparents.  She also said that on Sundays she would go to church with her paternal grandparents. She was a Christian from birth and was baptised, like her son.  It was a one storey building and displayed a cross inside.  There were no signs of what it was outside. She stopped going when she came to Australia.   When asked if she had attended that church from birth, the primary applicant said that she does not remember as a child.  She remembered that when she travelled back, her paternal grandparents would take her. She had no other involvement in the Christian church.

34. The Tribunal does not accept that that evidence is consistent with her claim to have followed her parents in their beliefs from primary school and that they had to attend worship secretively because they feared being discovered by the government. Attending a dedicated place of worship as she described, is not consistent with worshipping secretively because they feared being discovered by the government.

35. The primary applicant claimed that the church she and her parents went to was not permitted, not registered, and she thought she had previously submitted information about it being located in the country side and being demolished in the last year or two.

36. The photographs submitted after the hearing show a single storey rectangular stone structure with an entry with no door. Internally, there are pillars apparently supporting a concrete platform which extends around the internal perimeter of the building.  It was about three metres wide at the first floor or roof level.  There is no roof over the structure beyond the platform.  Five men are standing on the platform, two of whom are wearing hard hats and appear to be working on the external stone wall which is about a metre higher than the platform.  Building materials that are visible include stone blocks, iron piping, metal roofing, and wooden poles. It appears that the building is being repaired, having fallen into disrepair. It has not been “demolished”. Internally, lighting fixtures hang by wires or slope at odd angles from the pillars. There is a raised area with three steps leading up to it running along one wall.  The building may have been a church or a hall. A structure of that kind does not support a claim that worship there was done secretively.

37. When the Tribunal put to the primary applicant that it had difficulty accepting that she was at a real risk of significant harm if she returned to China, the primary applicant said that her parents would not allow her to go back.  When she was detained in [detention centre] she wanted to return to China but her parents would not allow it.  Her mother told her what had happened to her father.  He had been arrested at a church gathering and cautioned.  She does not know the details of what happened. She is not sure if her parents are still going to the closed church.  The primary applicant said that the second applicant’s mother started to go to such a church a few months ago and does it secretly.  The second applicant’s [relative] is going as well.

38. When asked whether she had been to church in Australia, the primary applicant said that someone took her there.  She does not know the name.  She kept moving and would go to different places. She currently goes to [Church 1], which she has been attending for more than six months.  There are services in English and Mandarin. Her son was dedicated “to the Lord Jesus Christ” [in] November 2015 at [Church 1], because a baby cannot be baptised because they are not “self-conscious”. The church believes that a person must voluntarily accept God. 

39. The Tribunal accepts that the dedication took place. However, the primary applicant is not consistent in her beliefs. The letter dated [in] September 2012 from the rector of [Church 2], states that a service for the third applicant’s baptism had been scheduled for 10.30 am [in] October 2012, although there is no evidence that the baptism took place.   

40. The Tribunal does not accept that the primary applicant has been a consistent worshipper in Australia.  It accepts that she and the second applicant got involved in [Church 1] while in detention and were married, and baptised [in] January 2012, having first applied for protection [in] August 2011 on the basis of her religion. The letter from the [Church 1] pastor says that both the primary and second applicants started attending the [Church 1] service conducted every Sunday in [detention] in July 2011.  They were detained [in] July 2011. 

41. The Tribunal does not accept that they regularly attended the [Church 1] service in detention after they obtained the baptism certificates and until they were released in October 2013 because they attended [Church 2] for a period from June to September in 2012 according to the letter from the rector of that church.  At the hearing, the primary applicant said that before attending [Church 1], she went to [Church 2].  She could not remember the name of [Church 2] beyond it being “Saint something”. She claimed that she attended every Sunday if she was available and changed churches because the child was very noisy and [Church 1] has a place to look after him.

42. The Tribunal does not accept that the primary applicant regularly attended [Church 2] other than during the period June to September 2012. The Tribunal accepts that the applicants reconnected with [Church 1] in March 2014 based on the letter from the pastor. There is no evidence that the third applicant was baptised at [Church 2].  The letter from the rector of [Church 2] is dated [in] September 2012.  Having scheduled a baptism ceremony for their son about [number] weeks later, on October 2012, that he was not baptised at that church is not consistent with the applicants’ continuing to worship there regularly for another 17 months until moving to [Church 1] in March 2014. 

