1417919 (Refugee)

[2016] AATA 3655

1417919 (Refugee) [2016] AATA 3655 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417919

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Homan

DATE:30 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2016 at 4:34pm

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, the Tribunal accepts is a citizen of China, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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.

    Visa application

11. According to the information provided in her visa application form, the applicant is [an age]-year-old Chinese national from Fuqing, Fujian, China. The applicant claimed to belong to the Han ethnic group and Christian religion. The applicant claimed that she had never been in a de facto relationship or married. The applicant identified a single residential address in [her home town in] Fuqing City as the only place at which she had resided for six months or more in the last 10 years. The applicant’s mother, father and [sibling] continued to reside in China. The applicant declared that she had completed a primary and middle school education and had studied at [an education institution] between September 2007 and December 2007.

12. The applicant arrived in Australia as the holder of a student visa in December 2007. Submitted with her visa application was a certified copy of the applicant’s PRC passport.

13. The applicant’s claims for protection were set out in a statutory declaration in the English and Mandarin languages, dated [in] October 2013.

14. According to her statutory declaration, the applicant was enrolled in [an education institution] in September 2007. At that time, arrangements were already underway for the applicant to study in Australia. The applicant could not concentrate on her studies and instead spent most of her time playing computer games or chatting on the Internet. The applicant did not have her own computer and had to go to a nearby Internet cafe. The applicant’s classmate, [Ms A], had a computer and sometimes allowed the applicant to use it. Gradually, they became good friends.

15. In October 2007, [Ms A] invited the applicant to have dinner with her at a restaurant on a Saturday evening. [Ms A] took the applicant into a VIP room where she saw a teacher from her school and two other men. The teacher introduced the two men to the applicant. One of the men, named [Mr B], was a big boss of a large company in Fujian and the other was his assistant. The applicant’s teacher told her that her poor performance had come to his attention but he was willing to help her. After the dinner, the applicant went with her friend, the teacher and the other two men to a karaoke place ([name]).

16. About a week later, the applicant was invited to attend a dinner with [Mr B]. The applicant accepted the invitation after being encouraged by her friend and teacher to do so. The applicant’s friend and teacher joined them at the restaurant. [Mr B] gave the applicant a mobile phone as a gift, however, the applicant was forced to leave the dinner early when she was informed by her [sibling] that her father had suddenly taken ill. The applicant asked her friend to take the mobile phone for her.

17. In November 2007, the group went to dinner and karaoke together again. The applicant’s friend and her teacher left early. [Mr B] persuaded the applicant to stay with him at the karaoke bar. Unexpectedly, he took this opportunity to make the applicant drunk then took her to a hotel where he raped her.

18. The following morning, the applicant’s teacher picked her up from the hotel together with her friend. The teacher told her that [Mr B] was very rich with good connections with the police at the PSB and officials in many different government agencies. The applicant’s teacher told her that dirty pictures of her had been taken while she was drunk and the teacher threatened to post the pictures on the Internet. The applicant was told that [Mr B] could use his connections within the PSB to prevent the applicant from going overseas. The applicant then realised that her teacher and friend both worked for [Mr B] in a business providing young female students at the [education institution] to men and government officials. [Ms A] had also once been a victim but had become their accomplice.

19. Another of the applicant’s classmates, [Ms C], had secretly contacted [an agency] seeking help after she was assaulted by [Mr B] and forced to get involved in prostitution. [Mr B] and his men found out about the report and tortured [Ms C] cruelly in front of the applicant and other girls to give them a warning. The applicant never saw [Ms C] again and later heard that she had committed suicide.

20. Until the time she left China in December 2007, the applicant suffered harm and mistreatment and was forced to provide “special service” to rich men and government officials by [Mr B] and her teacher. The applicant did not dare to resist the men and was mentally tortured.

21. The applicant claimed that she had not told anyone, including her parents, about her sufferings as she was too ashamed. This was the main reason why she did not lodge an application for a protection visa sooner.

22. The applicant claimed that she began to attend [Church 1] in 2012 and was baptised [in] December 2012. Since then the applicant has become a genuine and faithful Christian. The applicant claimed that there was no genuine freedom of religious belief in China and she believed that she faced a real risk of being persecuted on return.

    Protection visa interview

23. The applicant attended an interview with an officer of the Department of Immigration [in] February 2014 and the Tribunal has listened to a recording of that interview.

24. During the interview, the applicant told the officer that her application had been prepared with the assistance of an agent to whom she had told her story.

