1503996 (Refugee)

[2015] AATA 3569

1503996 (Refugee) [2015] AATA 3569 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503996

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Holub

DATE:29 October 2015

PLACE OF DECISION:  Sydney

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

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Statement made on 29 October 2015 at 4:36pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicants, who claim to be citizens of China, applied for the visas [in] April 2014 and the delegate refused to grant the visas [in] February 2015.  The applicant husband arrived in Australia [in] December 2007.

3. The applicant husband and applicant wife appeared before the Tribunal on 6 October 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

RELEVANT LAW

1. 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.

2. 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).

3. 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’).

4. 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

Background

1. The applicant [husband] was born on [date] in Fujian Province, China and arrived in Australia on a student visa [in] December 2007.  He lodged a Protection visa application [in] April 2014.  The application covers his [wife] (the applicant wife) born on [date] in Fujian Province, China and his [child] (applicant three) born on [date] in [Australia].

10.  The issue in this case is whether the applicant’s claims of being a Roman Catholic and fears of being persecuted and imprisoned give rise to a real chance of serious or significant harm on his return to China and in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11.  The applicant claimed that:

a)    His parents were both members of the Roman Catholic underground church;

b)    As a result of the tense political situation following the 1989 Tiananmen Square protests, his parents did not have an opportunity to arrange for him to be baptised in the underground Catholic Church;

c)    When his parents had begun to make preparations for his baptism in 1994, following the birth of his [sibling], his father was unexpectedly arrested by the Public Security Bureau (PSB) in [1994] for allegedly transporting publications from [Country 1] to China.  His father was [occupation] and had contact with [people] from [Country 1].  Following his arrest he was sent to a re-education through labour camp and was imprisoned for three years;

d)    His mother was implicated in his father’s case and she was subjected to investigation by the PSB.  As a result of that she was unable to attend the underground church for years;

e)    After his father was released, the family was constantly harassed by police;

f)     As a result of this background, the applicant was discriminated, bullied, harmed or mistreated by other students.  He became rebellious and started to associate with some “hooligans in the street”;[1]

g)    His parents arranged for him to study in Australia.  He ceased studying because he found that despite what he had been led to believe he was unable to support himself in Australia while studying and his family was unable to provide financial support.  He subsequently “lost his way and drifted along aimlessly for a long time”;[2]

h)    In December 2011 his father fell seriously ill and his mother encouraged him to go to church and pray for his father;

i)   Since December 2011, he has been regularly attending a Catholic church in [a] suburb;

j)   From May 2012 to March 2013 he participated in Catechism classes at the church and was baptised [in] March 2013;

k)    He met his wife in October 2012 who also became a Catholic and who was baptised [in] September 2013.  They married [in] October 2013 and their [child] was born on [date];

l)   They had considered returning to China but his [other sibling] who had played an active role as a liaison officer in the underground church was arrested in March 2014;

m)  His parents became implicated in his [sibling]’s case and they and his [sibling] were once again of interest to the authorities and were interrogated, beaten, mistreated and tortured by the police;

n)    He is afraid that he might be implicated by his [sibling]’s case if he goes back to China and might also be persecuted because of his Roman Catholic beliefs.

[1] DIBP file, folio 42

[2] Ibid., folio 41

12.  The applicant provided:

a)    a certified copy of his marriage certificate;

b)    certified copies of baptism certificates for himself, his wife and his [child];

c)    a certified copy his [child]’s birth certificate;

d)    a number of photos of the applicants’ wedding and attendance at various religious and church events;

e)    a translated document regarding the detention of his [sibling];

f)     a translated document regarding the detention and imprisonment of his father;

g)    letters of support of fellow church goers regarding the applicants’ involvement in various church activities, and

h)    a letter of support from [a priest] indicating that both applicants one and two have been regularly attending Mass since May 2010 and December 2012 respectively.  It notes that the dates were provided to him by the applicants.

