1503065 (Refugee)
[2016] AATA 4641
•24 October 2016
1503065 (Refugee) [2016] AATA 4641 (24 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1503065
COUNTRY OF REFERENCE: China
MEMBER:Linda Holub
DATE:24 October 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 October 2016 at 2:27pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The applicant who claims to be a citizen of China applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] January 2015.
RELEVANT LAW
Refugee criterion
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.
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).
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.
Complementary protection criterion
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’).
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of being persecuted in China for reasons of her race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s written claims for protection are contained in the application forms and accompanying supplementary evidence submitted to the Department of Immigration and Border Protection [in] May 2014. The applicant travelled to Australia on a [temporary visa] [in] May 2013. In making its decision, the Tribunal had before it the Department’s files relating to the applicant’s protection visa application and her student visa application and the Tribunal’s file relation to the review application. In making its decision the Tribunal has given consideration to the delegate’s decision record.
10. The applicant is from Shenyang City, Liaoning Province, China and was born[date] . The following is a summary of the claims and information provided in the written application:
a.She operated her own [business] in China. She worked on a project for[a government official] . He promised he would pay her RMB [an amount] when she finished the project. However he did not pay her and she was unable to continue to run her business. She approached him a number of ways including a letter to the complaints office but did not receive any responses.
b.She is a Christian. He told the police that she held home gathering activities as a result of which she had to leave.
c.She lost her business, her family has been threatened she was detained and questioned because of her religion.
d.From 2005 until 2011 she lived in [Country 1] and was granted protection by the [Country 1] government. When her mother was ill in 2011 she returned to China to look after her. She was told by the [Country 1] government that she would lose her protection visa if she left[Country 1] . She went home in 2011 she suffered a lot and cannot go back again.
e.The [government official] was concerned that she would continue to complain so he found some gangsters to threaten her family. She once again had to leave China and went to [Country 2] to seek protection there. However because [Country 2] do not like Chinese she came to Australia. She believes that because the [government official] is a very powerful person and knows other powerful people including officers. Rich people and gangsters that the authorities will not protect her if she returns.
11. The delegate’s Decision Record [in] January 2015 indicates that the applicant was interviewed by the Department [in] January 2015. The delegate refused to grant a Protection visa to the applicant as the delegate was not satisfied that the applicant “is a person in respect of whom Australia has protection obligations …”[1]. The delegate had “considerable credibility concerns regarding the applicant which overall lead [him] to find that she is not a witness of truth.[2]
[Department file number] .
[department file number].
12. On 3 March 2015 the applicant then applied to the Tribunal for a merits review of that decision. The Tribunal wrote to her on 25 May 2016 advising that a hearing had been scheduled for 12 July 2016. The applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
FINDINGS AND REASONS
Nationality
13. On the basis of the applicant’s passport issued by the Republic of China the Tribunal finds that the applicant is a citizen of China. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to reside in any country other than China.
14. The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicants do not have a right to enter and reside in another country for the purposes of s.36(3).
Credibility concerns
15. During the hearing the Tribunal discussed with the applicant her background in China, her [temporary] visa application on which she first travelled to Australia, her first and second marriages, her time in[Country 1] , her involvement in Christianity and attendance at [Church 1] in Sydney.
16. The applicant informed the Tribunal that some people helped her to complete her Protection visa application. She explained that she dictated the information to them because she cannot understand English. The Tribunal asked the applicant how it was that she obtained assistance from somebody in China to complete the application form referring to information provided on the form that the address of the person who assisted her lives in Shenyang City, Liaoning Province, China[3]. The applicant stated that it was a neighbour in Australia who assisted her. The Tribunal asked the applicant why this person referenced Shenyang City as their address. The applicant responded that this person does not want to be known that she helped. When asked why, the applicant stated that she paid [an amount] to this person. The Tribunal asked why that would necessitate her putting down a false address to which the applicant responded she did not know why the person was sensitive about it. The applicant did eventually state that although she did not sign the form it contains what she dictated.
[department file number].
