1504021 (Refugee)

[2016] AATA 3786

1504021 (Refugee) [2016] AATA 3786 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504021

COUNTRY OF REFERENCE:                  China

MEMBER:Rachel Westaway

DATE:20 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2016 at 4:55pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of China, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 15 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 applicant was represented by a migration agent, however the applicant’s agent did not attend the hearing.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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

20. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

21. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

22. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

23. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

24. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

25. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether the applicant’s claims are credible and if they are, whether he faces a real risk of significant harm for his religious beliefs and practices in China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

27. The applicant is a [age] male from China and he applied for a protection visa [in] October 2013. He claims to be of Han Chinese ethnicity and of Christian religion.

28. The applicant came to Australia with his mother. He was granted a [student] visa. The applicant’s mother was granted a [student guardian visa].

29. The applicant and his mother entered Australia [in] October 2007. The applicant’s mother applied for a protection visa [in] August 2008 and the applicant was the dependent on this application. The application was refused and the applicant sought review at the Refugee Review Tribunal.

30. As the applicant’s initial protection visa was refused prior to the implementation of complementary protection criteria on 24 March 2012 and his subsequent protection visa application was lodged after this date, the applicant was not barred under S.48A of the Act and was able to make a further application for review on the basis of complementary protection. The applicant made a new application on the basis of complementary protection only. This was refused [in] March 2015. The applicant applied for review with the Administrative Appeals Tribunal and a hearing took place on 15 October 2015.

31. The applicant supplied a copy of the delegate’s decision to the Tribunal when he applied for review.

32. The applicant made the following claims in his visa application:

    ·He left China to study and came to Australia when he was [age]. The applicant is now [age] at the time of review.

    ·He fears returning to China as he will be persecuted by the authorities and harmed by the villagers because he is a practicing Christian. He claims this to be the case because his mother returned to China and continues to practice Christianity and the authorities give her a hard time.

    ·The applicant stated that police have raided his house and interrogated individuals there. No arrests were made but people were physically intimidated and threatened and treated with disrespect.

    ·The applicant stated that the neighbour who had a different religious belief seized their land and the government turns a blind eye and the police will not assist them and threaten to charge them with disturbance. The applicant claims they receive no help or protection.

    ·The applicant fears harm from villagers and PRC authorities

    ·The applicant stated that his mother has been mistreated when she returned to China. She was detained by authorities and the applicant’s father had to pay bribe money to have her released. He claims her household registration was deregistered because the applicant’s father continued to preach Christianity when the applicant and his mother departed China for Australia. The applicant stated that his mother has not been able to reregister because his father continues to preach.

    ·The applicant claims his mother has been discriminated against. She was denied access to social benefits provided by the government and allowed neighbours to take their land and the police do not protect them.

33. The applicant supplied a copy of the delegate’s decision to the Tribunal for the current review. It confirmed that the applicants have previously had a PV application refused and that the applicants did not have a well-founded fear of persecution for a convention reason if they returned to the PRC. The RRT decision stated that the applicant’s mother provided contradictory and conflicting information and that the applicant was not a truthful witness. It further stated that the applicant said that he did not have any claims of his own and relied on his mother’s claims.

34. In regard to the decision on the application which is the subject of this review, the delegate refused the application on the basis that she had doubts as to the credibility of the applicant’s claims. She found that the applicant’s responses lacked detail and were inconsistent with that of a practicing Christian. The delegate did not accept the applicants claim about confiscated land, family arrests or the claims about the Hukou.  

35. At the hearing, the applicant confirmed that he applied for this visa by himself and he did not wish to make any changes and recalls everything provided to the Tribunal. The applicant stated that he was upset that when he attended the interview with the Department, the Department officers laughed at his stories and went for a ten minute rest. The Tribunal noted his concerns.

36. The applicant confirmed he was [age] at the time of the hearing and that he was born in Fujian China. He claims to be a practicing Christian. He stated that he is a member of the Local Church.