13.  The day after the hearing, the applicant wife submitted a statement claiming that:

a)    Following the hearing on 6 October, “[her husband] thought he had made a lot of mistakes, which might make his whole family be faced with being deported back to China” .[3]

b)    Her husband “had mental problems suffering serious insomnia … later on I knew that this is because he had been bullied and mistreated before by the students and teachers in school due to the arrest of his father…One day he told me that once he was slapped in the face by almost all the boys by turn so that his face became red and swollen and deformed while the teacher that he deserved such punishment as he was guilty”.[4]

c)    With her encouragement, he sought treatment through a traditional Chinese doctor.

d)    “… this letter might be suspected to help my husband get “cleared up” and in fact to respect my husband’s self-esteem and dignity we have never told, or been willing to tell people about is mental problems”.

[3] AAT file, folio 87

[4] Ibid., folio 87

14.  The statement was accompanied by one from [a] TCM Practitioner and Acupuncturist, indicating that he has been treating the applicant husband since March 2013 “for his mentality health problems (stress).  He was nervous and anxious, emotional and frightened sometimes.  I treated him with Chinese herbal medicine and Acupuncture.  He started to become better after 2 years treatment, but he still insomnia frightening tiredness due to heavy pressure (sic)”.[5]

[5] ATT file, folio 86

15.  The Tribunal has had regard to the information provided regarding the applicant’s mental condition.  These submissions were provided at a very late stage in the application process after the applicant thought he may not have provided fully convincing answers at hearing.  Further, the Tribunal noted that there have been no previous references or claims regarding the applicant’s mental state.  The Tribunal has also taken into account that the supporting statement was not provided by a medical practitioner/psychologist with training in mental health issues.

FINDINGS AND REASONS

Nationality

16.  On the basis of the applicants’ passports issued by the People’s Republic of China, provided to the Department of Immigration and Border Protection, the Tribunal finds that the applicant husband and the applicant wife are citizens of China.  There is nothing in the evidence before the Tribunal to suggest that the applicants have a right to reside in any country other than China.  The Tribunal has considered the status of applicant three, the [child].  As the child of two Chinese nationals, the Tribunal is satisfied that [the child] is also a Chinese national.

17.  The Tribunal finds that the claims should be assessed against China for the purposes of the Convention in s.36(2)(a) 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).

Claims of Catholicism in China

18.  The applicant husband claimed a long association with Catholicism in China through his parents and both paternal and maternal grandparents, but had never been baptised in China due to a number of political and personal issues that arose at critical times.  He claimed the political climate in China following the Tiananmen Square incident in 1989 was not conducive to being baptised and then in 1994 when his parents were planning to baptise him and his [sibling], his father was arrested.  While it is plausible that it may not have been convenient at particular times to undertake a baptism, the Tribunal was not satisfied that at no time over many years, long standing Catholics would not have found an opportunity to have their son baptised, even if the ceremony was a simple one.

19.  The Tribunal acknowledges that not all Catholics in China have the capacity to baptise their children, however, it `has had regard to information sourced from Department of Immigration and Border Protection Country of Information Section[6] which indicates that:

“While knowledge of the meaning of the sacraments may not be general among Chinese Catholics, the sources indicate that Catholics are expected to receive the sacraments, especially baptism. Catholic funerals, while not a sacrament, are held to be particularly important by all Catholics.

Joseph Kung has stated that it is necessary to receive the sacrament of baptism and the other required sacraments (presumably especially Eucharist (Holy Communion) and Penance and Reconciliation (Confession)) yearly to be a true underground Catholic:

It is one’s baptism, which parish one belongs to, whether receiving yearly the required Sacraments are the deciding factors to prove one’s identity if one is an underground Catholic.[7]

Madsen has similarly noted the importance of baptism in China[8],  as well as the importance of a Catholic marriage for Chinese Catholics.[9]

[6] DIBP, Country Advice China, CHN35942 – Catholic prayers and sacraments, 15 January 2010

[7] Kung, Joseph 2009, Email to RRT ‘Re: Information Request about Catholic Church in China (Ref: CHN35792)’, 8 December – Attachment 2

[8] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, pp.86, 88-89  – Attachment 1; see \\NTSSYD\REFER\Research\Response\Syd2009\chn35792.pm.doc for further discussion.

[9] Madsen, R. 1998, China’s Catholics: Tragedy and Hope in an Emerging Civil Society, University of California Press, Berkeley and Los Angeles, p.56 – Attachment 1

20.  The Tribunal considers these general expectations regarding the sacraments would be reasonably consistent over time and consequently would apply in relation to this applicant.

