1417624 (Refugee)

[2015] AATA 3968

1417624 (Refugee) [2015] AATA 3968 (23 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417624

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Westaway

DATE:23 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 23 December 2015 at 5:27pm

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 who claims to be a citizen of China, applied for the visa [in] May 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 13 October 2015 to give evidence and present arguments. 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.

   RELEVANT LAW

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.

   Refugee criterion

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. 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.

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)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

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 ‘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 in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

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.

18. 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

19. 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

20. The issue in this case is whether the applicant’s claims are credible and whether the applicant has a real chance of serious harm or a real risk of significant harm if he returns to China on the bases of his Christian beliefs and membership of the Local Church. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

21. The applicant is a [age] year old male from [Fujian] province, China. He arrived in Australia [in] March 2007 on a [student] visa. A further [student] visa was issued [in] June 2007. The applicant’s visa was cancelled as he did not commence his course of study. The applicant remained unlawfully in Australia until  [May] 2013 when he applied for the protection visa the subject of this review.

22. The applicant supplied the Tribunal with a copy of the original decision made by the Department of Immigration.

23. The applicant appeared before the Tribunal on 13 October 2015. He confirmed he prepared his original visa application with assistance. He stated that the material was prepared by friends. However he confirms the accuracy of the application. He stated he understood why his visa was refused claiming that the decision maker did not accept that he was a devoted Christian.

24. The applicant claims to be a Christian from the local church. He has only lived in China and Australia. His parents are still alive and he also has [a sibling]. His mother stays at home and his father and [sibling] work in a [factory].

25. He confirmed that his parents were subject to a fine for having an additional child which they paid. He remains in regular contact with his family and calls them weekly to fortnightly.

26. He left China because agents spoke of good things about Australia and how you can get a great job. He also stated that he came because he belongs to a local church and he can be prosecuted by local authorities.

27. If he returns he fears that because he is a Christian who will continue to participate in activities in a local church he will be prosecuted. The type of prosecution he fears includes arrest, being locked up and tortured and that they might interrogate him.

28. The applicant claimed in his visa application that he was an ‘ordinary Christian’ in China. The applicant claims the local government tried to prevent him from leaving for Australia because he was Christian. The applicant stated that his parents packed his clothes, bought his ticket and gave him A$1,000 and he left for Australia.

29. The applicant stated that his parents were detained, fined and harmed. This occurred after he had left for Australia.

30. The Tribunal asked the applicant why there was a delay in applying for his protection visa and why his student visa was cancelled. The applicant stated that he came to Australia to study however his parents lost their jobs so he had to work as they could not afford his school fees. The applicant stated that he therefore had to drop out of school in Australia.

31. The applicant provided a submission to the Tribunal prior to hearing. In the submission the applicant claimed that he has been attending at his local church in Australia and China and is a devoted Christian. He claims he is a member and follower of the Local Church.

32. The applicant confirmed in his submission that prior to coming to Australia his parents were detained and questioned by local police because of their attendance at the local church. The applicant also claims that his mother was arrested [in] October 2014 when attending a local church gathering and she was detained for [number] days at [a] Detention Centre. She was questioned, assaulted and intimidated.

33. The applicant also claimed in his application that he had escaped harm from a group of cadres who had heard that he had been granted a visa to Australia and because he was a Christian had attempted to prevent him from leaving. However, the applicant claimed that when they came to his home he escaped and hid.

34. He also claimed that the local church is considered an evil cult and he fears being harmed on return to China because he insists he will continue to practice his religious beliefs.

35. The applicant provided the following information to the Tribunal at the hearing:

36. His family are all Christian and they all attend church every Sunday.

37. He was introduced to the local church by his mother. His mother has always been a Christian from the time he can remember.

38. The applicant stated that his local church in China congregates in people’s private homes. He refers to them as brothers and sisters. They change homes regularly. There is a roster of homes and the applicant confirmed that his family have never hosted a gathering in their home because his home is located near a main street and too obvious and everyone would risk being noticed and the congregation is noisy and they will probably be arrested.

39. The applicant stated that about [number] people attend the Church. There is a leader who is the elder. The applicant was unable to provide the actual name of the church.

40. He confirms that he attended the church in Australia but is not certain if he was known by the elders of the church.

41. He confirms they sing hymns and pray and eat wafers and drink wine. He said they sing hymns like ‘Live the life of the Church’. He confirmed the services are held from 10am to midday and they read from the Bible and talk about values. He stated that there are seven values. He was able to name six and stated them as one god, one law , one faith , one body and one soul, one baptism.