37. The Tribunal asked the applicant if he believes in the Pope or Virgin Mary and he stated that he only believes that Jesus is our saviour.

38. He provided the following information about his background in China. He said he lived at home until he attended junior school and he boarded at the school. He said it was 40 minutes by bus from his family home. He claims he did not complete junior school and did not go to senior school. His family consists of his mother, father and [siblings].

39. The Tribunal asked the applicant how his family were permitted to have multiple children under the one child policy. The applicant stated he was little so he didn’t know if they experienced problems but they lived in the country which made it easier. He stated that since his mother had a [number] child, (his [Sibling A]) they hide from authorities. He claims that their neighbour turned them in and so his [Sibling A] couldn’t receive a Hukou for a few years however the family paid money to get the Hukou. The applicant stated that his [siblings are various ages. They don’t live with parents. His [siblings] are studying and [Sibling A] works in a restaurant.

40. The applicant confirmed that his father in unemployed and his mother earns money by [occupation].

41. He stated that the last time he spoke with them was two months ago but they do not speak often.

42. The Tribunal asked the applicant why he left China. The applicant claims that he was in school and did not know a lot at the time. He claims that in 2006 his mother was detained for 6 months for practicing Christianity but the family did not tell the applicant. After she was released she decided to go to Australia. He said that it was because it was the easiest country to come to and have free religion and free gatherings.

43. The applicant stated they knew no one on arrival into Australia. They don’t have relatives and friends and didn’t know there was a protection visa available. They gradually joined the church and also came to know through people at the Church that there was a protection visa that they could apply for. The applicant stated that he was [age] at the time and did not speak English.

44. The Tribunal put to the applicant he had no claims of his own when he made his first application. The applicant agreed and stated that he did not know much about God but “through those years of study” he realised “he cannot live without God”.

45. The applicant stated that he fears returning back to China to live with his family. He stated that he knows his family have local church gatherings in the home and have been arrested and questioned by police. The applicant stated that all he wants is to have peaceful gatherings. The applicant confirmed that he was not at any gathering in China when raids occurred.

46. The applicant stated that as soon as there is a gathering that neighbours know about, they report it to police. The police believe that the gatherings have an anti-communist agenda. He said that neighbours would accuse them of being Shouters. The applicant then stated that he and his family members are members of the Shouters Church.

47. The applicant stated that it comes from the Bible, people can only be saved if they call Gods name out aloud.

48. The applicant stated his family are all members of the church. He said that all of his siblings attend the church. The applicant claims that his family attend 2-3 times per week. He stated that if he or his siblings were at school they would only attend on Sundays.

49. The Tribunal asked the applicant where the church is located. He explained the church is located in China everywhere. The applicant gave an example of a Church in suburbs. It is in his village. It swaps between homes in his village. He said there is no time table. It operates just on the needs of the family that need help from God and they pray and sing songs.

1. The applicant stated that in Australia it is slightly different and that he attends the church in [suburb], [state] once a month and also one at [Suburb 1] primary school. He stated that it operates in a few different locations.

2. The Tribunal notes that the applicant has stated that his family are members of a Shouter’s Church. The applicant also confirmed that they use the same bible and sing the same songs as in China. The applicant has his own bible but he stated he doesn’t always understand because he claims not to be educated. He said his bible is in Chinese and in English.

3. The Tribunal asked if the applicant understands the different sections of the bible and he stated yes, “a bit”.

4. The Tribunal asked the applicant if he had a favourite part of the bible. The applicant stated all 4 Gospels. He said when Maria applied lotion to Jesus head. He then said he has no favourite part and he likes them all.

5. The Tribunal asked the applicant if he had heard of the twelve disciples of Jesus. The applicant said yes and named Peter, John, Simon, Jude who betrayed Jesus and Judas, Jacob, Matthew and Andrew.

6. The Tribunal asked the applicant how he practices his religion. The applicant said he prays, and he sits down and listens to people sing and read the bible and share what they have understood.

7. The last time the applicant attended church at [Suburb 1] Primary School, they sang songs and drank wine, ate pancakes and read the bible.

