1500598 (Refugee)

[2016] AATA 4745

1500598 (Refugee) [2016] AATA 4745 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500598

COUNTRY OF REFERENCE:                  China

MEMBER:Mara Moustafine

DATE:24 November 2016

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

Statement made on 24 November 2016 at 7:19pm

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. The applicants are husband, wife and child. The first named applicant (the applicant) claims to be a citizen of China and is [age] years old.  The applicant has made protection claims in his own right and his wife and child have made claims as members of his family unit.

2. The applicants applied for Protection visas [in] November 2013. The applicant claims that  he will be persecuted in China because he is regarded as an activist who has threatened the social order and state security of China with the aid of the overseas religious organisation because of a Bible and religious materials he sent to his father in China.

3. The applicants attended an interview with the Department on [in] March 2014. A delegate of the Minister for Immigration refused to grant the visas under s.65 of the Migration Act 1958 (the Act) on 31 December 2014.

4. This is an application for review of that decision, a copy of which he provided to the Tribunal and is taken to be on notice of its findings and reasons.  The applicant also provided to the Tribunal a statutory declaration advising the birth of his second [child] [in] 2015; and statements from the Minister of the [Church 1] and two church officers regarding the applicants’ involvement with the church.

5. The applicants appeared before the Tribunal on 25 October 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 applicants gave evidence about their background, their travel to Australia and claims for protection. The Tribunal also received oral evidence from the minster of their church, who attested to their attendance at his church since 2013. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

6. The issue in this case is whether the applicant’s claims are credible and whether he meets the refugee criterion, and if not, whether he is entitled to complementary protection.

7. A summary of the relevant law is set out at Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal, as well as his partner’s evidence to the Tribunal and that of his church minister. At the beginning of the hearing the applicant confirmed that all his evidence to date was true and correct.

9. In assessing the applicant’s claims, the Tribunal has carefully considered and weighed a range of independent material relating to China and Fujian province in particular. This includes material referenced in the delegate’s decision, as well as recent reports prepared by the Australian Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes[1].

   [1] DFAT, DFAT Thematic Report, Unregistered religious organisations and other groups in the Peoples’ Republic of China, 3 March 2015; DFAT, Country Report, Peoples’ Republic of China, 3 March 2015.

   Background

10. The applicant is [age] years old and was born in [Fujian] province. According to the delegate’s decision, he first entered Australia [in] March 2007 on a [student] visa and was granted several subsequent student visas, the latest being [granted] [in] September 2008 and valid until [November] 2010. The applicant then remained in Australia unlawfully until [November] 2013.  The applicant departed Australia [in] January 2009, returning [in] February 2009. 

11. The applicant’s wife is [age] years old and born in [Fujian] province. She entered Australia on [in] January 2007 on a [student] visa, which ceased [in] March 2010, at which time the applicant remained unlawfully in Australia until [November] 2013.  The couple married in 2013. Their first [child], who is the third applicant, was born in Australia [in] 2014. A birth certificate to this effect is on the Department file.

12. According to his application form, the applicant started attending the [Church 1] in [suburb] in March 2013 with his wife. They were baptised on [in] July 2013 and became ‘genuine Christians’. 

13. The applicant claims that his father was twice arrested by the Public Security Bureau (PSB) and sent for re-education through labour after being set up by a businessman, with whom he invested in a [business]. In 2009 he was arrested for smuggling [products] and in 2011, for spreading ‘anti-government’ rumors, harming social security and damaging the good reputation of Communist officials. As a result of his father’s problems, the applicant was unable to continue his study in Australia but dared not return to China as he was afraid of being implicated by his father's case. 

    Applicant’s claims

14. The applicant’s claims, as set out in his application form, are that, after he became a Christian in Australia, he ‘evangelised to his father in China many times over the telephone and Internet; sent him a Bible and Christian promotional materials; and encouraged his family to attend a ‘genuine Christian church’, not controlled by the Chinese government. ‘Unexpectedly’, his communications with his family came to the attention of the Chinese government. [In] October 2013, the Public Security Bureau (PSB) raided the homes of his family, confiscating the Bible and Christian materials which he had he sent to his father and the computers of his siblings. The PSB warned the family that the government did not allow overseas religious organisations like Christian churches to harm social order and state security in China, which the applicant’s activities had already done, and threatened that the whole family would be arrested if the applicant did not stop his activities. The applicant claims that he cannot return to China, as he is regarded as an activist who has threatened social order and state security of China with the aid of an overseas religious organisation and will be subjected to persecution if he returns.