42. He was asked what one baptism means. The applicant stated “live, die and reincarnate with the Lord and bury with the Lord”.

43. The applicant stated that he was baptised when he was younger but he didn’t remember.

44. The Tribunal asked the applicant if he understood the Ten Commandments  and he stated yes, he stated that they are – “Don’t call the name of Jehovah, you can’t worship statues, not kill, not greedy and desire other people’s property or wives”.

45. The Tribunal asked the applicant to confirm who Jehovah is. The applicant stated “he is God creator of all people”.  He said you cannot call his name directly

46. The applicant stated that he attends church in Australia. He gave the [address] and the service is here on the first and third week of the month. He confirmed that [name] is one of the elders of the church. He stated that on the 2^nd week he goes to [location] and on the 4^th week of month he attends [another location].

47. He claims he did not go to Church very often because he could not get there and he had no money. He is now able to work so he can attend.

48. The Tribunal asked the applicant if he attended other churches and he confirmed that he did attend the church across the road from [location]. The Tribunal knows this to be [a church]. The Tribunal asked the applicant why he stopped attending this church and he stated that it is Catholic and not his belief. The Tribunal put to the applicant that it was actually an Anglican church. He said that his friends told him.

49. The applicant stated that the local government in China refer to his congregation as Shouters.

50. The applicant stated that he lives in [suburb]. The Tribunal asked the applicant why he has selected the church he has when there are several registered Chinese protestant churches he could attend in his local area. He stated that he never investigated them. He goes to this denomination of his local church. The Tribunal asked why he would attend a Shouter’s church when he could attend many others that are registered with structured services. He stated that he went to services led by an elder and everyone can stand up and share. He said that there is a priest in a normal church who preaches.

51. The applicant confirmed that there are about 100 people attend the services he attends in Australia but he cannot remember if they are the same people at the different venues.

52. He confirmed that he attends Church with the same 3 to 4 people each week. He said that one is from the same village in China and one applied for the protection visa and his was granted.

53. The applicant confirmed that the last service he attended had visitors from New Zealand in attendance and they spoke about getting younger people involved in the church.

54. The applicant showed the Tribunal a video on his mobile phone which showed the service he attended. It showed children singing and he claims it was taken last Sunday. The applicant stated that the majority of people in attendance were Chinese.

55. The applicant stated that he now lets the Lord Jesus live in his heart and that is how he practices to be a good Christian.

56. He stated that after the first interview with the department he was planning to go back to China however he was concerned that there is a risk that he might be arrested so he didn’t return.

57. He claims that after the first interview with the Department of Immigration he has been attending church weekly. He confirmed he has never led a church service and he does not donate money to the Church.

58. The applicant confirmed that his family from China have not visited him.

59. He does not celebrate significant Christian events. The local church does not celebrate these events. He does not celebrate Easter or Christmas.

60. The Tribunal discussed the applicant’s family and asked him how they have remained safe in China and able to practice their faith. The applicant stated that people do not get arrested every time they practice. He stated that they have not been raided. He stated however that when he was living in China there was a time when his parents were arrested but were released a day later. He stated that since that incident, nothing else has occurred.

61. The applicant stated that his [sibling] works so [does] not attend the church in China. His father attends when he is not working.

62. The Tribunal put independent country information from the Department of Immigration and Border Protection, Background paper, China, Protestants in China, August 2015 which acknowledges that leaders and members of both registered and unregistered churches have faced increased harassment and arbitrary arrests; however leaders of house churches are more vulnerable to such charges to the applicant. Furthermore, additional country information stated that credible sources were not able to comment on the extent to which local church members were still active in China. However Fujian is generally considered a province of China which is more liberal in the application of regulations towards church goers.

63. The Tribunal put to the applicant that it was concerned that the applicant’s chances of facing a real chance or a real risk of serious or significant ham are remote as he is not a leader, he is from a more liberal province and does not have a profile of a Christian.

64. The applicant stated that his mother was arrested and detained for [number] days when she was caught by local authorities for attending her local church. The applicant stated that she was interrogated and possibly beaten up.

65. He also stated that last year there was a murder case in McDonalds and after that the Chinese government has listed his local church as an evil cult. He claims that the Shouters were listed as number 1 and they blamed the local Church. He stated this was publicly claimed. There is a serious crack down and they were banned.

1. The Tribunal asked the applicant about his mother’s detention and he stated that she did not go to hospital after the arrest and confirmed that his father and [sibling] were not there and were not arrested. He stated that the police came to the local gathering and grabbed her hair and slapped her face. He claims to have been told this by his family.

