1500546 (Refugee)

[2016] AATA 4416

1500546 (Refugee) [2016] AATA 4416 (31 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500546

COUNTRY OF REFERENCE:                  China

MEMBER:Andrew Mullin

DATE:31 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2016 at 3:14pm

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 the People's Republic of China, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] December 2014.  

   RELEVANT LAW

3. 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.

4. 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).

5. 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.

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.

   CLAIMS AND EVIDENCE

8. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision.

9. In his protection visa application the Applicant claims, in summary:

   ·He was born in Fuqing City, Fujian, China, in [year] and lived at an address in [a] village, Fuqing, from his birth until March 2008.  He received [number] years of formal education in China, ending in July 2007 and was unemployed from then until he left for Australia in March 2008.  He is unmarried, his parents live in [Country 1] and his [sibling] lives in [Country 2].

   ·His parents were fined Rmb 20,000 as he was [an additional] child in the family.  His mother was forced to undergo a sterilisation and, when he was [age], she became depressed, subjected him to serious violence and attempted suicide.  The family were living in poor conditions.

   ·A brother [Mr A] preached the Gospel in the family home, telling them Jesus would cure his mother’s illness.  She began to get better.  His parents were baptized and all the family are now members of the Lord’s Recovery Church.

   ·Members of his church did not want to attend the government-controlled ‘three self’ church.  The Lord’s Recovery Church was slandered as ‘Shouters’ and were persecuted.  It is well known that the Chinese government has persecuted local Christians since 1950, with inhuman means.

   ·His parents often attended underground family gatherings and worshipped Jesus.  His father was arrested and tortured in 1996.  His mother was arrested in May 2000, detained for [number] days and fined Rmb [amount].  Both his parents refused to give up their faith, carefully participating in gatherings and praising God. 

   ·When he was [age] he and his mother went to the home of brother [Mr A] where he was baptized along with [others].  An Elder slowly placed his head in a basin and slowly poured water on it.  Since then he has been a true Christian.  His heart was filled with joy and he had nothing to fear as God the Father and Jesus take care of him.

   ·He participated in youth group gatherings and secretly distributed leaflets in a nearby village.  [In] October 2007 he was present at a gathering which was raided by police.  The police searched the house and took away Bibles and notebooks.  Those present were taken to a police station and interrogated individually about the organization of the gathering.  When he refused to speak the police became angry and punched and hit him, bloodying his nose.  One of the sisters confessed to having organized the gathering and was placed in detention.  Together with the others he was released on payment of a fine of Rmb [amount] and was told to report once a month.  The police warned his father that if he attended further gatherings and was arrested again he would be sent to a labour camp.  This persecution left unforgettable scars in his heart.

   ·He feared he would suffer more harm if he was placed in detention.  As they were devout Christians his parents made arrangements to send him abroad for study.  His father asked friends to arrange passports and visas. 

   ·As a result of his arrest he suffered discrimination and bullying from his teachers and classmates.  He knew the Lord would help him and the family often prayed to God.  In June 2009 his [sibling] went to [Country 2].  The Applicant came to Australia in March 2008 and his parents went to [Country 1] in October 2012.

   ·Soon after arriving in Australia he met a brother [name] who took him to a church in [suburb].  They praise the Lord and sing hymns together.  He feels peace and joy in his heart and is no longer forced to participate in church in secret. 

   ·He did not know that he could apply for a protection visa and believed it was only mothers or fathers with guardian visas, rather than students, who could do so.  Recently Sister [name] in his church advised him to obtain the services of a migration agent and he found he could apply for a protection visa.

10. The Applicant discussed his claims at a protection visa interview [in] December 2014 and was asked a number of questions about his family background, religious practice in China and Australia, the incident in which he was detained and beaten in October 2007 and the reason for his delay in seeking protection.  In deciding to refuse to grant the visa the delegate did not accept his claims to have been a practising Christian in China, to have suffered harm of any kind for this reason or to have attended a Christian church in Australia on a regular basis.  The delegate was also unsatisfied that the Applicant had suffered harm of any kind because he was [an additional] child in the family.