17. The Tribunal asked the applicant if she stands by the evidence she provided at the interview with the Department. She responded that some things she said were true and some were not and that she wanted to alert the Tribunal to this. She claimed that she felt better after the interview with the Department because she is a Christian she does not want is to lie. She claimed that she was told by the person who helped her apply for protection that she should fabricate her story, otherwise the Department will not grant her visa. The only issue she clarified was that it was her father rather than her mother who was unwell in 2011 which necessitated her to return from[Country 1].
18. The applicant also told the Tribunal that the information in and the materials submitted with her [temporary] visa application were false. This is discussed further below.
19. The Tribunal had a number of concerns in regards to the applicant’s claims and evidence. Firstly, it was concerned about the delay in the applicant lodging her protection visa application. Secondly, even though the applicant stated early in the hearing that she advised the Department that statements and materials provided as part of her [temporary] visa application were false, the applicant was prepared to provide false information to Australian immigration officials or be a party to such action. Thirdly, her claims regarding her conversion to Christianity given her inability to answer straightforward questions about Christianity. Fourthly, her claims of travelling to [Country 2] in order to seek protection. As a consequence of these serious concerns, the Tribunal was not satisfied the applicant is a credible witness and therefore overall was not satisfied with the veracity of her claims.
Delay in lodging
20. The applicant originally travelled to Australia on a [temporary visa] arriving here [in] May 2013. The Tribunal asked the applicant why having arrived in Australia [in] May 2013, she did not lodge her Protection visa application until [in] May 2014. She said that prior to that she did not know that such an application was possible until she moved to [City 1] from [City 2] towards the end of 2013. The Tribunal was not satisfied with this response as the applicant’s written visa application states that she travelled to [Country 1] in March 2005 to seek protection and that she travelled to [Country 2] in July 2011 to seek protection[4]. In her written application the applicant wrote:
“I run to [Country 1] in 2005. I was protected by the [Country 1] government between 2005 and 2011. However, my mother was ill in 2011, I have two back to China to look after her, the [Country 1] government told me that I would lose protection visa if I left. I gave up the protection visa and back home”[5].
[4] [Department file number].
[Department file number].
21. This indicates the applicant knew about the possibility of seeking protection in both [Country 1] and [Country 2]. It can be concluded that the applicant would also understand the possibility of seeking protection in Australia. The applicant’s response at hearing undermined her credibility.
[Temporary] visa application
22. Referring to the evidence provided by the applicant at the commencement of the hearing that she had informed the Department that all the material in her [temporary] visa application was false, the Tribunal indicated to the applicant that it had concerns about her credibility because she was prepared to provide fraudulent information to the Australian authorities in order to obtain a visa. The Tribunal put it to the applicant under the provisions of s.424AA of the Migration Act that she was prepared to travel on a visa that relied on false information regarding her education, her income and her employment all of which are totally different to that which she provided in her Protection visa application. She responded that she did not fabricate the information. She said she approached an agent and was told she does not need anything except a passport to travel to Australia. The applicant explained that her brother paid around AU [an amount] to obtain her [temporary] visa. The applicant stated that agents advertise their services widely in Chinese newspapers. She said it’s possible to obtain a visa for[amount]. The Tribunal asked the applicant where she obtained that amount of money to pay for a visa. She said her brother is very rich because he owns[businesses].
23. Whether or not the applicant personally fabricated the information or paid an agent to do so, the Tribunal considered that applicant has demonstrated her interest and preparedness to provide false information to enter Australia. This led to her credibility being undermined.
Harm suffered in China
24. The Tribunal asked the applicant what harm she suffered in China. In response to this question the applicant started to talk about her first marriage and the trouble her ex-husband gave her. She explained that her family was very poor and marriage was arranged for her when she was young. She was married in [year] making her [age] years of age. She said her husband had special requirements in relation to sex and drank every day and if she didn’t agree to what he wanted he would beat her. The applicant claimed her mother was not supportive partly because her sister-in-law might laugh if she returned home. Her mother was biased towards males and would not tolerate her. The applicant stated her first baby was delivered by Caesarean section and after that she did not want any more children and therefore used contraception. Her first husband also beat her for that reason. She eventually proposed divorce but he insisted she leave without any money. Even after the divorce he kept harassing her. Her brother recommended she go to[Country 1]. When she left her ex-husband he went to her mother’s home and smashed all the windows.
