1419321 (Refugee)

[2015] AATA 3337

1419321 (Refugee) [2015] AATA 3337 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419321

COUNTRY OF REFERENCE:                  China

MEMBER:Antoinette Younes

DATE:20 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2015 at 2:43pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants who claim to be citizens of China, applied for the visas [in] February 2014 and the delegate refused to grant the visas [in] October 2014.

3. The first-named applicant appeared before the Tribunal on 14 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   THE LAW

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. 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’).

7. 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 & EVIDENCE

8. In support of the application for a protection visa, the first named applicant (the applicant) provided a statement in which she made the following claims:

   a.In November 2011, her husband got seriously injured in a car accident. Her mother was concerned about her emotional well-being so she stayed with her in case the applicant tried to hurt herself. She began to accept her mother’s advice that she could be saved if she believed in God.

   b.Since April 2012, she began to attend activities relating to the underground church and understood that the church was not recognised by the Chinese authorities. [In] January 2013, when they were gathering, many policemen broke into their place saying that they were involved in illegal gatherings and spreading “some reaction speech”. They were all arrested and their Bibles, CDs and CD players were taken. They threatened them that it was illegal to believe in God privately and that they could be sentenced to 5 years. They were each questioned but she did not disclose anything. She was ill-treated and she was terribly hurt.

   c.Subsequent to her release from administrative detention, she was in bed for nearly 2 weeks to recover.  Although the local police did not have any evidence against her. They continued coming to her home warning her to give up her beliefs. She was warned that she would be arrested in case of any further involvement in church-related activities.

   d.In April, the police returned to their home.  They arrested and ill-treated her husband. Her mother went into a coma after witnessing what happened to her husband. They called an emergency number to save her mother who later recovered.

   e.They became worried about the future and felt that they would never be able to fight against the government. With the help of a friend, they obtained their Australian visas in December 2013 and travelled to Australia in January 2014.  From conversations with their daughter, they have learnt that the local police are angry about their escape from China. The police have told their daughter to tell them that if they were to return to China, they would deal with them at that time. They are in fear of returning.

9. The applicant attended an interview with the Department [in] August 2014. In summary:

   a.The applicant stated that she became a Christian in April 2012 and she is a Catholic. She has never received any instructions in the Catholic faith and she has never been baptised in any Christian faith. She attended her religious group once or twice a week and there were 10 to 20 people who attended. The group met in houses and a woman leader explained the Bible to them. At times they collected money on the streets for good causes.

   b.The applicant was asked and she did not know about the sacrament, or the names of the gospel writers, or where Jesus was born, or the Holy Trinity. She did not know about the 10 Commandments although she knew that Easter involved the resurrection of Jesus Christ.

   c.She stated that the police came to the house [in] January 2013 when she was hosting a religious gathering with [number] people attending. Three of the [worshippers] were taken by the police.  The police confiscated [number] prayer booklets and all other material. She and the others were taken to the detention centre directly where she was held for seven days and badly ill-treated. She later received medical treatment.

   d.She was asked if she had evidence to support her claim of detention and she stated that she did but this was in China. She was referred to her application where in response to question 14 (folio 33), she had indicated that she would provide the detention notice. She was reminded that the application was lodged six months ago and she has not yet provided any such documents.

   e.The applicant claimed that the authorities continued to visit her house from 2012 until August 2013 and that those visits occurred sometimes every two weeks but at other times monthly. She claimed that in April 2013, the police went to take away her husband but because she and her mother cried and screamed, the police did not proceed with that action. She said she was arrested in April 2013 as well as in April 2012.

   f.In relation to her Christian activities in Australia, she stated that she had been to a ‘big’ Church on one occasion and a smaller one on several occasions, the last occasion being in June 2014.

10. The delegate refused to grant the protection visa essentially on the bases of lack of credibility.

    Is the applicant a genuine Christian?