11. The Applicant provided a copy of the delegate’s decision record with the application for review.

12. The Applicant appeared before the Tribunal on 3 August 2016 to give evidence and present arguments.  The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

13. The Applicant’s evidence was, in summary:

    ·He left China, in March 2008, because his parents were worried that he would have trouble from the people with whom they had been in conflict over religion.  Asked who these people were he said his parents told him most were from the town government, confirming he meant by this the neighbourhood committee.  Asked why his parents believed such people wished to harm him he said similar things had happened previously.  Asked what he meant by this he said the officials warned people and did not allow them to go to the gathering place.  This had happened to him.  Asked what he meant by ‘gathering place’ he said he meant the Local Church. 

    ·He confirmed that this was the only fear his parents had in sending him to Australia.  Noting that was [age] when he left China I asked if he himself had been afraid of anything at the time.  He said he had not, confirming that it was only his parents who feared for him.  Asked if he had believed this fear to be misplaced or that his parents were over-reacting he said he believed they were genuinely scared.  He had not shared their fear as he was young.

    ·Asked what he feared would happen to him if he returned to China he said he was worried he might be detained – he was not sure if this would happen.  Asked why he would be detained he said it could be because of his parents being in the Local Church and because of things he had done in Australia.  Asked if he could identify more exactly the reason for his fear of arrest he said that if he had gone to a local church and then returned to China they might think he intended to spread the spirit of the church in China.  Asked if he had in fact been involved in the Local Church in Australia he said he attended the church in [suburb].  A church brother took him there.  Asked how long he had been doing this he said he had ceased attending a year previously.  Asked when he started he said it was, maybe, four or five years ago. 

    ·Asked what he feared would happen to him if he were placed in detention in China he said he did not know – there were many possibilities.  Asked again he said they could keep him there.  He did not fear harm in China for any other reason.

    ·Regarding his background circumstances in China he confirmed that he had always lived with his parents, apart from a period of about a year when he stayed nearby with his [relative].  The house was owned by them and is currently occupied by his [relatives].  His father had a number of jobs in China, including as a [occupation], and since moving to [Country 1] in about 2013 he has opened a Chinese restaurant.  He is in occasional contact with his parents.  His [sibling] has been studying in [Country 2] since about 2012 but he speaks to [sibling] only every six months or so.

    ·Asked if his parents had passports when they left China for [Country 1] he said they did not.  Asked how they had left China he said they changed their passports, confirming he meant by this that they had falsified passports.  Asked how they were able to do this he said they found some people to do it for them.  His [sibling] had travelled to [Country 2] with a genuine passport.

    ·He confirmed that he travelled to Australia on a [certain] visa, to study at High School.  Asked what had happened with his studies he said his parents ceased sending him money a year after his arrival.  Asked why they would have sent him off to study and then stopped supporting him he said he did not know.  To the suggestion that he would have asked them about it he said he had not done so.  I put to him it was difficult to believe that if he had suddenly found his money supply was cut off he would not have telephoned his father to ask what had happened.  He said he had not – he had just tried to work out a way for himself.  I observed that this seemed very hard to understand.  He maintained that it did happen.

    ·I suggested the cessation of financial support would have come as a considerable shock since he would suddenly have had no money for tuition, rent, food or transport.  He agreed this was so.  Asked what happened he said continued to study in his first year of High School but had part-time jobs at night.  This was very difficult and he ceased his studies, failing to complete his second year.  He worked in a variety of jobs, including as a [occupation], in a restaurant and in [certain] jobs.  At present he was working from time to time in [certain work]. 

    ·He agreed he had been living unlawfully in Australia from the time his  [visa] ceased in March 2011 to the time he lodged his protection visa application, in April 2014, but denied he had been detected by the Department.  Asked why he had decided to apply for the protection visa he said that when he first arrived in Australia friends told him that, as a student, he could not do so.  I put to him it seemed difficult to understand why anyone would have told him this.  He said he had been very new and did not understand anything.  To the suggestion that he would have had a migration agent he repeated that many people had told him that he could not apply.  I noted this information incorrect.  He said if he had known this he would have applied before his [visa] expired.  He denied he had known that the visa was going to expire, or that its validity was only three years: as his passport was valid for five years he thought his visa was valid for the same period.  To the suggestion that this seemed hard to believe he said it was the first time he had held a passport.  Nobody told him about it and he had looked at his passport on only about five occasions in eight years.  He had only glanced at the visa label.