25. After returning from [Country 1] her former husband wanted her to remarry and because she refused he harassed her. This harassment continued even after she remarried and her present husband had some fights with her first husband. Initially she thought that if she remarried her first husband would not harass her anymore. Her first husband also persecuted her family by flooding her mother’s [farm].
26. The applicant did not report the actions of her husband to the authorities because she considered this pointless. She stated it was normal for husbands and wives to fight with each other.
27. The Tribunal attempted to understand the timelines of these events. The applicant claimed her first marriage ended in 2003. When asked when she married a second time she said 2013 when asked what month she said she is not in a good position today. The applicant was upset when talking about her first marriage. The Tribunal asked whether she was prepared to continue with the hearing and suggested an adjournment. After the adjournment the applicant stated she remarried [in] August 2012.
28. The applicnat only speaks to her husband ever few weeks because he does not trust her. She commented on the fact that he does not believe in Jesus Christ. The Tribunal asked her how that was relevant to have often they are in contact. She repeated that he does not believe in Jesus Christ but she does and that people told him that every woman who goes overseas finds another male.
Wood carving business
29. In relation to the applicant’s claims regarding problems with the [government official] who did not pay her for[services], the applicant explained that she and a friend had opened a business [selling goods]. This particular [government official] claimed that the work was not done to his satisfaction and therefore he would not pay her. She went to his office in an attempt to obtain the money. At hearing she explained that she and her friend had borrowed money for the business and needed to be paid for the work. On behalf of the [officials] started to harass them claiming that they were undertaking an illegal business. On one occasion as they were walking along the street people rode by on the motorcycle and hit them.
30. The applicant claimed that her first husband also beat her because of this. Further, she claimed that the official went to her mother’s place and told her mother to tell her daughter to disappear. Her mother was told that the money would not be paid and if the daughter returns she will disappear. When asked what was meant by this she said that the [government official] wanted her to die. She went on to claim that many women in the area were purged; when they get into trouble there might be a hit-and-run is no video no evidence and the woman is dead.
31. These events occurred before she went to [Country 1] in 2005. When asked what she fears about returning to China she did not refer to any continuing and on-going concerns regarding the[government official]’s attempts to harass her. Rather, she stated that she was born in a rural area and she hates the criticism of those people. She also referred to the churches in China being different to churches in the west. She then commented that her heart could not feel relief in China; only if she is abroad.
32. The Tribunal is satisfied based on the passage of time and based on the applicant’s own evidence regarding what she fears about returning to China, that she no longer fears harm from the [government official] in respect of the[goods].
33. In relation to the criticism by people in rural areas, the Tribunal was satisfied based on the evidence provided by the applicant that she does not have subjective of objective fear of discrimination on the basis of her religion.
Christianity claims
34. The applicant claimed that when she went to [Counrty 1] she began to believe in Jesus Christ. Upon returning to China she was involved in a small church group and people liked to listen to her words about the church in[Country 1]. Someone reported her to the authorities saying that the church in [Country 1] does not comply with the policies in China and that they were undertaking illegal activity so some of them were arrested and she was not allowed to go to the church. She said she was accused of disturbing the social order and the police told her not to attend the church anymore. The Tribunal asked her what happened when the police attended. She told the police that she was not doing anything wrong and that because the churchgoers believed in God they should share their experience. The police poked her with a stick. The Tribunal confirmed that nothing else happened as a result of the police attending. This one isolated incident happened approximately six months after she returned from [Country 1] in September 2011.
35. In order to establish what claimed harmed she had suffered in China as a result of her Christian beliefs took some probing by the Tribunal. The Tribunal asked the applicant why it required a number of questions before she stated what had occurred. She responded that she did not understand that the questions were about this sort of harm. She said that the biggest harm she faced in China was during her first marriage, which ended in 2003 (described above).