21.  The Tribunal does not accept that the applicant husband was a Roman Catholic or that he comes from a Roman Catholic family.

Persecution in China

22.  The applicant husband gave evidence that his father was arrested in March 1994 for transporting and distributing religious materials from [Country 1] [people] with whom he had contact in the context of being [occupation].  He claimed that his father was held in a labour camp for three years.  The family was constantly monitored even when his father was being held in detention.  When asked how he knew the family was being constantly monitored, he responded that his family home was situated behind the local police station.  The response did not satisfy the Tribunal that the proximity of the home to the police station necessarily meant the family was constantly monitored.

23. The Tribunal has considered the documentation provided as corroborative evidence regarding the arrest of applicant husband’s father [through] Labor Program – Decision on Sentence under Reform through Labour Program[10].  However the Tribunal has regard to information provided in the DFAT Country Report that:

“5.26  DFAT is aware of fraudulent documents being used in support of visa applications (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards). DFAT assesses these documents are relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents used in visa applications”[11]

and therefore does not accept this document as evidentiary proof.

[10] Ibid, folio 72

[11] DFAT, Country Report People’s Republic of China, 3 March 2015, p.21

24.  The applicant husband was unable to provide any details on what bullying and harassment he was subjected to at school despite these claims being explored at some length at hearing.  He was also unable to explain why he thought the bullying was linked to his family’s religious beliefs.  Given school yard bullying occurs extensively in most school yards, the Tribunal sought to clarify how the applicant husband was able to draw the link between the way he was treated and the family’s beliefs.

25.  The Tribunal notes the submission made by the applicant wife following the hearing that the applicant husband was suffering from insomnia and according to the Traditional Chinese Medicine (TCM) practitioner and acupuncturist “nervous, anxious, emotional and frightened”[12].  The Tribunal did not regard the applicant husband as particularly nervous.  The Tribunal saw his manner to be in the range of what is reasonable for a person appearing at a Tribunal hearing.  Having said that, the applicant husband was unable to provide any level of detail, provided confused, circulatory and rambling answers regarding most of his claims.  For example, when asked whether his school friends knew that he was Roman Catholic, he responded by saying “I think they knew.  At that time I was not a real underground Roman Catholic member”.

[12] Ibid., folio 86

26.  If the applicant husband’s ability to recall and explain details about what occurred had been impeded because of his nerves and insomnia at hearing, the Tribunal would have anticipated that any subsequent submission would have included further details when he was feeling more relaxed and less tired.  The applicant husband claimed at hearing to have been subject to bullying and harassment at both primary and high schools for a period of some 6-7 years until he left school, so it could be reasonably expected he would be able to detail some of his experiences.

27.  The applicant husband claimed that his [sibling] was arrested in 2014 because of [his/her] role as a contact person in the underground church.  Prior to [the] arrest the applicants were considering returning to China.  This was another claim against which the applicant husband was only able to provide scant detail and only when pressed, including being unclear when his [sibling] was detained and for how long.  The Tribunal considers that the arrest of one’s [sibling] is a serious and significant event and that the applicant husband could reasonably be expected to know when his [sibling] was arrested, particularly as he claimed that this was the reason he did not return to China.  The lack of detail and clarity on this issue contributed to the Tribunal’s concerns regarding the applicant husband’s credibility.

28.  The Tribunal considered the document provided as corroborative evidence regarding the arrest of the applicant husband’s [sibling] from the [District] Public Security Bureau – Notification on Detention[13].  As with the Tribunal treatment of the written evidence regarding the father’s detention, the Tribunal has taken into account the DFAT advice cited above regarding the easy access to fraudulent documentation in China and consequently, the Tribunal does not accept this document as proof of his [sibling]’s detention.

[13] Ibid, folio 70

29.  As the Tribunal was not satisfied that the family was involved in the underground Roman Catholic Church in China, it follows that the Tribunal was not satisfied that the applicant husband’s father and [sibling] were arrested and held for the reasons stated nor that the applicant husband was bullied and harassed at school. The Tribunal formed a form on the cumulative weight of evidence that the applicant husband was not generally a credible witness with a general lack of detail, openness and consistency being evident.