    ·Asked how his parents had become involved with the Christian church in China he said they were introduced by brothers when he was very young.  This was the Local Church.  Asked the name of its founder he gave it as[name]   He did not know when this was, but it happened a long time ago.  Asked where it was that his parents attended this church he said there was no fixed location as the gatherings would be held in the home of a sister or brother.  Asked how many people attended he said there were around [number], agreeing these were very small gatherings.  He himself attended with his parents, once a week, on many occasions.  His [sibling] would sometimes accompany them.  This continued up to the time that he left China, in 2008.  Noting that sometimes [number] of those present would have been members of his own family I asked who the others were.  He said different people would attend at different venues.

    ·Asked what happened at the gatherings he said people would sit in a circle and pray.  Afterwards they broke the bread.  Asked how they prayed he said at the beginning, when they entered, everyone would pray to God.  Asked to describe how they did this he said they entered and then got to know each other, as they might not be familiar with everyone.  People were in a circle and they talked to each other about God and to the newcomers about their experiences.  The people prayed, one after another, and then each person read a sentence from the Recovery Version of the Bible.  Asked about the Recovery Version he said it is different from the version used by other people.  Asked how it is different he repeated it is different.  Asked again he said he did not know.  Asked if he had read this Bible he said he had.  Asked what there was about it which differed from other Bibles he then said he had not read other Bibles and although he had read the Recovery Version he did not understand it. 

    ·Asked what else people did at the gatherings after they read a sentence from the recovery version he said they would tell some stories.  Asked what he meant by this he said they were stories in the Bible.  For example they would read a paragraph and somebody would talk about the meaning.  Others did this and, of course, he had to follow them. 

    ·Asked what was his favourite part of the Bible he said they are all good.  Asked if he could talk about one particular thing in the Bible that he liked he said the only thing was the Miracle of the five loaves.  Asked what this was about he said there were five loaves and, maybe, four fish.  Several thousand people ate it but there was still some left over.  Asked if he could give any more information about the circumstances of the miracle he said he could not.  Asked who had been present he said Jesus was there.

    ·Asked if he could identify any of the other Miracles he said he could not.  Asked if he knew about the stories, or Parables, told by Jesus which are recorded in the New Testament he said he thought he should know.  Asked if he could speak about any of the Parables he said Jesus lived in the world for thirty-three years and predicted he would come back to life in three days.  Asked again if he knew about the Parables he said he did, roughly.  Prompted about the Parable of the Good Samaritan he said he did not know it.  He confirmed he did not know any of the other Parables.

    ·I put to him that it seemed in some ways hard to understand why he would not know these things if he had been attending a church over a number of years and reading the Bible.  He said it was normal.  When he read the Bible he could not remember it.  Asked if he had read the Bible when he attended church in [suburb] for a number of years he said he just went there to sing songs. 

    ·I noted that in all or most branches of Christianity to become a Christian involves undergoing baptism.  He confirmed he knew what this meant and that he had been baptised.  Asked what happened in the baptism he said there was a group: you have to go under water and then you come back alive.  Asked what had actually happened when he went into the water he said they asked him to lie down on top of the water.  They put a piece of cloth over his face and a person’s hand was under his head.  For one second they let him down in the water and then he came out.  Asked about this water he said it was in a swimming pool.  He got into the pool and his whole body went under the water.

