1417460 (Refugee)

[2015] AATA 3758

1417460 (Refugee) [2015] AATA 3758 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417460

COUNTRY OF REFERENCE:                  China

MEMBER:Geraldine Hoeben

DATE:26 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 26 November 2015 at 2:56pm

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 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a citizen of China, applied for a protection visa (PV) [in] October 2013. The applicant had been granted three student visas since 2008. His last student visa was refused [in] November 2012. He lodged a review of that decision with the MRT and the decision was affirmed on 13 September 2013. [In] October 2013 a protection visa application (PVA) was lodged. The department’s delegate refused to grant this visa [in] October 2014.

3. The original hearing of 30 September 2015 had been adjourned. The applicant then appeared before the Tribunal on 18 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from: [Father A], [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The Tribunal informed the applicant, inter alia, at the commencement of the hearing that, while it had familiarised itself with all the documents and items associated with his case so far, the hearing would be dealt with on a rehearing basis, that is, afresh from the beginning. The applicant was put on notice that he should not take for granted anything given or stated earlier in support of his application as being automatically considered by the Tribunal. The Tribunal informed the applicant that he would need to present all the evidence at the hearing that he wished for it to consider in support of his protection visa application (PVA): AG v DPP [2015] NSWCA 218; Fox v Percy 214 CLR 118.

11. The issue in this case is that the applicant became a Catholic in Australia in 2012. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. Claim

    The applicant claims that he became a Catholic in Australia in February 2012. He claims he will be persecuted if he returns to China because he sent Catholic information, via a Catholic website, to two Catholic friends in China in February 2012. He claims the Chinese government must go to the source, ie the applicant, who he claims would be regarded as responsible for disseminating the information. He states that the Chinese Constitution does not allow Chinese activities to be manipulated by foreign influences.

    The Tribunal notes that the delegate’s decision had been attached to the review application.

13. Findings and reasons

    a)Circumstances Surrounding the application

    The Tribunal, after going through the chronology of the applicant’s various student visas, their time of cessation, his three entries into China and exits from China between 2008 and June 2012, with which the applicant concurred, the Tribunal raised the issue of why did it take him twenty months to lodge his PVA ([in] October 2013) from when he began sending the information (February 2012) to his friends in China. After a long pause the applicant stated that the answer may take a long time. There was another long pause and the Tribunal suggested he might answer the question directly instead of giving an introduction to his reply. There was another long pause and he asked the Tribunal to repeat the question which it did. There was another long pause and he said it was because of his two Catholic friends. In asking for details there was no response except another long pause.

    The applicant confirmed that on the occasion he returned to China between 2011 and 2012 he was never questioned by the authorities or subject to harm because he was not there long enough for this to happen. The Tribunal replied that, irrespective of how long he was in China, if he was of any dverse interest to the authorities, he would have been name-checked at the very least on either departure or entry into the country. There was a long pause but no further information was given.

    The applicant then spent some time talking about his belief in god and how everything is pre-determined. The Tribunal suggested that the applicant concentrate on the question which was repeated again at the applicant’s request but put in a chronological fashion, he answered that when his friend was arrested, who remained un-named,  in October 2013 he was implicated to the Chinese authorities. No details were provided about the circumstances of this implication

    At this point the MA asked for an adjournment so that he could talk to the applicant about being more direct about his answers. The adjournment was granted.

    After the adjournment the applicant asked that the question be put to him again and it was. The applicant then said that he had sent a Catholic web site named [name and link], formerly known as, [name], to his friend in China because the he thought the Catholic information contained within it would help him. He said that since that time the Chinese authorities have been taking a more forceful view of websites and his friend’s shop had been searched. He said he was told by his other Catholic [friend] that he had been implicated. Despite prompting no further details were given regarding the circumstances of the claimed implication.

    b)Knowledge of Catholicism

    The Tribunal asked the applicant a number of questions regarding his knowledge of Catholicism. He was very familiar with what a sacrament was and knowledgeable regarding the seven sacraments. The applicant was familiar with the significance of  Baptism for Catholics. He was able to identify the most important event in the Catholic calendar being Easter and was able to summarise the significance of Holy Thursday, Good Friday and the event of the Resurrection and its significance for Catholics on Holy Sunday. The applicant was able to talk confidently about Lent and its significance for Catholics just before Easter.

    The Tribunal took into account a number of documents the applicant submitted at the hearing including, inter alia, a Baptismal Certificate from [a church] dated [in] December 2013.

    The Tribunal also took oral evidence from two witnesses namely:

    ·     [Father A];

    ·     and [Ms B].