11. By way of background, the applicant gave evidence that a friend had helped her and her husband obtain their visas to Australia. The applicant stated that prior to coming to Australia she was not working and her husband worked as [an occupation]. She said that he had to stop working subsequent to a car accident which occurred in January 2011.  He was severely injured and is still recovering. She stated that she has a [age]-year-old daughter who continues to live in China in the same house where the family has lived for over 20 years. She stated that the student who spoke Mandarin had assisted her in preparing the statement she had provided in support of the application for a protection visa. The applicant confirmed the signatures on the statement as being hers. She confirmed that she had no changes to make to the document.

12. In relation to questions about her Christian-related activities in China, the applicant stated that she started to be involved in Christian related activities subsequent to her husband’s car accident in January 2011. She said that her mother has been a Christian for a long time and she allowed “brothers and sisters” to visit the applicant’s husband when he was ill. The Tribunal asked the applicant about specific activities in which she was involved and the applicant stated that every weekend and on Thursdays, “brothers and sisters” came to their house and they prayed together. She stated that her husband did not pray with them because of his limited mobility. The applicant subsequently stated that they prayed every Sunday and occasionally on Thursdays, each time for about two hours until they were reported to the authorities in January 2013. She said they were reported and accused of being involved in Falungong practice. She said the group had about [number] members, sometimes there were [number] but it was under [number] people. The applicant initially gave evidence that the group met at her house but subsequently, she changed her evidence and said that the gatherings also occurred at an elderly person’s home whom she referred to as grandmother. She said they initially started to meet at her home but subsequently they met elsewhere. She said that the group had a [leader] who explained the Bible to the group.

13. The Tribunal referred to the applicant’s statement in which she had claimed that her husband’s accident occurred in November 2011 subsequent to which she began to be involved in Christian-related activities, which appears to be inconsistent with her oral evidence that this happened in January 2011. She stated that the person who assisted her in preparing the statement might have heard it incorrectly and that the incident occurred in January 2011. She said that the words sound similar. With the assistance of the interpreter, it was explained that Yi means January and Shiyi means November in Mandarin. The Tribunal indicated that the two words do not appear to be similar but in any event noted that it would consider the applicant’s explanations further.

14. The Tribunal asked the applicant if she was involved in any other Christian related activities and the applicant stated that there were times when they went to other villages and other praying places. She confirmed that she was not involved in any other activities. The Tribunal referred to the applicant’s responses in the course of the interview with the Department held [in] August 2014, summarised in the decision provided to the Tribunal in support of the application for review and indicated that she had claimed that the group also collected money on the streets for good causes which was not mentioned to the Tribunal. The applicant responded that she did not believe that collecting money is a Church-related activity. She said that they raised money to buy heaters and air-conditioners but she did not consider those activities to be related to her Christian-related activities.

15. The Tribunal asked the applicant about aspects of the Bible which the leader had spoken about and the applicant stated that the leader talked about faith, believing in the Lord, blessings, and how Jesus came about. The Tribunal asked the applicant if she remembered the details of how Jesus came about and the applicant stated that she could not recall. She said this happened a long time ago and that she has not been reading the Bible since she came to Australia. She stated that since they came to Australia, her husband was injured again and his legs have not recovered. She said that she has no time and is not in the “mood” to be devoted to Christianity. The Tribunal asked the applicant if she attends Church in Australia and the applicant stated that since her arrival in Australia, she has attended Church on two occasions, once on arrival. The Tribunal asked the applicant why she has not attended Church more often in Australia and she stated because the Church is not close and she has no energy to attend. She stated that she stays at home looking after her husband.

16. The Tribunal indicated to the applicant that Australia has religious freedom and it is difficult to understand her level Church attendance, particularly as she is seeking protection from the Australian authorities on the basis of religious practices. The applicant responded by saying that the Bible is not illegal in China but maybe the authorities thought she practised Falungong. The Tribunal indicated to the applicant that her level of Christian-related practice in Australia appears to be limited and could raise doubts about her claims of Christianity. The applicant stated she was persecuted in China for her religious activities and that she has lost the “mood to do anything”.