    ·I noted this differed from the account of his baptism in the statement provided with his protection visa application.  In the statement he said that when he was [age], in 2003, he and his mother went to the home of brother [Mr A] where he was baptised with  [other] brothers and sisters, with his head being placed in a basin and water slowly put on his head, after which his heart was filled with joy.  I put to him that even making allowance for the fact that this happened some years ago and he was young at the time, I would have expected him to be able to remember whether his head was simply placed in a basin in someone’s house or whether his whole body was immersed in a swimming pool; such a clear difference about an important part of becoming a Christian could cast doubt on the truth of his claims.  Invited to comment he responded that as there was a big difference he would just stick with what he had said.

    ·Regarding his evidence earlier in the hearing that he had been warned by local officials against attending church gatherings, and prevented by them from doing so, I asked whether he had ever suffered any other kind of harm because of his church activity.  He said he had not.  Asked if he was sure about this he said they warned him and on one occasion he was kept for one day by people from the town government.  Asked where he was kept he said it was in the detention centre.  Asked if the town government had a detention centre he said they just kept him in a room.  Asked why they had done this he said they arrested him during a gathering and asked him who organized it.  Asked about the circumstances of his arrest he said that with several other brothers and sisters he was at a gathering in the home of Sister [name].  They were praying and everything was normal then someone knocked on the door and forced it open.  Those present were arrested, without any reason.  They were kept in a so–called detention centre and questioned as to who had invited them to the gathering.  He initially told them he did not know but this made them angry and they beat him up.  Finally one of the sisters confessed and his family obtained his release by paying the town government.

    ·Asked when this incident happened he said it was a long time ago – maybe when he was [age].  He agreed this meant it was in 2004 or 2005, when he was in Year [number].  It was three or four years before he left China.  I noted that in his written statement he gave a quite different date –  [October 2007].  He said he had no comment to make on this.

    ·Recalling his earlier evidence that his departure from China had been purely his parents’ idea I suggested that if he had been arrested, detained and beaten by local officials this would have been very frightening and would have been a reason for him to agree with his parents’ plan.  He said that at that time he was beaten up every day when he went out to fight with people.  Sometimes he was beaten up by the government and sometimes other classmates were beaten.  Asked why the government would have beaten him up he said they beat him once for attending the gathering but he was beaten up every day when he went out and fought with other people.  Asked who these people were he said there were many – some were from his school and others were their brothers and sisters; for example, if he beat up someone’s younger brother that person would ask his older brother to beat him (the Applicant) up in return.

    ·Asked about the claim, in his written statement, that he had experienced further harm as a result of being detained and beaten by local officials he said he did not know.  I noted that he claimed to have suffered problems at school.  He said his classmates bullied him.  Asked if he meant they did so because he had been arrested he said this might have been the case – in China the belief is that anyone who has been arrested is a bad person.  Asked if something else had happened in his school as a result he said some of the teachers also thought he was a bad student because of his arrest.  It was quite normal for him to have fights every day because every day someone would laugh at him.

    ·Asked why he had obtained his Chinese passport, in [month] 2007, he said his parents got it for him, to enable him to come to Australia – maybe they were worried about something.  I put to him that the incident in which he was arrested and beaten, followed by his being bullied at school, was said to have occurred in October 2007 indicating that his parents could not have sought the passport for this reason.  Invited to comment he said he did not receive the passport until [month] 2008.  I put to him that it was nevertheless issued in [month] 2007, making it appear that his parents had decided to send him to study in Australia, not because they feared for his safety but simply because they wanted him to have a good education and believed he would find this in Australia – in the same way they had sent his [sibling] to study in [Country 2].  He said he had no comment to offer on this.

    ·I noted that in his protection visa application he claimed to have left school in July 2007.  He said this was correct.  I put to him that if he had left school in July 2007 it was difficult to see how he could have been bullied at school by teachers and classmates over an incident which occurred in October 2007.  He said he had no comment to offer.

    ·He confirmed that his passport was genuine and that it contained his photograph and correct biographical details.  He had used the passport to leave China and experienced no difficulty at the airport in doing so.  I put to him this seemed to indicate that the Chinese authorities had no adverse records of him at the time, given the information available to the Tribunal that he would not have been able to obtain a passport or use it to leave the country if he had an adverse record.  He said he had no comment on this.