25. The applicant told the Tribunal that her mother was living in Australia and working as a [occupation]. The applicant’s father was unemployed and continued to reside in Fuqing. The applicant’s [sibling] worked in a factory in Xiamen and supported their father financially.

26. The applicant told the officer that she first became interested in Christianity in June 2012 and first attended church in October 2012. Her flatmate went to church and took the applicant with her. The applicant claimed that her parents were also Christian but she was not interested in Christianity when she lived in China. The applicant claimed that her father continued to attend a house church.

27. The applicant gave evidence that she found church very strange when she first started attending. Later, she attended a gathering at [a Sydney venue] at which there were missionaries evangelising to people. The applicant stated that she was attending ‘[Church 1]’ and attended services every Sunday and sometimes attended youth gatherings on Saturdays. The applicant stated that they would listen to the pastor talking, sing hymns and pray. The applicant stated that she was baptised [in] December 2012 at her church.

28. The applicant claimed that there was no religious freedom in China and the government persecuted Christians. The applicant was asked whether her father was ever persecuted. The applicant claimed that sometimes when she was little the police would come to her home and smash things up. The applicant stated that sometimes her parents would hold church meetings at their home when she was little. The applicant claimed that sometimes the police came to the applicant’s school to warn her. The applicant was asked why she had not mentioned this in her statutory declaration. The applicant stated that she had not mentioned it because she was not a Christian when she was in China. The applicant also stated that she hadn’t told her agent about these matters.

29. That the applicant was asked why she suddenly became interested in Christianity in 2012 despite having lived in Australia for several years and her parents being Christian. The applicant responded that her flatmate had evangelised to her and the applicant was persuaded.

30. The applicant claimed that she would not wish to attend a registered church in China and stated that the government did not allow religious freedom. The applicant claimed that she had never attended registered church in China previously. The applicant told the officer that her parents were very happy that she had been baptised and become a Christian.

31. The applicant stated that she believed in original sin passed down from her ancestors and said that a person is born with original sin. Only Jesus can save us from our sins. The applicant stated that she believed in eternal life, God’s kingdom and hell.

32. The applicant was asked why she waited almost six years to lodge a protection visa application. The applicant responded that she had been very afraid to go back to China but in 2012, [a government agency] conducted a search at her neighbour’s home. The applicant became very afraid to go back to China and so she lodged the application for a protection visa.

33. The applicant stated that prior to coming to Australia she had been studying and resided at the [education institution] she was attending. The applicant gave an account of her experiences in late 2007, which was almost identical to her written statement.

34. The applicant gave evidence that since her departure from China, the police had often visited her family home and warned her father that the applicant should not speak irresponsibly whilst overseas. The applicant claimed that the police had come at the behest of [Mr B] who had money and connections. The applicant gave evidence that the photographs taken of her had never been published.

35. The applicant gave evidence that [Ms C] had been attacked at a hotel in front of the applicant and other girls from the [education institution]. The applicant heard from other girls in the school that [Ms C] had committed suicide before the applicant left China.

36. The applicant gave evidence that she had not told her parents what was going on although she had been home during this period. The applicant claimed that she had not subsequently told her parents and her mother did not know about her protection visa application.

    Review application

37. At the time she applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record.

38. Prior to the Tribunal hearing, the applicant submitted a brief statutory declaration in which she stated that she maintained all the claims mentioned in her visa application. The Tribunal also received 25 photographs showing the applicant’s church activities in Australia.

39. At the Tribunal hearing, the applicant confirmed her personal details including the composition and whereabouts of her family. The applicant told the Tribunal that her intention in travelling to Australia in 2007 had been to study language followed by a high school qualification and then university before returning home to China. The applicant told the Tribunal that she commenced an English language course and studied for one year before ceasing her studies. The applicant did not complete any qualification in Australia. When asked why she did not complete her studies, the applicant claimed that she had been stressed and unwell owing to her experiences in China and was always thinking about her future.

40. The applicant confirmed that her student visa was cancelled in 2009. The applicant sought review of the decision to cancel her student visa but lodged her application for review with the Migration Review Tribunal outside the prescribed time period. The applicant gave evidence that she had been assisted by a migration agent at the time who had told her that he would look after everything. The applicant denied making enquiries with her migration agent about the possibility of remaining in Australia permanently or applying for a protection visa. The applicant stated that she felt unable to tell anybody about her experiences in China.