8. He said that at [Suburb 1] it normally goes for 4 hours and then there is a small gathering for young people at the end.

9. The applicant named the elders of the Church. He said that they are called [name] and [name]. He said that they do not have leaders. The applicant supplied the Tribunal with a letter from the church elders whose names correspond with what the applicant stated. The letter is dated [in] October 2015 and states that the applicant has been coming to the church since 2010.

10. The applicant described the services and stated that they do have visitors attend the church. He said that there was an overseas student from China or [Country 1] recently.

11. The Tribunal asked the applicant if he was aware of any [Country 2] guests that attended the service last week. The applicant stated that they do have babies attend and there was a new local member who played the guitar. He said they danced and played worship songs. The Tribunal asked the applicant what songs they sang. The applicant stated that he could not remember the song. He said that because it was the children’s activity he was helping by carrying chairs outside from the kitchen as they have food on a Sunday.

12. The Tribunal asked the applicant if he knows members of the congregation and also how many people generally attend. The applicant stated that over 100 people attend the church. He said he knows some but not well.

13. The applicant stated that the service is conducted in English and Chinese at [Suburb 1] Primary School. He said if it is in English they also have an interpreter.

14. The applicant then said that if there are home gatherings, they are only in Chinese. He said that in [suburb] the congregation is quite large so they provide interpreters there too.

15. The applicant confirmed that he is baptised. The Tribunal asked the applicant what that means to him. He stated that this means that the old self has gone and that the blood of Jesus washes away our sins.

16. The applicant said he was baptised when he was [age]. He said there were [number] people being baptised together. He was put into the water.

17. The Tribunal asked the applicant what religious events he has celebrated. The applicant stated that he doesn’t celebrate Christian events, he only worships on Sunday.

18. The Tribunal asked the applicant if he understood the meaning of Christmas. The applicant stated Jesus was born in a barn in Bethlehem. He then said there are many different ways to interpret Christmas, some people state Jesus was born on that day. The applicant then said that Jesus is saviour.

19. He was then asked what the significance of Easter was. The applicant said Jesus was reborn on Sunday. It was the first day of the seven days.

20. The Tribunal asked the applicant if he or the congregation have celebrations. He said that there are gatherings and they enjoy food and sing songs but they do not really celebrate religious events. He then said that every December there is a big gathering in [city] in the hills. People come from all over the world and there are approximately [number] people.

21. The Tribunal asked the applicant whether he would continue to practice his religion and attend church if he returned to China. The applicant confirmed that he will continue to go to Church. However he said that the police will disturb then and lock them up because they worry that there is an agenda against the communists.

22. The applicant stated that Changshou Li formed the Shouters which is now considered a cult in China.

23. The Tribunal put country information to the applicant in respect to the treatment of Christians in the applicant’s home region in China. It was discussed that the authorities in his home region of Fujian were considered to be one of the more liberal minded groups within China, and that unofficial church groups were permitted to practice as long as they did not cause significant issues for the authorities[1].  The applicant stated that this is nonsense from officials.

    [1] Background Paper DIBP, China: Protestants in China, August 2015

24. The Tribunal referred to other country information that there are a significant percentage of Christians in Fujian province, estimated between 10 and 15% of the overall population.[2]

    [2]

25. The applicant said that they will arrest them as soon as there are gatherings and a group of many people will be considered as rebelling.

26. The Tribunal reminded the applicant that his siblings attend the services and they have not been arrested and detained. The Tribunal asked the applicant why he would be harassed, arrested or detained. The applicant stated that his siblings don’t go to many gatherings, only sometimes. He claimed that they are studying or working. The applicant stated that if he was in China he fears he would be arrested because he would be available and attending church. The applicant stated that there is a reasonable chance he would be arrested.

27. The applicant stated that he worries that his families neighbour always wants to report them if they see anything suspicious and then the police will raid the home. The applicant acknowledged that it does not mean that you will be arrested every time or you could be harassed. The applicant said he simply does not feel the freedom to believe in his religion when he is in China as he will live in fear of what might happen.