43. Reconnecting with [Church 1] in March 2014 is consistent with the applicants’ seeking to support the primary applicant’s claim for protection based on her religion following the application for protection being made in November 2013.

1. The extent of the applicant’s understanding of Christianity is consistent with some participation in Christian church and fellowship in Australia. She said that she learned about the 10 commandments in Australia but her family knows about them, and she did not worship in China. That statement is inconsistent with the essence of her claim.  She was able to provide information when asked direct questions, for example, why the religion is called Christianity. However, when asked about the importance of her religion to her, she was vague and unpersuasive. 

2. The Tribunal does not accept that the primary applicant is a genuine practising Christian.  It finds that she has been married and baptised and attended various Christian services and fellowship meetings in Australia at times for the purpose of obtaining documents to support applications for protection based on her Christianity.  She and the second applicant scheduled their son’s baptism while their claims were being considered. They have re-engaged with [Church 1] since lodging the subject applications. Their son’s dedication was a matter of weeks before the Tribunal hearing. The Tribunal finds that the scheduled baptism and dedication were for the purpose of obtaining documents to support the primary applicant’s claims for protection.

3. At the end of the hearing the primary applicant maintained her written claim that she would attend underground church activities if she returned.  She said that the Tribunal should ask the second applicant. She knows nothing about it.  If she goes back she would normally go with the paternal side, her [relatives].  She does not know what she claimed at the last interview. 

4. Not knowing what she claimed at the last interview is not consistent with those claims being true.  If there was a genuine basis for what she said at the interview she would have been able to articulate them.

5. Her claim that she will attend the underground church with her husband and his family if she returns to China depends on the Tribunal accepting the second applicant’s claims made at the hearing.  For reasons set out below, the Tribunal does not accept the second applicant’s claim about being a member of the closed or family church in the past or will be if he returns to China or that he will practise Christianity at all if he returns.  It therefore does not accept the primary applicant’s claim that she will participate in those activities with him.  The Tribunal does not accept that there is a real risk that she will suffer significant harm because she will attend the underground church with the second applicant.

6. The Tribunal finds that the pregnancy referred to in the written application and supporting medical report ended in a miscarriage.  The primary and second applicants have only one child. The questions it asked the second applicant about that matter at the hearing were based on a misunderstanding of the evidence.  There was no suggestion that the applicant was pregnant at the time of the hearing.

7. The Tribunal therefore does not accept the primary applicant’s claim that she will be arrested and forced to have an abortion because she has violated the one child policy. 

8. For the above reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant's being removed from Australia to China, there is a real risk that the primary applicant will suffer significant harm.

   Consideration of the second applicant’s claims and evidence

9. When asked at the Tribunal hearing if he wanted to say anything, the second applicant said the following. 

10. He is also Christian. When he was a child, he was part of the closed church, what they call the family church.  He spent ten days at the age of ten being educated about the church.  Every morning he got up and attended a prayer session, had breakfast, and then someone preached for four or five hours until about 1 pm.  In the afternoon they sang hymns and had a sharing session led by followers. In the evening was another preaching session for one to two hours.  At the end of the ten days, each person was asked if they accepted what they had been told and if they felt redeemed and accepted Jesus Christ.

11. He said that “you were not supposed to walk out of the room”, that is what he means by closed.  His mother told him he was not supposed to let anyone know about the whereabouts of the session because the police would cause trouble. 

12. After that instruction, the second applicant attended gatherings on Wednesday, Saturday and Sunday for one or two hours.  No pastor was present to preach.  Someone who was experienced came and shared with the gathering, reading the Bible. He had asked his mother for a picture or a written statement from a pastor but she said that she could not do that. The internet had developed and she feared that it would be exposed.

13. His mother has been involved in this church for a very long time, all his life. She still goes every Wednesday, Saturday and Sunday.  There are meetings of about [number] people. They move to different houses every two weeks in villages that are close by.  When the Tribunal commented that his wife had said that his mother had only recently started to go to this church, the second applicant said no, she had always gone to it.  He then said that his mother went to cook at a ten day session that occurred one or two months ago. She went at night and returned early in the morning.  He asked his mother where she had been but she would not say and his father did not know where she had been. His father went on Sundays.