41. The applicant confirmed that she remained in Australia for a period of approximately 4 years as an unlawful non-citizen before applying for a protection visa. The applicant stated that she had heard in this time that protection visas would only be granted on religious and political grounds and so did not think an application would be successful if she lodged one. In October 2012, the applicant started attending church after her flatmate began talking to her about Christianity in June 2012. The applicant claimed that she was baptised [in] December 2012 and continued to attend the same church, [Church 1].

42. The applicant gave evidence that her parents were Christians in China and that her mother continued to attend a Christian church in the city. The applicant stated that her father was not presently attending any church but practised his religion at home by reading the Bible, praying and singing songs. The applicant stated that her father did not attend one of the registered Protestant churches in China as they are under the control of the Chinese Communist Party and real Christians would not attend such churches. The applicant gave evidence that her parents had previously attended unregistered gatherings in their home and the homes of others. The applicant stated that her father no longer attended house church gatherings and she did not know when he stopped but her parents were attending such gatherings at the time the applicant was in China. The applicant denied having ever participated in these gatherings herself.

43. The Tribunal asked the applicant whether her parents ever experienced any difficulties arising from their participation in these gatherings. The applicant claimed that people often came to their home and smashed things and swore at them. They even went to her school and waited at the gate to warn her. The Tribunal asked the applicant how many times this happened. The applicant said that it happened when she was very young and could not remember. The Tribunal asked when someone last waited at the school gate for her. The applicant could not recall. The Tribunal asked the applicant when was the last time she could recall someone coming to her parents’ home. The applicant said she could not remember but they came very often up until the time she left for [the education institution]. The Tribunal explained that it was trying to understand the level of interest in her parents as a result of their religious activities and to understand how often and how frequently these visits took place. The Tribunal noted that the applicant’s evidence initially suggested that these sorts of visits hadn’t taken place since she was very young. Her evidence now suggested that it was continuing up until the time she was [age] years old. The applicant responded that participating in such gatherings was not allowed in China and stated that she was not a Christian at that time. People just came to her home and school because of her parents’ activities. The Tribunal again explained that it was interested in her family’s experiences as a consequence of their religious activities and noted that it had asked several questions about the timing and frequency of these visits that the applicant’s evidence seemed quite vague. The applicant stated that it happened many times and she was very young. The applicant estimated that people visited her family home three or four or four or five times in the year before she left school.

44. The Tribunal asked the applicant whether her parents had ever been detained or questioned in relation to their religious activities. The applicant told Tribunal that her parents had been taken away by the PSB when she was in approximately Year [number]. The PSB held her mother for one night and her father for one week. After that, her parents continued to have gatherings at their home and people kept coming to smash things at their home but her parents were never taken and questioned again. The Tribunal noted that it seemed unusual that the PSB would detain and question her parents and continue to visit her home and smash things yet take no further action to detain or question her parents. The applicant stated that she had no idea why this was. The applicant stated that the PSB just continued to harass her parents and warn them.

1. The applicant told Tribunal that she attended services at her church every week on Saturdays and Sundays. The Tribunal asked the applicant to describe a typical service. The applicant told Tribunal that the Saturday services were youth gatherings. The applicant stated that a typical Sunday service involved everyone arriving before [time] and sitting down at the church. First they would pray, the pastor would sing songs and worship with the people, people would take turns in getting bread and wine, they would pray in silence and after the service share a meal provided by the church.

2. The Tribunal asked the applicant about the significance of the bread and wine. The applicant responded that God was crucified and shed his blood to save our sins. In memory of him they worshipped him. The Tribunal asked the applicant again why people took bread and wine during the church service. The applicant responded that everyone belonged to one body and God gave these things as a gift. When the Tribunal sought to clarify whether the applicant was saying that they ate the bread and wine because they were a gift from God, the applicant disagreed. The Tribunal asked again why bread and wine were taken at the church service. The applicant hesitated then said that the bread and wine stood for blessings from God and we all belong to one body. The Tribunal put to the applicant that in most Christian denominations bread is used to symbolise the body of Jesus Christ and wine is used to symbolise his blood. The applicant agreed. The Tribunal asked the applicant why, in those circumstances, the bread and wine were consumed during a service. The applicant stated that the wine stood for the blood of God and they drank the wine for the redemption of their sins. The applicant said we are all sinful and commit sins every minute. We commit sins by going against God’s will and we were born with sin. We commit original sin by our birth because Adam and Eve ate the fruit on the tree. Jesus Christ was crucified and shed his blood to save us from our sins. They take the wine to redeem their sins and to worship God.