28. The Tribunal asked what has happened to the applicant’s mother since she continues to practice Christianity. The applicant stated as soon as she arrived at the airport she was arrested and asked how she came to go to Australia. They asked her if she had said anything bad about China and cancelled her Hukou. She gave the money and she was released. Now she is [occupation] in the country to make a living and goes to Christian gatherings.

29. The applicant said that he understands that the land on which they gathered was taken by someone. He claims that his family went to report this and the police stated that because she is involved in hosting and arranging gatherings they will not assist her.

30. The land in question is owned by the applicant’s parents.  The applicant stated it was land next to his parents’ home. He was unable to confirm the size other than it is big. He then confirmed that it is not owned by him but by the members of the church so he said it ‘sort of is his land’. He said a wall was built and this was knocked down. He said neighbours and people from the government – people who do not support his religion. He said that this occurred about 12 months ago. 

31. The Tribunal put to the applicant that the church he claims to be a member of is unregistered in China so why would the congregation build a church in such a public manner if you feared being harmed. The applicant stated that as they are all Christians they want to celebrate and learn and being taught is different from being taught in a registered church. The applicant stated that they wanted to put up a sign that this is a church in their regular meeting place but they decided that they needed a bigger place for the gathering. The Tribunal asked the applicant why they would consider putting up a sign if they were afraid of being caught worshiping and feared harassment or arrest. The applicant did not respond. The Tribunal put to the applicant that his claims have rested on his fear of being caught by authorities because he is a practicing Christian and that he cannot practice freely. However, in explaining that the congregation wants to put a sign up on the dwelling promoting that it is a church suggests that the congregation are not afraid of practicing their religion in public and may suggest that the applicant’s claims are not credible. The applicant was provided with an opportunity to comment and he stated he didn’t know what to say but this is the fact. God is inside me and only he knows what is going on.

32. The Tribunal asked the applicant if he wished to elaborate on his concerns regarding a possible return to China and his legal status given he has been in Australia for a long period of time. The applicant stated that he hasn’t been back since he left. He claims that when his mother returned they cancelled her Hukou. The applicant stated that without this she cannot work. The applicant stated that his siblings are still studying so he works to send money home to support them. He said he was [age] and came to work in Australia to support his family and he feels he has freedom of religion here and not in China and knows he will definitely be arrested; it is a matter of time.

33. He stated that through those years without God he could not be like this and it is easier to find a job in Australia and he does not want to go back.

34. The applicant was asked if he would like to add anything further and he stated that he has experienced a lot and prays that God will give him what he asked for.

    FINDINGS AND REASONS

35. The Tribunal finds that the applicant is a national of China. The Tribunal has had regard to the applicant’s passport as sighted at hearing. The applicant made no claims to be a national of any other country. The Tribunal accepts that his claims should be assessed against China for the purposes of the Convention in s.36(2)(AA) of the Act for the purposes of the complementary protection obligations.

36. The applicant was a [age] child when he came to Australia. He explained he was a child when he was baptised in China and attended Local Church gatherings when he was not at boarding school, he was not a regular attendee or a practicing Christian in China. He acknowledged that on his original protection visa application of which he was the secondary applicant and his mother was the primary applicant his claims did not differ from his mother’s. The applicant’s youth at the time of the original application and his limited English would support this explanation. The applicant explained to the Tribunal that he has found Christianity in Australia since attending the Local Church. The Tribunal accepts this logical explanation and attributes this, coupled the applicants limited education to some of the inconsistencies and inaccurate claims and explanations about Christianity and elements of the Bible.

37. The Tribunal accepts that the applicant is a Christian who attends the Local Church in [City 1]. The applicant demonstrated a basic understanding of Christianity. The applicant was [age] when he left China. He only completed junior school and boarded at the school, not in his family home. His exposure to Christianity would be limited and his claimed baptism initiated by his parents. It is therefore understandable that his description of elements of Christianity demonstrated an understanding but lacked detail and at times accuracy. The Tribunal is in receipt of a letter from elders of the Local Church in [City 1] confirming the applicant’s attendance and the Tribunal contacted the [Suburb 1] Primary School to confirm such meetings occur.