15. Key points from the applicants’ hearing before the Tribunal were as follows:

    a.He was in contact with his family in China once or twice per week through the Internet (using QQ) and by mobile phone and had spoken with all of them in the last two weeks. When asked about their welfare, the applicant said that, since [October] 2013, the government had been monitoring all their movements by bugging their phone and monitoring the Internet. They learned this when the authorities raided their house and confiscated the Bible and materials he sent them, prior to which he had been talking to them and spreading the gospel. Asked how he knew that the family was being monitored since that time, the applicant said that the reason the police came to search their house was that they had bugged them and knew that the applicant had sent the materials to his family – if they didn’t know it, how come they came to the house to do the search?’  Asked if anyone had told him this or whether it was his speculation, the applicant said no one told him this but when the authorities came to search the house they told the applicant’s family that his conduct was threatening security through overseas religious influence.

    b.The applicant came to Australia to [study] with the plan of applying for Skilled Migration to work [after] two years. He stopped studying when he returned from China in March - April 2009 because of his father’s problems. He thought his visa would be cancelled when he stopped studying, but it remained valid till October 2010. He then started working and has been working as a [occupation] for the past 6 months.

    c.As to why he only applied for a protection visa in 2013, the applicant said that, when his father was arrested, he was very scared but two agents [told] him that the persecution of his father could not be a reason to apply for a protection visa. He considered whether to approach the Department but feared that they might not keep the matter secret. In applying for a protection visa, the applicant had betrayed his country and, if the government found out about this, his family would be in danger, as his father’s case was political.

    d.Asked what had happened to change his mind and apply, the applicant said that, after he met his wife and joined the church, his personality changed and he became more self-confident. Most importantly, the woman who introduced his wife into the church, [Ms A], told him, in March 2013, that she had spoken to a lawyer who told her that they could apply for a protection visa on the grounds of his father’s persecution in China.  

    e.The applicant confirmed that he had never suffered harm in China in the past. However he was afraid to return to China now because the government considered him to be a person who ‘imposed religious influence through overseas power’ because he sent religious materials to his father in China. The applicant said that he knew this because his parents told him that, [in] October 2013, police came and confiscated the materials and gave them an oral warning.

    f.The materials which he sent to his father in China were five Mandarin language Bibles for the family, as well as the weekly newspaper from his church, which he sent every one or two weeks between August and October 2013 through a [shop], which sent it by post or a private courier to China. 

    g.Asked why he sent Bibles to China, the applicant said that the purpose was to spread the Gospel to his family, who had no religion, and did not know the church at the time; and because Bibles could not be bought in shops in China, but only the ones printed by the Three Self Patriotic Movement (TSPM) could be bought through their churches. He did not know at the time that Bibles could not freely be sent to China.

    Asked if he had any evidence of the materials being sent, the applicant said this had been provided to the department previously. The Tribunal noted that according to the Department decision the exact items sent were not identified on the receipt and there were issues with the dates.   

    h.As for his father’s response to the materials, the applicant said his father did not know what the Bibles were at first, but the applicant told him that he believed in Christianity and spread the gospel to him, telling him stories from the Bible. He spoke to his father on the phone or through QQ every week, sometimes for 2-3 hours. Asked if his father became a Christian, the applicant said that, in Christianity, if you were not baptised, you could not be a Christian. He confirmed that no one in his family in China were baptised and never went to church, although he asked them to do so.

    i.The applicant first went to church in March 2013 and was baptised in July 2013. Asked what drove him to become Christian, the applicant said that, when he met his wife in January 2013, she spoke of her participation in the church after meeting [Ms A] and they talked about the Bible.

    j.Asked how the Chinese authorities would have known that he sent the Bible to his father, the applicant repeated that the police came to his father’s house [in] October 2013 and confiscated the materials which he had sent his family because they had been monitoring the phone and internet. They warned his parents that, if the applicant continued to send the materials and spread the gospel, they would arrest him because his conduct threatened national security. Asked how police knew that the applicant was on the other end of QQ, the applicant claimed that when the police listened to their conversations, they would have known for sure it was between father and son.

    k.He believes that he will be arrested if he returns to China because the police told his parents in October 2013 that he had to stop sending religious materials because it was disrupting social order and showed foreign religious influence. After this, he did not send those materials any more, but he still spread the gospel through QQ and over the phone to his family, telling them about God and the story of Jesus. His family wanted to be Christians but could not join a church ‘belonging to God’ as the churches in China were all controlled by the Chinese government.

    l.The applicant confirmed that nothing had happened to his family since October 2013, although he continued to spread the gospel over the phone and through QQ; that his father’s internet and QQ connections were never cut. However, it was clear from the warning to his family that the police were monitoring them. He also confirmed that he had never been contacted by the Chinese [government] in [Australia].  

    m.To the Tribunal’s suggestion that country information indicated that many Christians in China, especially in Fujian province, continued to participate in unofficial underground church practice, the applicant responded that the majority of churches in China were under the TSPM and controlled by the atheist Chinese government, but he believed in the church of freedom.