    ·I put to him that the six year delay between the time he entered Australia and his application for a protection visa, at a point when he had been living here unlawfully for three years, could cast doubt on the truth of his claim to fear harm in China.  He said he had no comment to make.

    ·I explained that I had reached no decisions about any of the information before the Tribunal but I believed it was possible to conclude that he did not have a background of involvement with the Local Church in China and that his claim to have suffered harm from the authorities and his teachers and classmates was not true; such conclusions would also cast doubt on his claim to have been involved with the Local Church in [suburb].  Taken together, these conclusions could lead me to believe he would not suffer any harm on return to China because of religion and would be a reason to affirm the decision not to grant him a protection visa.  Invited to comment he said it did not matter what conclusions the Tribunal might draw – he was happy that his claims were being taken seriously.

1. Asked if there was anything he wished to add the Applicant said there was not.

   FINDINGS AND REASONS

2. On the basis of his passport, which he submitted at the hearing, I accept that the Applicant is a citizen of China and that his identity is as he claims it to be.

3. The Applicant claims to fear harm in China on the Convention ground of his religion, as a member of the Local Church.

4. In the present case I have doubts as to the credibility of the Applicant’s account of his experiences in China, for the following reasons:

5. First, as put to the Applicant at the hearing there are a number of inconsistencies and implausibilities in his claims regarding his involvement with Christianity and the consequences this had for him.

   ·The account he gave at the hearing of his baptism in China, involving total immersion in a swimming pool, was clearly inconsistent with the description provided in his written statement in which his head is said to have been placed over (or in) a basin while water was poured on it.  Even making allowance for the passage of the years and his claim to have been only twelve years old at the time, this is difficult to understand and calls into question his claims about a central element of his alleged embrace of Christianity.

   ·If he had been arrested, detained interrogated and beaten by local officials in October 2007 and had also suffered bullying from his classmates and discrimination from his teachers it is difficult to understand his evidence at the hearing that he himself had not feared any harm in China and that it was only his parents’ concern for his safety which led to him being sent to Australia.  I have considered his explanation for this, to the effect that he was too young at the time to understand the danger he was in, but I am not satisfied this is convincing given that he was [age] and, if his claims are to be believed, had suffered harm with emotional or psychological consequences which he described as ‘scars in my heart.’

   ·His claim that he was subjected to bullying and discrimination at his school as a direct result of being arrested by local officials [in] October 2007 is inconsistent with the information in his protection visa application, confirmed by him at the hearing, that he left the school in July 2007, some three months before the incident.  He was able to offer no explanation for this inconsistency.

   ·The fact that his Chinese passport was issued in [month] 2007, [months] before the alleged incident in which he was arrested at a religious gathering, casts some doubt over his evidence at the hearing that his parents obtained it in order to allow him to avoid harm by leaving the country even if it does not conclusively demonstrate that they were simply trying to ensure a good education for him.

   ·His claim that he did not know why his parents ceased their financial support for him after he had been studying in Australia for a year, and that he never telephoned them to ask the reason, appears inherently implausible.  He offered no explanation for his alleged ignorance of the reasons, simply reiterating that this was what happened.

6. Second, the Applicant’s description at the hearing of his alleged involvement with the Local Church in China was vague and largely uninformative.  He was able to name its founder and to identify that it uses the Recovery Bible.  He gave a description of aspects of the gatherings in his village but this was perfunctory and he seemed unable to provide any significant circumstantial detail for what is said to have been an important area of his life as a child and a teenager.  His responses gave little impression that they were based on first-hand, authentic experience of a person who had attended such gatherings regularly for a number of years.  Further, for all his claim that passages from the Recovery Bible were read out by the participants at these gatherings, he appeared to have little knowledge of the Bible himself.  He offered a somewhat confused version of the Miracle of the Feeding of the Multitude and volunteered some brief facts about the life of Jesus but was unable to identify any of the other Miracles or any other passages from the Bible which were of particular appeal to him.  He was clearly unfamiliar with the Parable of the Good Samaritan, even when prompted at some length, and did not know any of the other Parables in the Gospels.  He claimed to have read the Recovery Bible but then said he had not been able to understand it.