2. The applicant stated that his father and [sibling] do not attend church regularly.

3. The Tribunal asked the applicant if he would continue to attend church if he was in China. The applicant stated if he was to return to China he doesn’t know what he would do but would continue to go to the Church.

   FINDINGS AND REASONS

4. The Tribunal finds that the applicant is a national of China. The Tribunal has had regard to the applicant’s passport as sighted at the hearing and accepts that his claims should be assessed against China for the purposes of the convention in s.36(2)(aa) of the Act for the purposes of the complementary protection obligations.

5. The Tribunal accepts that the applicant is a member of the Local Church and that he is baptized and has practiced his faith both here in Australia and in China. I accept that if he returned to China, he would attend gatherings of the Local Church.  It is not suggested that the applicant has been involved in proselytizing either in China or in Australia and I do not accept that he would do so if he returned to China, now or in the reasonably foreseeable future. The applicant confirmed that his parents do not host gatherings in their home and the applicant confirmed he is not known to elders of the Local Church in [Australia].

6. The Tribunal accepts that the applicant's mother is a member of the Local Church and that she attends gatherings but does not host them in her own home. However the Tribunal does not accept that the applicant’s parents were detained and questioned by local police for attending unregistered local church activities or that his mother was detained for [number] days [in] October 2014 at [a] Detention Centre due to her involvement in the Local Church. The applicant has confirmed that his mother has continued to attend gatherings for over one year without any further action being taken. I do not consider it plausible or credible that if the authorities would be unaware of such gatherings over this period of time that they have not taken any further action against the applicant's mother despite their alleged arrest and mistreatment of her and the fact that she continues to practice her faith as the applicant claims. The applicant’s knowledge of the claimed arrests lacked detail. The Tribunal finds that this detracts from the credibility of the applicant’s claims that his parents were of adverse interest to the authorities for their participation in the church and had been detained by police.

7. The applicant had a substantial delay from the time he arrived in Australia until the date of applying for his protection visa. Furthermore, he remained in Australia illegally. The applicant stated that he intended to return but he was concerned for his safety. He stated that he had to work because his parents could not afford his school fees and hence he dropped out of school.  I find that the applicant's past conduct in Australia in delaying applying for protection and being deliberately unlawful detracts from the general credibility of his claims.

8. The applicant gave evidence that he has worshipped as a member of the Local Church since he was a young child and was baptized in China when he was young. He claimed that he did experience one occasion of difficulty when leaving China because of his claimed faith. He stated in his protection visa application that a group of village cadres knocked on his door to try and prevent him from going to Australia because of his religious beliefs but he hid and escaped. Given the Tribunal has a concern regarding the applicant’s credibility and taking into consideration the independent country information which suggests that Fujian province has a liberal policy on Christianity, the Tribunal does not accept that village cadres would have tried to prevent the applicant from leaving China.

9. In making my findings, I have taken into account the Tribunal's Guidelines on the Assessment of Credibility (including the effects of anxiety on applicants and the passage of time). However, these do not overcome the significant concerns I have about the applicant's credibility set out above.

10. The applicant has not claimed any difficulties as a result of his own worship other than the incident regarding the cadres which the Tribunal does not accept. Nor has the applicant claimed that any of his family members have had any problems since the claimed incident which occurred in October 2014. This pattern of tolerance by the authorities is consistent with reports before the Tribunal as discussed with the applicant at hearing indicating that the authorities in Fujian province have a liberal policy on Christianity, noting that while the is still banned it is usually tolerated by authorities in that province and that there are few reports of repression or arrests of Christians (and none of Local Church followers) in Fujian province.

11. In making my findings, I have taken into account DFAT's March 2015 report and the information contained therein. Inter alia, it is stated that believers in unregistered Protestant Christian organisations, number approximate 70 to 100 million and that home churches can be found across China. Gatherings of 30 to 40 people are generally tolerated, although DFAT are aware of cases where gathering of fewer peoples have attracted negative attention by the authorities. Whilst DFAT assess that members of unregistered church movements could be mistreated by authorities, they do not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province.

12. Considering the country information as a whole and the applicant’s individual circumstances, I do not accept there is a real chance that the applicant would be seriously harmed by the Chinese authorities for reasons of his religion if he returned to China, now or in the foreseeable future.

13. Considering the country information as a whole and the applicant’s individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm on these bases.

    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.

    Rachel Westaway
    Member