3. The Tribunal asked the applicant what she gained from attending church and why it was an important part of her life. The applicant responded that everyone is sinful but we cannot save ourselves and God died to save us. The Tribunal explained that it was interested in understanding how the applicant’s conversion to Christianity had affected her life and what she personally gained from her attendance at church and adherence to the Christian religion. The applicant stated that because of the mistreatment she suffered in China, she remained in fear and agony after her arrival in Australia. After attending church, God told the applicant that he would stay with her and protect her as a shield.

4. The Tribunal asked the applicant about the photographs she had submitted to the Tribunal. The applicant stated that some of the photographs showed her baptism and others were taken during her youth group’s trip to [location], at retreats and private gatherings with members of her church. Some of the other pictures were taken at a performance held to celebrate the opening of the church’s new venue. The applicant told the Tribunal that she was member of a youth group connected church called “[Group name]”. The group has its own leaders and on Saturdays they gather to read poems and sing songs and improve their understanding of God.

5. The Tribunal asked the applicant how she would seek to practice her religion were she to return to China. The applicant told the Tribunal that there was no freedom of religion in China. It was impossible for people to participate in religious activities with freedom. The registered churches where obliged to follow the government’s instructions and were not genuine Christians. The Tribunal again asked the applicant how she would wish to practice her religion in China. The applicant said that it was impossible for her to go back because what happened to her there hurt her so much. The Tribunal asked whether the applicant would seek to attend a house church gathering in the same way as the parents. The applicant stated that there was no freedom to attend house gatherings in China, whereas in Australia the applicant was able to attend any religious service properly and freely.

6. The Tribunal discussed with the applicant country information about the situation of Christians, and specifically Protestants in China. The country information indicated that there was between 23 and 40 million Protestants in China. Approximately 16 million of those attended registered churches associated with the Three Self Patriotic Movement. Conditions for both registered and unregistered churches varied across China and there was inconsistent treatment of Christians depending on the location in which they lived and practiced. Unregistered churches are illegal but in comparison to other religious organisations which have been deemed “evil cults”, Protestant churches are usually subject to less interference form the government. The Tribunal explained that the country information suggested that in Fujian, and specifically in Fuqing City, there was a relatively large population of Protestants but very few reports of repression of Christians. Religious policy in Fujian has been described as relatively liberal and generally speaking, the local government in Fujian appears relatively tolerant of unregistered Christians. Reports of persecution of house church Christians are rare. The Tribunal explained that the country information suggested that the applicant would be able to worship at a registered Protestant church in China in which case she appeared unlikely to experience much difficulty. Even if the applicant were to attend house church, the attitude of local authorities in the applicant’s home area seemed to be relatively relaxed. The applicant responded that the registered churches were inferior. The authorities would prevent reports of abuse of house church Christians from being made public.

7. The Tribunal noted that the applicant had omitted to mention her parents’ practice of their religion in China or the persecution they suffered as a result in her statutory declaration. The applicant stated that in China she was not a Christian. The applicant’s mother applied for a protection visa but it was refused so the applicant thought it may not be favourable for her to mention it. The Tribunal noted that the applicant had claimed that the PSB had arrested and detained her parents on one occasion and regularly came to her house in destroyed things. They had also visited the applicant had her school. The Tribunal put to the applicant that these circumstances appeared relevant to the applicant’s own situation and her failure to mention them caused the Tribunal to have some doubt as to whether the applicant’s evidence had been truthful. The applicant responded that she was not persecuted in China for being a Christian and that she only converted to Christianity in Australia.

8. The Tribunal asked the applicant why she had not brought any members of her church to the hearing as witnesses and had not provided any evidence from them in support of her claims. The applicant stated that her pastor had gone to China and had not yet returned. The Tribunal asked whether there was another pastor presently giving services and whether he could provide evidence in support of the applicant’s application. The applicant responded that her pastor had already gone back to China at the time she found out about the hearing. The Tribunal asked the applicant whether her pastor had any concerns for his own safety in returning to China. The applicant responded that there was no information registered in China to show that he was a pastor.