    n.In a discussion of country information from DFAT regarding Christianity in China, the Tribunal drew to the applicant’s attention information regarding the general availability of bibles in China and that, while the TSPM and China Christian Council were the only entities allowed to print and distribute Bibles, there were now some 200 registered Christian bookstores and nine domestic Christian publishers operating in China. Moreover, friends and family are permitted to hold small, informal prayer meetings without official registration[2] and ‘house church’ gatherings of 30 to 40 people were generally tolerated, although not an officially registered church, especially in Fujian province. The applicant responded that only the TSPM church was allowed to print Bibles and materials and repeated several times that the small churches were all TSPM churches, even if they were not registered so were not truly Christian.

    o.He confirmed that he had never been to church in China. In Australia he only attended one church. Asked why he attended this particular church, the applicant said it was because he lived in [suburb] and his wife led him there.

    p.He cannot return to China because the Chinese government would arrest him if he continued to ‘spread the gospel’ (which he said meant telling the true story of Jesus Christ and his miracles). If he went back, he will not be able to spread the gospel freely and will be persecuted. Asked what he had been doing in this respect to date, the applicant said his practice was to talk about Jesus Christ and Christianity on the phone to his family.

    [2] By China’s State Administration for Religious Affairs.

16. The evidence given to the Tribunal by the applicant’s wife was consistent with the applicant’s written claims, including that he sent to his father one Bible and booklets from their church.  The chronological sequence she presented of her relationship with the applicant and their engagement in church activities was also consistent with the applicant’s evidence. She became involved with the church after meeting a lady named ‘[Ms A]’ while shopping, who asked her if she believed in Jesus Christ and invited her to the church. She later brought her husband there. 

17. Regarding her husband’s family in China, the applicant’s wife said that he rang his parents every two weeks, using a phone card at the telephone booth or by Internet QQ or WeChat. Asked if her husband still talked about religion and spread the gospel, his wife said that he did not mention this much but told them they should pray. She did not know if the family went to church in China now, although they did go to a TSPM church after the applicant preached the gospel to them in 2013. She later elaborated that she heard her husband mention this on the Internet when he asked his parents to attend church and thought that they attended the church once or twice.  Her own family did not go to church in China as her mother was too busy.

18. Asked if he had any comments on his wife’s evidence, the applicant said that everything she knew about him was based on what he had told her, but that she was not accurate. For example, he sent five Bibles to China, while she only remembered the Bible he sent to his father. As for his parents attending church, the applicant said he did ask them to attend church, but one that was not under government control. Asked again if his parents attended church, the applicant said that, in the beginning, they went to a big and a small church, both of which were under government control, so they did not go to church.

19. The Tribunal also received oral evidence from the minster of the applicants’ church, which attested to their attendance at his church since 2013.

20. In an oral submission at the end of the hearing, the representative asked the Tribunal to consider that, as the applicant’s father had twice been arrested by the Chinese authorities and had a PSB record for involvement in political activity, spreading the gospel to his father would be seen as an anti-government act.

    Consideration of applicant’s claims

21. On the basis of the applicants’ Chinese passports presented at hearing and, in the absence of evidence to the contrary, the Tribunal accepts that they are citizens of China and that China is the receiving country.  The Tribunal accepts that they are in a spousal relationship and, on the basis of the third named applicant’s birth certificate, have conceived a child together. Therefore, the Tribunal accepts that the three applicants are members of the same family unit.

22. On the basis of evidence given by the minister of their church and documentary evidence provided, the Tribunal accepts that applicant and his wife have attended and been baptised in a church in Australia.

23. For reasons outlined below the Tribunal did not find the applicant to be a truthful and credible witness about the reasons that he fears harm in China. The Tribunal is not satisfied that the applicant is in genuine fear of persecution for a Convention reason, or that there is a real chance that he will suffer serious or significant harm on his return to China.

24. In the Tribunal’s view, the applicant’s central claim – that the Chinese authorities will arrest him because they regard him as an activist who has threatened social order and state security with the aid of an overseas religious organisation because he sent religious materials to his family in China and preached the gospel to them over the phone and Internet – is speculative and implausible.

25. Both in his written evidence and at hearing, the applicant identified his father as the source of this information, saying that the police gave him an oral warning about his son when they raided his house in October 2013 to confiscate the materials which the applicant had sent him. In his written claims the applicant also stated that his father was told that the whole family would be arrested if the applicant did not stop his activities.  However, by his evidence at hearing, nothing had happened to his family in China since the alleged raid, notwithstanding that he had continued spreading the gospel to his father on QQ and over the phone, while he claimed the authorities were still monitoring his family’s movements, phones and Internet.  