Claims of Catholicism in Australia

30.  The applicant gave evidence that he was prompted by his mother to attend church in Australia when his father became ill.  At the hearing the applicant husband was confused as to whether this was in 2013 or in 2011 (as stated in his written application).Be that as it may, evidence was presented that he subsequently started to attend a Catholic church in [a] suburb on a regular basis.

31.  The applicant husband commenced catechism classes in 2012.  Again, the applicant husband was confused about when he commenced these.  He claimed he attended church regularly each Sunday and at big religious festivals.  He was baptised in March 2013.  The applicant responded to a number of questions about his faith and Catholic doctrine adequately, but not at a level of depth that might be expected from someone who comes from a family of two generations of Catholics.

32.  Based on the answers to questions put and the supporting statements provided, the Tribunal is satisfied that the applicants have become Roman Catholics and regularly attend Church in Australia.  The Tribunal has considered the application of s.91R(3), in regard to the applicants’ involvement in the church.  Given the applicant husband commenced catechism two years prior to his Protection visa application and given the supporting statements from a number of fellow parishioners.  The Tribunal is satisfied that the applicants are also gaining some social benefits from their involvement.  On that basis, the Tribunal is satisfied that the involvement in the church is for reasons other than for the purpose of strengthening their protection claims.

Practice of faith in China should the applicants return

33.  The Tribunal asked the applicant husband why he would not be able to participate in a State-sanctioned church in China.  He responded very clearly and emphatically that churches aligned with the Chinese Catholic Patriotic Association are “not real Catholic Churches.  They are led by Chinese authorities and not governed by the Pope in the Vatican”.  He went on to say they the clergy never receive ordination”.  The Tribunal notes that this answer was in stark contrast to the manner in which he responded to a similar question put by the delegate of the Department of Immigration and Border Protection during the course of his interview.  The delegate noted in his decision:

“Also of particular significance was the fact that the applicant was asked on six occasions for a reason as to why he could not practice his faith in the official CPA Catholic Church but was unable to provide a plausible or meaningful explanation”.[14]

[14] DIBP file, folio 85, page 2

34.  The Tribunal was satisfied that the response given at the hearing was rehearsed for the purposes of the hearing and to satisfy questions regarding this point given it was an issue at the primary decision level.  The answer was presented very differently to most of the other responses provided by the applicant husband during the course of the hearing regarding his claims.  It was clearer and more emphatic and one of the several aspects of the evidence presented which undermined the applicant husband’s credibility.  Further, it undermined the applicant wife’s subsequent submission regarding the mental health condition of her husband.

Independent information - Underground Catholic Church participation in China and Fujian

35.  The following information is contained in DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015:

“3.13 Catholic activity has been growing steadily in China for three decades. The Chinese Catholic Patriotic Association (CPA) has managed Catholic affairs in China, including the appointment of Bishops, since 1957. The CPA does not recognise the authority of the Holy See to appoint bishops. From 1993 until 2010, the Vatican and CPA had struck an informal arrangement in some provinces, where the Vatican had some discreet input or even right of approval for bishop candidates prior to their ordination by the CPA. However, since 2010, the majority of bishops were ordained by the CPA without Vatican input. In April 2013, the CPA announced the Regulation on the Election and Consecration of Bishops, requiring candidate bishops to publicly pledge support for the CCP.

3.14 Catholics who refuse to acknowledge the authority of the CPA have been described as “underground” or “unofficial” Catholics. There are approximately 40 Catholic bishops that remain independent of the CPA and operate unofficially.

3.15 In the past, local authorities required priests to submit sermons and prayers in advance for approval and to regularly provide names and addresses of congregation members. Credible sources have told DFAT this was no longer required in areas where the Catholic Church had managed to build trust with local officials over time.

3.16 Reports issued by the United States Commission on International Religious Freedom indicate that dozens of Catholic clergy, including three bishops, remain in detention, in home confinement, or disappeared in 2013. Overseas travel by prominent church members or leaders is largely viewed by authorities as out of bounds, owing to long-held fears about foreign funding or influence on communities in China. According to media reports, around half of 100 students who had planned to travel from China to South Korea to attend the Asian Youth Day event in August 2014 were prevented from attending.