14. The second applicant said that he was claiming protection for that reason.  His [relative] was arrested once when the second applicant was young.  His mother told him it was because of his religion.  The second applicant knew about such persecution and it continues to exist in China today. Later at the hearing he said that his mother would not tell him why his [relative] was arrested because she feared that if he heard anything bad about the church, he would not go. After a few days his [relative] returned.  His [relative] was not arrested during a gathering. He took them to the church on a daily basis. When asked if anything else had happened to his family, the second applicant said that is all he knows.

15. When asked if this was the first time he had made this claim, the second applicant said that he had talked briefly to his wife about it.  She is always the one spoken to.  When asked why he had not made an application when he was in [detention], the second applicant said that the migration agent said that the present case has already been made and what the second applicant said was not included. He was told that the case simply has to be rerun.  That is why the interview was conducted with his wife and not him. He also said that he was part of his wife’s application and not sure if he could apply in his own right if you have an ongoing matter.  The application relates to their beliefs that are of the same nature.

16. The second applicant said that going back to Christian activities in China is not safe.  Family based churches are not allowed by the government.  He cannot go to a registered church in China because the government stipulates what you can say.  In his church, they can show their appreciation of Jesus. 

17. When the Tribunal said that it had concerns he was making up the claim for the purpose of this application, the second applicant said, if that is your view. He was able to give some information about the birth, life and death of Christ and the difference between the Catholic and Protestant churches.   He said that the Old Testament was about Christ’s life before he died and some part after his death.  The New Testament is about his preaching and evangelising.  When pressed about the Old Testament talking about Christ’s life, the second applicant said yes, about his parents and where he was born.  When the Tribunal commented that he did not know the Bible very well, he said that he was not an expert on the Bible.  Frankly, if he reads it he wants to sleep. He said that it is indeed his problem.  He is yet to gain a deep knowledge of Jesus Christ. 

18. He gave the same history as his wife had given of attending [Church 1] for eight or nine months and [Church 2] before that, and the same reason for changing churches.

19. The second applicant’s knowledge of Christianity is consistent with the attendance at [Church 1] services and [Church 2] for periods while in detention, and at [Church 1] since March 2014, for the purpose of obtaining some knowledge of that religion and supporting documents for the purpose of seeking for protection based on that religion.  

20. The Tribunal does not accept that his knowledge of Christianity and the Bible was consistent with his claimed history of participation in Christian services, Bible reading, and fellowship in China and in Australia.

21. The Tribunal finds his raising this claim for the first time at the Tribunal hearing in relation to his second protection application is inconsistent with the claim being true.  In making that finding, the Tribunal has taken into account his explanation, set out above but does not find it convincing. The history of the applications for merits and judicial review and the applications to the Minister shows a determination to obtain protection in Australia and an excellent understanding of the steps available to do so.  Having been unsuccessful after so many efforts and not having raised his claims before, is inconsistent with their being true.

22. The Tribunal finds it implausible that his family, including his mother, father and [relative] and he when he was in China, could attend underground church activities so frequently over such a long period of time with only one arrest for a short time and no other trouble from the Chinese authorities.       

23. It does not accept that his mother, father or [relative], participated in the activities of a closed or unregistered church in China in the past or do currently, or that his [relative] was arrested for doing so.

24. The Tribunal does not accept that the second applicant attended the underground or family church when he was in China as he claimed or that he will attend the underground or family church or practise Christianity at all if he returns to China.

25. The Tribunal is not satisfied that there is a real chance that the second applicant will suffer serious harm in the reasonably foreseeable future if he returns to China for a Convention reason.

26. The second applicant does not have a well-founded fear of persecution for a Convention reason.

27. Having made that finding, it is necessary to consider the complementary protection criterion.

28. Because the Tribunal does not accept that the second applicant attended the underground or family church when he was in China as he claimed or that he will attend the underground or family church or practise Christianity at all if he returns to China for the reasons given above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant's being removed from Australia to China, there is a real risk that he will suffer significant harm.

29. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    Josephine Kelly
    Senior Member