9. The Tribunal asked the applicant about her experiences whilst at [the education institution] in China in 2007. The applicant gave an oral account of her experiences in the last three months of 2007 which was consistent with her statutory declaration. The Tribunal noted that these circumstances the applicant had described all took place at a time when she was [under 18] years old and still attending school. The Tribunal asked the applicant whether it was usual for students at the school to go out to restaurants and karaoke bars and whether there were any restrictions on leaving the school. The applicant told the Tribunal that there was no restrictions on going out over the weekends provided they were home by [a set time] on Sunday. The applicant claimed that this was the first time she had gone out with strangers. The Tribunal asked the applicant whether she was at all suspicious about why an older businessman wanted to go out to a restaurant or karaoke bar with [an age] year old school student. The applicant responded that she was only [age] years old and didn’t think too much about it. On the first occasion she had gone with her friend and hadn’t been told that the men would be there.

10. The Tribunal noted that the applicant had given evidence that after the first dinner she felt scared or uncomfortable and asked why the applicant had agreed to go to a further dinner with a businessman. The applicant responded that the teacher had gone with her and her teacher had told her that he had noticed that her performance at school was not good. Her friend also had persuaded her to go to the dinner. The applicant was scared that if she did not go it would affect her visa application. The Tribunal asked the applicant what she had been scared of or what she was afraid might happen. The applicant stated that she just felt that it was unsafe going out strangers but she didn’t think further about what might happen. The Tribunal asked the applicant whether she thought about why her teacher was pressuring her to go to dinner with these people and talking about her performance at school. The applicant responded that she was just thinking about whether it would affect her application to go overseas. The Tribunal asked the applicant why she thought her teacher wanted her to have dinner with these people. The applicant repeated that previously her teacher had mentioned that he had noticed her poor performance and she was worried that it might affect her application to go overseas. The applicant didn’t think why he wanted her to do that.

11. The Tribunal noted that the applicant had given evidence that one of the reasons she went to the second and third dinners with [Mr B] was because she was worried that he might be able to affect her application to go to Australia. The Tribunal asked the applicant in what way [Mr B] would be able to influence her Australian visa application. The applicant responded that previously her teacher had told her that her performance was not good and she didn’t understand how the visa application process worked. The applicant was worried that she might not be granted an Australian visa. The applicant’s friend had also persuaded her to go to the dinners.

12. The Tribunal asked the applicant to talk more about the special services she had been forced to provide to other men before she left China. The applicant stated that after she was raped, she was approached three or four times. She was picked up at the school gate along with two or three other girls. In the car they were warned not to tell anyone. The men were rich and most of them were government officials. They were taken to a [karaoke venue] and introduced to the men one by one. After 2 to 3 hours at the [venue] they were taken to a hotel.

13. The Tribunal asked the applicant why she went along with this and didn’t leave the school and go somewhere else. The applicant stated that she had to study as she was applying for a visa to go overseas. When the applicant was raped, pictures had been taken of her and she had been told they would be put on the Internet or shown to her family. The applicant was told that if she did not go along with them she could not be able to leave China’s border. The Tribunal asked the applicant whether she had any difficulties when she left in December 2007. The applicant stated that she had been planning to leave earlier but she had been told by [Mr B] to book a ticket for [a specific date in] December 2007 and that she must leave on that day. The Tribunal asked the applicant why [Mr B] had wanted her to leave on a particular day. The applicant responded that she had been planning to leave earlier but was told to stay for one or two more weeks. [Mr B] told her to leave on that date, when she asked him to leave earlier he said no. The Tribunal put to the applicant that it was having trouble understanding why [Mr B] would, on one hand not want the applicant to leave, but on the other hand tell her to leave on a particular date. The applicant told Tribunal that he wanted her to stay and continue to provide special services. The Tribunal put to the applicant that, in that circumstance, it was having difficulty understanding why he would be happy for her to leave at all. The applicant said she had no idea and was only [age] years old at the time.

14. The Tribunal put to the applicant that it had been 8 years since the events she was describing and asked the applicant whether she continued to fear harm as a result now. The applicant gave evidence that on special occasions people would go to her father’s home and warn him that the applicant should keep quiet. The applicant gave evidence that the last visit had been on [a specific day in] Autumn in 2015. A uniformed policeman and another person in civilian clothing had come to her father’s house. The applicant was not sure how often or how many times these visits had occurred but estimated that they were 2 to 3 times a year every year for the last eight years. The Tribunal asked the applicant what her father’s understanding was of why these people kept coming to his home and warning him. The applicant stated that her father did not know why these people were coming. He did not know what had happened and just thought the applicant had been at school. The applicant said her father had asked her about it but she did not say anything. The applicant stated that her father had accepted this explanation. The Tribunal put to the applicant that if the police were visiting her father several times a year for eight years, it seemed he might pressure her more to explain why they were coming and were interested in her. The applicant stated that her father had asked her about it many times and she had always responded that she was just a student didn’t know anything about it. The applicant always gave him the same answer and in the end he accepted it.