    [Father A] gave his account of the persecution of Catholics in China and, in particular, that Western priests were only able to minister to westerners and generally to western-born parishioners but not Chinese-born Chinese Cathyolics. The latter were required, by the Chinese authorities, to have Chinese priests minister exclusively to Chinese parishioners. He said the Chinese authorities discriminated against Chinese-born Catholics as there was no freedom of choice for where or how one could worship their religion. He said he recalls giving a letter to the applicant stating he was a regular church attendee at [a church]. When asked about how he would have known about the applicant’s attendance at church given the large size of the congregation and he replied that the only way he knew was if the attendee told him that they were a regular attendee. He agreed he wrote many such letters and that he relies upon the honesty of those requesting that he state in the letters: that they attend [the church] and they are regular church-goers.

    [Ms B] gave evidence that the applicant was a regular church-goer and that he helped around the church from time to time. He has attended some catholic processions in particular [one walk in] June 2014 in which the applicant was [actively involved].

    The Tribunal found these witnesses to be reliable and has given their evidence some weight as to the applicant’s genuine belief in and practice of Catholicism.

    c)The applicant’s Catholic-related activities in Australia

    The applicant affirmed the fact that he has not practised Catholicism in China and has not been subjected to any harm there because of his religious belief. He confirmed that he found his belief for Catholicism in Australia.

    The applicant stated that he has gone to mass at catholic churches in both [suburb] and [suburb]. He regularly attends bible reading and attends prayer groups at evenings on Friday evenings. He states he occasionally attends Mass at [a church] in the city.

    He says he often hands out Catholic pamphlets outside church when mass has concluded.

    The Tribunal finds that the evidence of the applicant and the witnesses cumulatively leads the Tribunal to the conclusion that the applicant is a genuine practising Catholic. The Tribunal informed the applicant of this finding at the hearing.

    d)The applicant’s perceived fear of harm

    The applicant believed that the searching of his friend’s shop and questioning of him by the authorities in October 2013 was related to one of his visits to China – the last being in May 2012. He repeated that [his] other Catholic friend, had told him that he had been implicated by his friend, the shop-owner. The Tribunal said that it was unlikely this could happen, as there was a sixteen month gap between his last visit to China and the searching of his friend’s shop.  He did not respond to this query. He continued that he would still be seen to be the source of the Catholic information and would, therefore, be arrested on return. The Tribunal replied that it would be difficult for the authorities to link him in any way to the websites. It continued that this possibility was highly remote. The Tribunal asked for further information to support the basis for his opinion several times and repeated the question as requested by the applicant on two more occasions but no further details were obtained.

    The applicant then proceeded to tell the story of Abraham, Cain and the ram. The applicant argued that his story might seem to be nothing more than an effort to obtain a PVA but to him, he saw that the ram was actually his friend. The Tribunal questioned the appropriateness of this religious analogy to his claim but no further details were given.

    In the answering of questions the applicant did not display any level of fear of harm if he returned to China in the foreseeable future. If the applicant had been in any genuine fear of harm because of his belief, there would have been no or little delay in the lodging of his PVA. Indeed, the Tribunal was of the belief that the applicant was more content to display his knowledge of Christianity generally and its parables as a means of an end in itself, rather than anything to do with persecution.

    The vagueness of the applicant’s replies, his non-responsive answers, delays and numerous requests to repeat questions and the lack of substance and details in his replies has lead the Tribunal to the conclusion that the claim is not authentic. Even if his un-named friend was questioned by the authorities it would be difficult, if not entirely impossible to link the applicant specifically to any web-sties. Alternatively, based on the same findings it is highly probable that the applicant did not send any material at all to anyone in China at any time. The Tribunal believes that this claim is nothing more than a story and is not based on fact.

    e)Further Findings

    The Tribunal does not believe the applicant to be a person of credit. The applicant has given no plausible reason to excuse the twenty-month delay in lodging his PVA since his last visit to China.  There were lengthy delays in the applicant’s answering questions and a lack of directness or details and a total lack of any frank and open response to the Tribunal’s queries.

    The applicant did not establish any realistic causal relationship between the searching of the friend’s shop and his claim. The Tribunal believes that, as foreshadowed above, either there was no searching of the friend’s shop or, alternatively, it was a fabricated story to enhance the applicant’s PVA.

    There has been no credible evidence to indicate that the applicant was of any adverse interest to the Chinese authorities at any time since becoming a Catholic in Australia. The applicant was able to seamlessly come in and out of China on several occasions without attracting the notice of the authorities.

    The applicant, in the Tribunal’s opinion, did not express at any time a genuine fear of harm, based on any reliable information on returning to China, in the foreseeable future because of his religious belief. In conclusion, the Tribunal believes the applicant’s PVA to be a story designed to enhance his chances for remaining in Australia on a permanent basis.

    CONCLUDING PARAGRAPHS

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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

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

    Geraldine Hoeben
    Member