7. I accept that the Applicant was still a teenager when he left China over eight years ago and that the religious gatherings he claims to have attended are said to have been very small and to have been held in clandestine circumstances.  Even making allowance for these factors, however, I am not satisfied that his evidence at the hearing gave any significant support for his claim to have been an enthusiastic adherent of the Local Church who had embraced Christianity since his baptism at the age of [age] and who had regularly engaged in worship despite the risks involved in doing so.

8. Finally, the delay of six years between the Applicant’s arrival in Australia in March 2008 and his application for protection in April 2014, some three years after his [visa] expired, casts further doubt on the credibility of his claim to fear harm in China.  I have considered his claim that he knew nothing about such matters but I am satisfied that he could have found out from others what he needed to do to obtain protection, had he been interested in doing so.  I note his claim that he was told by friends that he could not apply for protection if he already had a  [visa], but even if he had believed such advice this does not explain why he failed to lodge a protection visa application when his  [visa] expired in March 2011.  I am not satisfied as to the plausibility of his claim at the hearing that he was unaware his visa was to expire then, given this is clearly shown in the visa label entered in his passport.  If he had genuinely feared harm in China, either as a result of past involvement with the Local Church in his village or because he was currently attending a branch of the Local Church in [suburb], I am not satisfied that he would have delayed his application for protection until 2014.

9. Taking these matters together I am not satisfied that the Applicant was involved, with other members of his family, in a branch of the Local Church in his village, that he was baptised in such a church or that he attended its gatherings.  It follows that I do not accept he was involved in publicising its activities.  Nor am I satisfied that he was arrested at a gathering of the Church, detained, interrogated, threatened and beaten.  I do not accept that he was subsequently bullied and discriminated against while at school because he had been arrested.  I am not satisfied that he left China to come to Australia because he or his parents feared he would be at risk of religion-based harm.  I am not satisfied that he was ever adversely known to the police, local officials or other authorities, either because of involvement with the Local Church or for any other reason.  Nor am I satisfied there is any reason to believe he would be at risk of harm on return to China arising from his past experiences there.

10. I have also considered the Applicant’s claim that he has attended gatherings of the Local Church since his arrival in Australia.  In his written statement he claims this began soon after he arrived when he met a Brother [name] who took him to a church in [suburb].  In his protection visa interview he spoke of having attended [other] Christian churches in [city] before this.  At the hearing he suggested that the only activity he engaged in during the services in the [suburb] church was to sing songs, and that he had last gone there a year previously after attending for four or five years.  He has provided no substantiation for any of these claims.

11. Having considered this sparse information against the background my findings as to the credibility of the Applicant’s claims of involvement with the Local Church in China I am not satisfied that he is or has been a member of the Local Church in Australia, either in [suburb] or elsewhere, or a member of any other Christian church here.  I accept that he may have had some form of contact with the Local Church in [suburb] and that in this way he has acquired some information about the Christian religion.  However, I am not satisfied this indicates that he is a Christian or that he would seek to practise as a Christian on return to China, whether or not in the Local Church.  It follows that I am not satisfied he would be at any risk of harm from the authorities for such a reason.  Nor am I satisfied it is plausible that any contact he may have had with the Local Church in Australia would become known to the Chinese authorities and cause him difficulties on his return.

12. In the light of all the information before the Tribunal I am not satisfied there is a real chance that the Applicant would face serious harm in China because of his claimed involvement with the Local Church, either in China or in Australia.  He does not claim to fear harm in China for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal.  I am not satisfied he has a well-founded fear of persecution for a Convention reason should he return to China, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

13. For the reasons given above, I am 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).

14. Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

15. As noted, I am not satisfied that the Applicant was a member of the Local Church in China or Australia, or that he would face harm for that reason on return.  I am not satisfied he would draw himself to the adverse attention of the authorities by seeking to worship as a member of the Local Church or any other Christian church, or that he would be at any risk of harm for such a reason.  He has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.   

16. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to China, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.

17. 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

18. The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

    Andrew Mullin
    Member