15. The Tribunal also asked the applicant why, if [Mr B] had been happy for the applicant to leave China in December 2007, the police continued to visit her home several times a year. The applicant said she had no idea why this was happening. The applicant said maybe the police simply wanted her to shut up and love her country. The Tribunal put to the applicant that if they were worried about what the applicant would say whilst overseas it seemed strange that they would let her go in the first place. The applicant said she had no idea but was quite happy when they let her leave and she no longer had to suffer. The Tribunal noted that the applicant had not mentioned any ongoing visits from the police to her father in her statutory declaration. The applicant said she had not thought it was necessary to include this information.

16. The Tribunal asked the applicant what she thought might happen to her if she were to return to China now as a consequence of these events. The applicant said she thought she would continue to be hurt and the Chinese authorities were not able to protect her. The applicant said that other people might come to hurt her and girls were not protected in China. The applicant stated that she still had a clear of memory of these events even though they happened several years ago. The Tribunal noted that [Mr B] and his associates were, on the applicant’s evidence, located in Fujian province and asked whether the applicant could avoid harm by moving to a different part of China. The applicant responded that she could not relocate to another part of China because she would be required to register her hukou and officials were all connected. The applicant said she had been so hurt by her experiences that she could not go back.

17. The Tribunal put to the applicant said in view of her experiences and her fears of returning to China, it seemed unusual that when her student visa had been cancelled in 2009, the applicant took no steps to apply for a protection visa or another permanent visa to remain in Australia. The applicant responded that she had attended to appeal the decision to cancel her student visa but the application was not lodged in time. The applicant made some enquiries but was told that she did not meet the criteria for a protection visa. It was not until 2012 when the complementary protection criteria were added that the applicant thought she might be successful. When she in fact lodged the application, it was refused by the Department and the grounds on which her application had been refused were unreasonable. The applicant was now being forced to relive her agony again.

18. The Tribunal asked the applicant why when these events started to happen she did not leave and go to another part of China or leave the country noting that her passport was issued in April 2007 and her Australian visa granted on 30 November 2007. The applicant stated that she was applying for a student visa to come to Australia are needed to continue to study. The corrupt officials involved were all connected and she could not go to another part of China or leave the country safely.

    Country information

19. The DFAT Thematic Report on Unregistered Religious Organisations and Other Groups in the People’s Republic of China, dated 3 March 2015, reports that Article 36 of China’s Constitution states that citizens enjoy freedom of religious belief and that no state organ, public organisation or individual may compel citizens to believe in, or not to believe in, any religion. Discrimination on religious grounds is prohibited in theory[1]. In practice, the Chinese government limits religious practice to 5 religions over (Buddhism, Taoism, Islam, Catholicism and Protestantism) and members are required to register with the government’s patriotic associations.[2]

    [1] DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 at 2.6

    [2] DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 at 2.8

20. Registered religious organisations are permitted to possess property, publish literature, train clergy, collect donations and conduct charitable activities. Proselytising is permitted in registered places of worship and private settings but not in public or by foreigners. Distributing unapproved literature and associating with unregistered religious groups is also not permitted.[3] Some theological restrictions are also imposed and Catholics are required to be independent from the Vatican.[4]

    [3] DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 at 2.8

    [4] DFAT Thematic Report – Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015 at 2.9

21. The US State Department[5] has reported that in some parts of China, the authorities tacitly approved of or did not interfere with the activities of some unregistered religious groups, while in other areas, local officials punished the same activities by restricting events and meetings, confiscating and destroying property, physically assaulting and injuring participants or imprisoning leaders and worshippers. Since 2005, the State Administration for Religious Affairs (SARA) has acknowledged through a policy posted on its website that family and friends have the right to meet at home for worship, including prayer and Bible study without registering with the government. The US State Department has reported that some house church members say they have more freedom than in the past to conduct religious services, so long as they only gather in private.

    [5] US State Department, International Religious Freedom Report for 2013, China. Section II.

1. Information before the Tribunal indicates that authorities in Fujian province have generally been more tolerant towards Christian activities than in some other provinces.