3.17 As with members of Protestant churches in China, Catholics in China can experience officially-sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive. Incidence of societal discrimination and violence against Catholics in China is generally low”.[15]

[15] DFAT Thematic Report, Registered religious organisations and other groups in the People’s Republic of China, 3 March 2015. Paras3.1.13-3.17

36.  A report from the Country of Origin Information Section of the Department of Immigration and Border Protection dated 11 November 2013 on the treatment of underground Catholic Church members by authorities in Fujian province states:

“In Fujian province, as in the rest of China, there is an official Catholic Church (the Chinese Catholic Patriotic Association or CPA) which owes its allegiance to the Chinese Communist Party, as well as an underground Catholic Church which maintains its allegiance to the Vatican. Most sources estimate the number of Catholics in Fujian at around 200,000 (or around 0.6% of Fujian’s population of 35 million).[16] Fujian is generally considered to enforce regulations on religion less stringently than other provinces in the PRC.[17] However, police and local officials have sometimes arrested underground Catholic priests and, although not recently, police and officials have arrested parishioners and demolished churches.[18] Chinese authorities have also appointed bishops to dioceses in Fujian without the approval of the Vatican.[19]

Mindong diocese in south-eastern Fujian province has an underground bishop who leads nearly fifty priests and approximately 97 per cent of the 70,000 underground Catholics; the registered bishop leads seven or eight priests and three per cent of the faithful.[20] An article sourced from the Miami Herald, dated 14 January 2007, claims that the Chinese Communist party has “partially relaxed its grip on religious activity” in parts of the PRC, and that in Nanping, in Fujian, “religion thrives”. The article also indicates that in Nanping a “state-controlled Catholic Church draws new members, as does a parallel but underground Catholic Church that’s loyal to the Vatican”.[21]

Few recent reports were found of problems for Catholics in Fujian, the most recent being a 24 March 2010 article on the Catholic news website Asia News IT. The report details the arrest of Father Liu Maochun, an underground Catholic priest from the diocese of Mindong, for being involved in the organisation of a camp for university students. Another priest involved in the camp, Father John Baptist Luo Wen, had reportedly been arrested previously and released after 15 days imprisonment. The article further notes that two other priests involved in the camp “received a notice of detention and expect to be taken into custody in the near future”.[22]

There have been no reports of church demolitions in Fujian since 2006.[23]

[16] The number of 200-210,000 is given by three sources: Liu, W T & Leung, B 2002, ‘Organizational Revivalism: Explaining Metamorphosis of China’s Catholic Church’, Journal for the Scientific Study of Religion, 41:1, p.133; Lambert, T 2006, China’s Christian Millions, Monarch Books, Oxford, p 241; Charbonnier, Fr J 2008, Guide to the Catholic Church in China 2008, China Catholic Communications, Singapore, p.517, MRT-RRT Library; Christian website Operation World, however, estimates the number of Fujian’s Catholics as 400,000: ‘China’ 2010, Operation World website, 15 January < > Accessed 11 May 2010

[17] Lambert, T 2006, China’s Christian Millions, Monarch Books, Oxford, pp.240-1

[18] For example, see: ‘Another underground priest arrested in Fujian’ 2010, Asia News IT, 24 March < Accessed 20 April 2010 <Attachment>;’Church destroyed in Fujian, another to follow shortly’ 2006, Asia News IT, 4 September < Accessed 21 April 2010

[19] Macartney, J 2006, ‘China provokes Pope by naming bishop without Vatican’s blessing’, The Times, 15 May

[20] ‘Another underground priest arrested in Fujian’ 2010, Asia News IT, 24 March < Accessed 20 April 2010

[21] Johnson, T 2007, ‘In China, Christianity rises again; RELIGION’, The Miami Herald, 14 January

[22] ‘Another underground priest arrested in Fujian’ 2010, Asia News IT, 24 March < Accessed 20 April 2010

[23] ‘Church destroyed in Fujian, another to follow shortly’ 2006, Asia News IT, 4 September < Accessed 21 April 2010