17. The Tribunal asked the applicant if she had suffered any harm on the basis of her Christian related activities in China. The applicant stated that in January 2013, the authorities came to their house and they returned in April 2013 wanting to arrest her. The Tribunal asked her to explain what happened in January 2013 and she stated that the police came to their house and accused them of the practising Falungong. She said they yelled at them and smashed things around the house. She said the police arrested two members of the [group].  She said she was not arrested because her husband was sick and her mother was screaming. The Tribunal referred to the applicant’s statement in which she had claimed that all members including her were arrested. She stated that only two were arrested. The Tribunal indicated to the applicant that she had claimed that she was arrested and questioned. She said she was not arrested but they asked her questions in the house but her mother begged them. The Tribunal indicated that it would further consider her explanations.

18. The Tribunal asked the applicant what happened in April 2013 and the applicant stated that there was a conflict in her house. The Tribunal sought further clarifications from the applicant about the April 2013 incident. The applicant stated that the authorities came again and claimed that she was a Falungong practitioner. She said that as her mother begged them and her husband was sick, she was not taken by the authorities.

19. The Tribunal asked the applicant if she has ever been detained by the Chinese authorities and the applicant confirmed that she has never been detained. The Tribunal referred to question 14 of Part B of the application for a protection visa in which she had indicated that she would be providing a “Detention Notice in my home country” and that she would be providing the document “later”. The Tribunal asked the applicant what Detention Notice she was referring to given her evidence that she has never been detained. The applicant said she had not given any such indication. The Tribunal showed the applicant the relevant parts and now the applicant said that she was not sure because she was helped by someone and that it is possible that her husband had made the claim.

20. The Tribunal referred to the applicant’s responses in the course of the interview with the Department as noted in the delegate’s decision record, when the issue of the Notice was discussed with her. Now the applicant said that she was not officially detained but that the authorities came to her house. The Tribunal further referred to the applicant’s responses in the course of the interview and pointed out to the applicant that she had stated that she and others were taken to the detention centre directly where she was held for seven days and badly ill-treated. The applicant stated that she could not remember.

21. The Tribunal asked the applicant about her knowledge of Christianity. The applicant stated prior to her husband’s accident, she did not believe in Christianity but her mother is a Christian. She stated that she knows a “little bit” about Christianity. She initially said that she thinks she is a Catholic but later said she is certain she is a Catholic. The Tribunal referred to the applicant’s responses in the course of the interview in relation to questions about her knowledge of Christianity. The Tribunal indicated that based on her responses at the interview, it would appear that her knowledge of Christianity is limited. The applicant stated that it was correct that she does not know much about Christianity because when she participated, she was told to kneel down and pray. She said when the leader spoke about the Bible, “it was like superstition”.  The Tribunal indicated to the applicant that her apparent limited knowledge and activities in Christianity could raise doubts about her claims.

22. In the course of the hearing, the Tribunal noted that the applicant was wearing a large cross. The applicant stated that she has been wearing a cross for a long time even in China. The Tribunal indicated that it would further consider the significance of her wearing the cross as well as the oath which she took prior to the hearing.

23. Having carefully listened to the applicant in the course of the hearing and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant is credible. As summarised above and whilst some of the concerns that the Tribunal has are minor and in isolation would not be determinative, when the circumstances of the applicant are considered cumulatively, the Tribunal is satisfied that the applicant is not a genuine Christian. The Tribunal appreciates that the applicant comes from China, a country where there is limited religious freedom and that the applicant is not claiming to have been a practitioner for years. The Tribunal appreciates that faith is subjective and that it is a journey.  The Tribunal has taken those matters into account when finding that the applicant is not credible. 