2. There have been recent reports of a crackdown involving the removal of crosses and the demolition of some churches, particularly in Zhejiang province, apparently at the behest of Communist Party leader Xi Jinping.[6]

   [6] See CXBD6A0DE11398: "Severe crackdown on church crosses in China draws backlash from 'alienated' Christians ", Associated Press (AP), 05 August 2015; CXBD6A0DE11353: "China Is Tearing Down Crosses", Daily Beast, The, 01 August 2015.

   Findings

3. The Tribunal found the applicant’s evidence as to her own past experiences in China, and the experiences of her parents, to be lacking in credibility for a number of reasons.

4. The Tribunal is troubled firstly by the applicant’s delay in applying for a protection visa.  The applicant’s evidence suggested that at the time she arrived in Australia in December 2007, the applicant’s parents had been arrested and repeatedly harassed by the Chinese authorities in relation to their attendance at unregistered Christian gatherings; the applicant herself had been monitored in relation to her parents’ religious activities; and the applicant had been raped, threatened and forced into prostitution. Following her arrival in Australia, members of the PSB continued to visit her father several times a year. Despite these claimed experiences, and despite having dealings with the Department and a registered migration agent in relation to the cancellation of her student visa in 2009, the applicant delayed making a protection visa for almost six years. The Tribunal has considered the applicant’s response to the Tribunal’s concerns in this regard as put to her at the Tribunal hearing but, in the Tribunal’s assessment, the delay in applying for protection continues to cast doubt over the veracity of the applicant’s claims.

5. The Tribunal is similarly troubled by the applicant’s failure to mention the incidents connected with her parents’ practise of their religion in China in her first statutory declaration. As put to the applicant at hearing, the claims that the PSB had arrested and detained her parents on one occasion and regularly came to her house and destroyed things and visited her at school appear highly relevant and significant to her case. The applicant’s failure to mention them at an earlier time causes the Tribunal to doubt whether they are true. The applicant’s response, that she was not personally persecuted in China for being a Christian and that she only converted to Christianity in Australia was unpersuasive.

6. The applicant’s evidence as to her experiences in China was, in several respects, vague and lacking in plausibility. The applicant’s oral evidence as to the timing and frequency of the visits to her parent’s home and her school by the PSB was particularly opaque. Initially, the applicant sought to explain her inability to provide detailed evidence on this issue by saying she was very young at the time. Yet later, the applicant gave evidence that the PSB were visiting regularly up until the time she was [age] years old and left for [the education institution].

7. The applicant’s evidence that her parents continued to attend house churches up until the time of her departure from China yet the authorities took no further action to detain or question them, is also puzzling given the applicant’s claim that the authorities had previously arrested and detained her parents for engaging in such activities.

8. The cumulative effect of these anomalies in the evidence is that the Tribunal is not satisfied that the applicant’s parents attended unregistered Christian gatherings in China. The Tribunal is not satisfied that the applicant’s parents were ever arrested as a result of their religious activities; or that the PSB or other Chinese authorities ever visited the applicant’s home or school and warned or harassed the applicant or her parents or damaged their property.

9. The Tribunal is also not satisfied that the applicant’s claims as to her experiences at [the education institution] are credible. Although the applicant’s evidence in relation to these matters has remained broadly consistent over time, in addition to her delay in applying for a protection visa, the Tribunal found several aspects of the applicant’s story to be improbable or lacking in plausibility.

10. The incidents the applicant has described, including visiting restaurants and karaoke bars with businessmen and being picked up and taken to hotels to provide prostitution services, all took place at a time when the applicant was [age] years old and still attending school. The Tribunal finds it improbable that students at the school would be free to engage in such activities. When this issue was put to the applicant at hearing, she claimed that there were no restrictions on going out over the weekends provided they were home by [a set time] on Sunday. The Tribunal finds it difficult to believe that there would be so little supervision of the children remaining in the care of the school over the weekends that the applicant would be able to participate in the activities she has described unnoticed by those in authority.

11. The Tribunal also found the applicant’s evidence that she attended the first couple of meetings with [Mr B] voluntarily and without suspicion as to the motives of those involved difficult to believe. The applicant provided several explanations, including that on the first occasion she hadn’t been told that the men would be there. As put to the applicant at hearing, this did not explain why she attended the second and subsequent dinners. The applicant’s response that her teacher had told her that he had noticed that her performance at school was not good and she was scared this might affect her Australian visa application was unconvincing. The applicant was unable to adequately explain why she thought her teacher or [Mr B] and his associates would be able to influence a decision of the Australian authorities.