37.  The Tribunal, for the purposes of a decision in another case, sought an update from the Country of Origin Information Section to this earlier report as to the treatment of Catholics in Fujian province. The response indicated that there was no more recent information about the treatment of Catholics in Fujian province since 2013.[24]

[24] China: CHNC1150415082947654 – Catholics in Fujian Province – State-recognised and Vatican-recognised Catholic churches in Fuqing city, Fujian, 18/06/2015

38.  That same response notes Lambert’s writings on the Protestant community in China, where he provides a short overview of churches in Fujian:

“There are about 210,000 Catholics in Fujian.  In general, the official religious policy has been applied relatively liberally in Fujian, although there have been occasional crackdowns on house churches and underground Catholics”.[25]

[25] Lambert, T,

39.  “According to University of Notre Dame commentator quoted in an August 2014 New York Times article, about half of China’s Catholics worship at underground, as compared with officially sanctioned, churches”.[26]

[26] Wong E, 2014, ‘For Chinese, Pope seems worlds away in South Korea’ 2014, New York Times, 17 August < Accessed 18  June 2015 < CX1B9ECAB10932>

40.  The Tribunal has had regard to the fact that the information regarding the treatment of underground Roman Catholics varies from time to time and from place to place, even in Fujian Province, which on the whole, has a long history of being more tolerant.  Moreover, the Tribunal is satisfied there are very large numbers of Catholics practicing their faith and participating in both the state-sanctioned and underground churches without being persecuted or harassed, particularly where they have not involved in any political activities.  The Tribunal is satisfied that the applicant husband has options regarding the manner in which he maintains his faith should he return to China, given he is not a person of interest to Chinese authorities and has not engaged in any activities that would draw attention to himself.

Wedding photos

41. A number of wedding photos were submitted as part of the Protection visa application.  The applicant husband and applicant wife provided different responses as to when the photos were taken.  The applicant husband first said they were taken before and then said they were taken after the wedding, while the applicant wife gave evidence that the photos were taken on the day of the wedding. While in itself this is a minor point, it contributed to overall impression that the evidence put forward by the applicants was not credible.  Given the significance of a wedding in a young person’s life and given the wedding occurred only two years ago and given the photos were provided as evidence to support the claims contained in the application the Tribunal is satisfied that this lack of consistency is sufficiently significant to contribute to an overall impression of the applicant’s lack of credibility.

Relocation options in China

42.  At hearing the applicant husband was asked why it would not be possible for him to return to China and relocate to an area where his family was unknown.  The applicant husband responded by saying that everywhere you go it’s the same and that he would face discrimination.

43.  In coming to a final decision, the Tribunal acknowledges that the issue of relocation is not relevant in this case because in the final analysis the Tribunal has satisfied itself that neither the applicant husband nor his family face a real chance of serious or significant harm in China now or in the reasonably foreseeable future.

FINDINGS AND REASONS

Has the applicant or his family suffered any of the claimed harm?

44.  For the reasons already stated that Tribunal is not satisfied that the applicant husband comes from a family of Roman Catholics practicing in the underground church in China.  As a consequence of this, the Tribunal is satisfied that neither he, his father or [sibling] suffered the claimed harm.

Is there a real chance or a real risk of the applicant’s suffering serious or significant harm if returned to China?

45.  The Tribunal is satisfied that the applicant could return to China and practice his faith in the underground Roman Catholic Church. The country information referred to amply demonstrates that many Chinese practice their faith in the underground church without persecution or harassment.  DFAT Country Information referenced previously, refers to the fact that “Catholics in China can experience officially-sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive. Incidence of societal discrimination and violence against Catholics in China is generally low”[27].  In coming to this view, the Tribunal has taken into consideration that the applicant has not been politically active nor has he engaged in politically sensitive activities.  As such the Tribunal is not satisfied that there is a real chance that the applicant faces serious harm or a real risk that he faces significant harm now or in the reasonably foreseeable future.

[27] DFAT, op.cit., p 17

CONCLUSIONS

46.  For the reasons set out above, the Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a) of the Act.

47.  The Tribunal also considered the alternative criterion in s.36(2)(aa). For the reasons set out above, the Tribunal is also not satisfied the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

DECISION

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

Linda Holub
Member