26. As discussed with the applicant, in light of China’s well-documented efforts to monitor the Internet and restrict content, in the Tribunal’s view, if the applicant’s religious conversations with his father over QQ were of concern to the authorities, they could have disrupted his Internet connection or had his QQ account suspended, as they have done with various activists[3]. This did not happen. Moreover, given the applicant’s evidence that his family in China were not religious activists, had not been baptised and did not attend any underground church, the Tribunal does not find it credible that the authorities would be expending the resources required to monitor all of their movements. The applicant’s rhetorical response when asked how he knew that this was still happening – to the effect that they knew through bugging them that he had sent them the religious materials and if they didn’t know it, how come they came to the house to do the search? – was speculative and circuitous in its logic.

    [3]US Department of State, Country Reports on Human Rights Practices for 2015, China.

1. The Tribunal found a number of inconsistencies between the applicant’s written and oral evidence, as well as that of his wife. As to the number of Bibles which he sent to his father in China, the applicant stated in his written evidence, as did his wife at hearing, that he sent one Bible. However, he told the Tribunal that he sent five. While the Tribunal has had regard to the applicant’s claim that his wife only knew what he told her and got this detail wrong, in the Tribunal’s view, the applicant embellished his evidence to strengthen his claims. As to whether his family in China ever attended church in China, the applicant told the Tribunal early in the hearing that they did not. By contrast, his wife gave evidence that they attended a registered church several times. The applicant then said that his parents did attend two churches, but as they were TSPM churches, his parents did not attend church. The Tribunal finds this attempt to explain the inconsistency between his and his wife’s evidence disingenuous.

2. The Tribunal is also concerned that the applicant continued to live in Australia unlawfully for more than three years after his student visa expired before applying for a protection visa and did not approach the Department to discuss his situation. The Tribunal finds disingenuous his claim that this was because he feared that the Department would not keep his matter secret, especially if, as he claims, he discussed with various migrations the grounds for applying for a protection visa.

3. In light of the multiple inconsistencies and concerns outlined above, the Tribunal is not satisfied that the applicant sent the religious materials to his father or preached the gospel through QQ, as claimed. The Tribunal is not satisfied that the PSB raided the homes of his family; confiscated the religious materials he allegedly sent to his father or the computers of his siblings; or issued warnings about the applicant’s activities. The Tribunal is not satisfied that the applicant is regarded as an activist who has threatened social order and state security with the aid of an overseas religious organisation because he sent religious materials to his family in China and preached the gospel to them over the phone and Internet. Rather, it is the Tribunal’s view that the applicant fabricated his claims to achieve a migration outcome.  

4. The Tribunal has had regard to, but is not persuaded by, the adviser’s submission that spreading the gospel to his father would be seen as an anti-government act because of his father’s previous arrests and PSB record. As discussed with the applicant at hearing, in view of the prevalence of document fraud in migration cases from China, the Tribunal cannot give weight to the documentary evidence regarding his father’s case, which was provided in the course of his protection visa application, as it has not been verified by the Australian government. Moreover, the Tribunal has not accepted that the applicant’s alleged preaching of the gospel to his father by QQ has resulted in any difficulties for either the applicant or his father. 

5. The Tribunal found the applicant’s evidence about the situation of Christianity in China, particularly with regard to registered and unregistered churches, somewhat simplistic and polemical, reflective of the fact that he never attended church in China. While the applicant has attended and been baptised in a church in Australia, he indicated that his choice of church was not driven by a consideration of its belief system or denomination, but rather by its location and the fact that his wife led him there after she herself was introduced to the church through a chance meeting with one of its members. The Tribunal also notes that the applicant’s claimed practice of spreading the gospel was confined to his own family.

6. The Tribunal has considered what might happen to the applicant in the event that he returns to China and practices his Christian religion as he claims he has been doing in Australia. Given that friends and family are permitted to hold small, informal prayer meetings without official registration, and the general tolerance of house church gatherings, especially in Fujian province, the Tribunal is satisfied that, if he returns to China, the applicant will be able to practice his Christian religion and spread the gospel in a similar way as he claims he has been doing while living in Australia.

7. On the basis of the evidence before it, the Tribunal is not satisfied that, if he returns to China, the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future arising essentially and significantly for one or more of the five Convention reasons, including his religion. 

8. Having regard to its findings of fact above that the Tribunal does not accept that the claimed events occurred, the Tribunal does not accept that 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 he will suffer significant harm as defined in subsection 36(2A) of the Act.

   CONCLUSIONS

9. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person 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.

   DECISION

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

    Mara Moustafine
    Member

    
    

    ATTACHMENT A: RELEVANT LAW

11. 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.

12. 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).

13. 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.

14. 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’).

15. 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.

    Credibility