12. The Tribunal also has difficulty with the applicant’s evidence as to how she was able to depart China in the context of her evidence that she had been warned to stay in China and continue to provide services under threat that indecent photographs which had been taken of her when she was raped would be published on the internet or shown to her family. The applicant’s claim that she had been told by [Mr B] to book a ticket for [a specific date in] December 2007 and that she must leave on that day seems, to the Tribunal, to be far-fetched. The Tribunal put to the applicant that it was having trouble understanding why [Mr B] would, on one hand warn the applicant not to leave China but, on the other hand, tell her to leave on a particular date. The applicant was unable to provide an explanation.

13. In the context of the applicant’s evidence suggesting that [Mr B] agreed to her departure from China, the Tribunal also continues to have difficulty understanding why people were coming to her father’s home, warning him that the applicant should keep quiet 2 to 3 times a year, every year, for the last eight years. As put to the applicant at hearing, if [Mr B] and his associates were worried about what the applicant would say whilst overseas, it is puzzling that they would let her go in the first place.

14. The Tribunal is also concerned about the applicant’s failure to mention any ongoing visits from the police to her father in her first statutory declaration. The applicant’s explanation that she had not thought it necessary to include this information lacks credibility, given the significance of this information to her claim to continue to fear harm now as a result of events taking place some 8 years earlier.

15. For the reasons above, the Tribunal is not satisfied that any of the applicant’s claims relating to her experiences whilst at [the education institution] are true. The Tribunal is not satisfied that the applicant was raped or forced to provide prostitution services. The Tribunal is not satisfied that indecent photographs were taken of her or are in existence. The Tribunal is not satisfied that the applicant had any involvement with a [Mr B] or that her father has continued to receive threats or visits warning the applicant to keep quiet.

16. The credibility concerns outlined above have caused the Tribunal to approach the applicant’s claims regarding the practice of her religion in Australia with some caution. On the basis of the photographic evidence provided to the Tribunal, the Tribunal accepts that the applicant has been attending church in Australia and, in particular, appears to have had considerable involvement with her church’s youth group.

17. Given the Tribunal’s credibility concerns, there remains a question in the Tribunal’s mind as to the applicant’s motivation for getting involved with the church, particularly in view of her evidence that she had remained unlawfully in Australia for four years because she had been told that protection visa applications would only be granted on religious or political grounds. The applicant’s oral evidence to the Tribunal as to her religious beliefs and her understanding of Christian rituals was vague and lacking in detail. The Tribunal also remains troubled by the applicant’s failure to present any supporting evidence from her pastor or members of her church.

18. Considered in its totality, the evidence did not satisfy the Tribunal that the applicant has a commitment to her faith that would lead her to wish or seek to practice her religion in China in a way which would lead to a real chance or risk of harm. The evidence suggested to the Tribunal that the applicant’s primary interest in attending church and participating in the activities of its youth group was in the social interactions, friendships and sense of belonging to a community. On this basis, the Tribunal is satisfied that the applicant has been attending church in Australia for reasons other than to strengthen her protection claims and has not disregarded this conduct pursuant to s.91R(3) in considering her claims against s.36(2)(a). The Tribunal is not satisfied, however, that the applicant would or would wish to practice Christianity in an unregistered church, were she to return to China. Should the applicant wish to continue to be involved in a community or church activities in China in manner consistent with her conduct in Australia, the Tribunal finds that she would attend one of the registered Christian churches.

19. The Tribunal accepts the country information, discussed with the applicant at hearing, that there are between 23 and 40 million Protestants in China, approximately 16 million of whom attend registered churches associated with the Three Self Patriotic Movement. In the applicant’s home province of Fujian, there is a relatively large population of Protestants but very few reports of repression of Christians. Religious policy in Fujian has been described as relatively liberal and generally speaking, the local government in Fujian appears relatively tolerant of even unregistered Christians. Reports of persecution of house church Christians are rare. The Tribunal notes that the country information above is consistent with the applicant’s oral evidence that her pastor had recently visited China. Having regard to the country information, the Tribunal is not satisfied that the applicant would face a real chance or risk of serious or significant harm, were she to attend a registered Protestant church in her home province.

20. There is no information before the Tribunal to suggest that the applicant would face a real chance or risk of serious or significant harm were it to become known to the Chinese authorities that the applicant had been baptised and attended church in Australia.

21. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a).

22. The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. 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

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

    Rachel Homan
    Member