24. The applicant’s evidence in relation to her Christian activities in China was inconsistent, lacking in details, vague and required substantial prompting from the Tribunal in order to explain coherently her claims. She had clearly claimed in writing (and when interviewed) that she was detained and that she would be providing a notice of that detention. The inconsistencies and the fact that the applicant was not able to produce any such document raise serious doubts about the applicant’s claims. Her explanations are neither convincing nor persuasive. The applicant came to Australia claiming to seek asylum on the basis of her practice of Christianity, yet she has not engaged in Christian-related activities in a manner consistent with being a genuine practitioner; attending Church in Australia and even if the Tribunal were to accept this, does not demonstrate a person who is committed to Christianity. Her explanations that her husband is unwell and she does not have time, do not persuade the Tribunal. Furthermore, her limited knowledge of Christianity as demonstrated in the course of the interview and subsequently in the course of the hearing support of a finding that the applicant is not a Christian.

25. In consideration of the evidence as a whole, on the bases of the available information and in light of the above noted concerns, the Tribunal does not accept that the applicant’s mother is a Christian, or that the applicant is a Christian, or a Catholic, or that she has ever been involved in any Christian related activities in either China or in Australia. For those reasons, the Tribunal does not accept that the applicant had ever attended any Christian related groups at her house or at any other location, or that the group was ever approached by the Chinese authorities, or that the Chinese authorities ever went to the applicant’s home, or that they detained/arrested anyone in the group, or that they accused anyone of being involved in illegal gatherings or spreading reactionary speech, or that they accused anyone of being a Falungong practitioner or involved in any Falungong practice, or that anyone was taken by the Chinese authorities, or that the authorities took any Bibles, CDs or CD players, or that the authorities threatened anyone that it was illegal to believing God or that they could be sentenced to 5 years, or that anyone was ever questioned or ill- treated by the Chinese authorities as claimed, or that the applicant wore or would wear a cross in China, or that the authorities continued to go to her house, or that they continued to warn her to give up her beliefs, or that they became worried about the future and felt they would never be able to fight against the Chinese authorities, or that any help they received to obtain the Australian visas had anything to do with any of the claimed events, or that they have learnt that the local police are angry about their risk eight from China, or that the police has ever told the daughter to advise when they return to China, or that they fear returning to China has claimed, or that the fact that the applicant wore a cross in the course of the hearing and took the oath is evidence that the applicant is a Christian. In essence, the Tribunal does not accept that the applicant has suffered any of the claimed harm.

    Is there a real chance of the applicant’s suffering serious harm on the basis of her Christian related activities if she were to return to China?

1. In light of the above findings and in consideration of the evidence as a whole, the Tribunal is satisfied that if the applicant were to return to China, she would not practise Christianity or be involved in any-Christian related activities. For those reasons, the Tribunal is satisfied that there is not a real chance that the applicant would suffer serious harm on the basis of religious practices, including but not limited to Christianity or Falungong, or any other basis. The Tribunal is therefore satisfied that the applicant does not have a well-founded fear of persecution in China

   Is there a real risk of the applicant’s suffering significant harm on the basis of her Christian related activities if she were to return to China?

2. In consideration of the evidence as a whole, on the basis of the available information, the Tribunal finds that there is not a real risk of the applicant suffering significant harm in case of her return to China. 

3. For those reasons, the Tribunal finds that the applicant’s claims do not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to China, there is a real risk that she would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore she does not satisfy the requirements of s.36(2)(aa).

   Claims of the secondary applicant

4. The second-named applicant has relied on the claims made by the applicant. He was invited to attend the hearing and he did not attend. As his claims depend on those made by the applicant, and given the Tribunal’s findings that the applicant has not suffered any harm and that there is not a real chance or a real risk of her suffering any serious or significant harm, it follows that the Tribunal finds that there is not a real chance or a real risk of the second-named applicant suffering serious or significant harm on his return to China.

   Certificate under section 438 of the Act

5. There is on the Departmental file a certificate pursuant to s. 438 of the Act, in relation to a number of documents. The Tribunal considers those documents to be irrelevant to its enquiries and has not used the documents or their contents in any manner adverse to the applicant.

   CONCLUSIONS

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

7. There is no suggestion that either 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 applicants do not satisfy the criterion in s.36(2).

   DECISION

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

   Antoinette Younes
   Senior Member