36. In relation to her church attendance in Australia, the applicant claimed that she had been attending the [Church 1] in the [suburb]. She went to that particular church because it was close to one of the [shops] where she worked. The applicant provided a photocopy of a Certificate of Water Baptism dated [in] October with no reference to a year[6]. The Tribunal asked the applicant if she has a supporting statement from the pastor about her attendance. She responded that two days prior to the hearing she was asked by a group member and pastor if she would like a supporting statement. She replied to them that God would protect her. The Tribunal asked her whether she would be able to obtain one. On 25 July 2016 the Tribunal received a letter dated 20 July 2016 from a Pastor [name] of [Church 1] which certifies that the applicant “was baptised in [Church 1] [in] October 2014 and she has been attending our Sunday services regularly”[7].
[6] AAT file, folio 25.
[7] AAT file, folio 32.
37. The Tribunal asked the applicant what her faith meant to her. She said if she does not have this belief she does not want to live because life is meaningless. She said that relationships at work and with parents would not be good because her temper is not good. Without belief she would not obey her mother.
38. The Tribunal asked the applicant what the most significant Christian event is for her. The applicant responded that for a week she can share her bitterness with other people. If she doesn’t go to church she feels uncomfortable for a day. That Tribunal asked the applicant what the significance of Christmas is she said if she does not believe in God she will die. The Tribunal asked her what Christians celebrate at Christmas she said the hymn and the sermon. The Tribunal asked her what is celebrated at Easter. She said birth and the resurrection.
39. The Tribunal asked a number of further questions in relation to the use of the Bible in the[Church 1] . She responded that they use the Bible and preached according to the chapters and verses of it. The Tribunal asked her which Testament the Gospels are in. Rather than responding to that question, she asked if she could describe the gospel according to Mark. When the Tribunal prompted her that the Bible contains two testaments she was able to say in the New Testament. The Tribunal asked her how many Gospels there are she responded Mark, Luke, and then after a time said the Genesis and the Corinthians I and II.
40. The Tribunal asked the applicant if she could describe one of the miracles of Christ. She talked briefly about our lame person who was carried by people and when he was touched by Jesus Christ and then was able to stand. She said he healed the blind and when Jesus brought 12 disciples to preach everywhere, Jesus healed the blind and a person who was oppressed by big stone and also Satan was saved by Jesus Christ.
41. The Tribunal outlined to the applicant information contained in the Department of Foreign Affairs (DFAT) Thematic Report entitled Unregistered religious organisations and other groups in the People’s Republic of China, and asked her why she would not be able to participate in one of the state-sanctioned Three-Self Patriotic Movement churches of which there are approximately 60,000 in China[8]. She responded that there is only one church in her village. The Tribunal suggested to her that she could consider relocating. She responded that the Three-Self churches put restrictions on people and force them to donate. She said in Australia it is up to the individual to voluntarily offer donations. She also commented on the fact that in people in churches in China do direct selling, such as insurance. The Tribunal asked whether in relation to her beliefs there is a reason she could not attend such a church. She responded that when she was baptised she was very excited and thought she was very pure but she did not have that kind of feeling in China. In China she did not feel like the spirit is near her.
[8] DFAT Thematic Report entitled Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015
42. Although the Tribunal was prepared to accept that the applicant was baptised in Australia and attends services regularly the Tribunal was not satisfied based on the evidence about her beliefs, her experience and knowledge of Christianity that the applicant is a genuine adherent of Christianity.
43. The Tribunal was not satisfied the applicant was involved in a church group in China nor that the police attended and poked her with a stick based on the vague evidence which was not easily obtained regarding.
44. The Tribunal was not satisfied that she would continue to practice should she return to China.
45. The Tribunal considered the possibility that the applicant may be perceived to be a Christian on return to China given her baptism and attendance at the [Church 1]. There is no suggestion that there is anything in the applicant’s background that has brought her to the attention of Chinese authorities as a result of these actions. In this context the Tribunal also considered DFAT’s report on Unregistered religious organisations and DFAT’s Country Report[9] and is satisfied that the applicant is not at real risk of serious of significant harm if she returns to China because of any imputed beliefs in Christianity.
[9] DFAT Country Report People’s Republic of China, 3 March 2015.
Visit to [Country 2]
46. The applicant returned from [Country 1] in March 2011 and left again in July for [Country 2]spending two weeks there despite the fact that she claimed she returned to China due to a family illness. She explained that it was her father rather than her mother who had become ill when she was in [Country 1] and because she had a good relationship with her father, as opposed to the relationship with her mother, she decided to return to China. She was prepared to do this even though it meant sacrificing the refugee status that she had obtained in [Country 1].
47. The Tribunal asked the applicant why she went to[Country 2]. She stated it was because it is easier to get a visa for[Country 2]. She went on to say personally she likes the country to be more humanitarian but that [Country 2] is not that sort of country. She undertook a tour in [Country 2] and had intended to apply for protection but while she was there she came to the realisation that [Country 2] is not a friendly country referring to the war between [Country 2] and China. The Tribunal put it to her that she would have known about previous armed conflicts between [Country 2] and China and it did not make sense that she would travel there to seek protection and then decide that the history between the two countries was unpalatable to her. She responded that she found that she was scared of [Country 2] people. [Information deleted]. The Tribunal asked her when she watched this television series. She said she watched it since she was as a child. The Tribunal again queried her as to why she suddenly had the realisation while she was in [Country 2] that this would not be a country that would suit her. She responded it was because she now had personal experience in [Country 2].
48. The Tribunal was not persuaded that the applicant decided not to seek protection in [Country 2] for the reasons stated, that is, because she had come to the conclusion that [Country 2] is not a friendly country, that she was fearful of [Country 2] because of historic conflict between China and [Country 2] and because of a television series about the war showing [certain events]. The Tribunal found that had the applicant genuinely felt at risk of serious or significant harm she would have sought protection in [Country 2]. This aspect of her claims further undermined her credibility as a witness and put into question elements of her claims.
Is there a real chance or a real risk of serious or significant harm occurring to the applicant if she returns to China?
49. While the Tribunal was prepared to accept elements of the applicant’s claims, overall it had concerns about aspects of the evidence critical to the Tribunal being satisfied that the applicant faces a real chance or real risk of serious or significant harm if she returns to China.
50. The Tribunal accepts that the applicant came to Australia on a [temporary] visa application. The applicant freely admitted that the information and materials provided for that application were fabricated. From this, it is clear that the applicant is prepared to provide dishonest information and is capable of deliberately misleading the Australian immigration authorities
51. The Tribunal accepts that the applicant’s first marriage was a difficult one and that she suffered domestic violence in that marriage and that she and her husband divorced in 2003. The Tribunal notes that the applicant did not raise specific protection claims in relation to that relationship nor did she express a subjective fear of harm from her first husband.
52. The Tribunal accepts the applicant had a [business] and as a result of a dispute with one individual who did not pay her for some work undertaken was harassed by him and people working for him. The Tribunal notes that the applicant did not claim she currently fears harm as a result of that incident.
53. The Tribunal does not accept that the applicant travelled to [Country 2] in order to seek protection but did not do so because she had come to the conclusion that [Country 2] is not a friendly country, that she was fearful of [Country 2] because of historic conflict between China and [Country 2] [information deleted].
54. The Tribunal does not accept that the applicant became a Christian when she was living in [Country 1]. Her level of knowledge of Christianity was extremely rudimentary and does not support a claim of someone who took up Christianity approximately 10 years ago.
55. The Tribunal also does not accept that the applicant attended a church in China or that police ever warned her off attending a church in China. Her evidence of this was only drawn out with a high degree of prompting and was not sufficiently detailed to satisfy the Tribunal.
56. The Tribunal does accept that the applicant has been attending the [Church 1]since she arrived in Australia and has been baptised. However, the Tribunal could not be satisfied that she would continue to attend church should she return to China. Aside from stating her faith is extremely important to her she did not elaborate how or why nor did she demonstrate her knowledge of Christianity. Her responses left very significant concerns about the genuineness of her beliefs.
57. The Tribunal is satisfied that the applicant is not at real risk of serious of significant harm if she returns to China because of any imputed beliefs in Christianity.
58. Considering the applicant’s claims individually and cumulatively the Tribunal was not satisfied that there is a real chance or a real risk of serious or significant harm occurring to the applicant if she returns to China.
CONCLUSIONS
59. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
60. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).]
61. 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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Linda Holub
Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Natural Justice
0
0
0