38. The Tribunal finds that the applicant is a Christian and a general member of the congregation who attends Local Church gatherings. The applicant confirmed that when in China he was not targeted because of any authoritarian response to his Christianity. Furthermore, the applicant made no claims that he was a leader of the church in [City 1] or in China. The applicant made no claims about his intention to return to China and become of leader of his local church however the applicant did confirm that he would continue to practice his faith if he was to return to China. The applicant claims that religion is controlled in China, and in part he is correct, there is an official church in China, including his home region of Fujian. I accept that if he returned to China, he would attend gatherings of the Local Church. 

39. Based on the oral evidence of the applicant, the Tribunal accepts that the applicant’s parents have been involved in the Local Church and have attended gatherings. The Tribunal accepts that they are Christians. The Tribunal accepts as plausible given the province in which the family live and their claims to be Christians and the country information available to the Tribunal that the applicant’s parents attend Local Church gatherings and host them. The Tribunal also accepts that the applicant’s siblings attend church but not on a regular basis.

40. The applicant claimed that his mother was detained for six months when he was a young boy in China due to her involvement in the Local Church and that his father had to pay bribe money to have her released. He claimed there have been ongoing raids and members have been arrested but not detained prior and since his mother’s return from Australia. The Tribunal notes that in the applicant’s initial application he stated that no arrests were made but people were physically intimidated and threatened and treated with disrespect. This is contradictory and the applicant was unable to elaborate on these claims or provide examples of the arrests. The applicant provided no details about the consequences of the arrests other than to state that they were not sent to detention when asked by the Tribunal. The applicant’s knowledge of the claimed arrests lacked detail. The Tribunal does not consider it plausible that if the authorities had detained the applicant’s mother for 6 months in the past that they would simply continue raiding the gatherings and arresting members but not detaining them if his mother had such a profile and history of detention. The Tribunal forms this view after considering independent country information. It accepts that Local Church membership is officially banned in China and considered an “evil cult”.[3] However,  DFAT’s March 2015 report[4] and the information contained therein and put to the applicant, states that believers in unregistered Protestant Christian organisations, number approximate 70 to 100 million and that home churches can be found across China.  Gatherings of 30 to 40 people are generally tolerated, although DFAT are aware of cases where gathering of fewer peoples have attracted negative attention by the authorities.  Whilst DFAT assess that members of unregistered church movements could be mistreated by authorities, they do not refer to any such incidents occurring to members of the Local Church or other unregistered groups in Fujian province. This pattern of tolerance by the authorities is consistent with reports before the Tribunal and as discussed with the applicant at hearing indicating that the authorities in Fujian province have a liberal policy on Christianity, noting that while worshipping in an unregistered church is still banned it is usually tolerated by authorities in that province and that there are few reports of repression or arrests of Christians in Fujian province. For the reasons detailed above, the Tribunal does not accept that the applicant’s mother was detained for 6 months that her registration was deregistered and that the applicant’s father,  siblings and members of the church were physically intimidated and threatened, treated with disrespect and arrested. The Tribunal finds that these claims detract from the credibility of the applicant. In making my findings, I have taken into account the Tribunal's Guidelines on the Assessment of Credibility (including the effects of anxiety on applicants and the passage of time). However, these do not overcome the concerns I have about the applicant's credibility set out above.

    [3] Department of Foreign Affairs and Trade, DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

    [4] Department of Foreign Affairs and Trade, DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

41. Given the Tribunal does not accept that the applicants father or mother were targeted, the Tribunal subsequently does not accept that the applicant’s mother’s household registration was deregistered because the applicant’s father continued to preach Christianity after his mother left for Australia.

42. The applicant claims his mother returned to China and continues to practice Christianity and the authorities questioned her and gave her a hard time both at the airport on her return and it continues. The applicant stated that his mother was detained at the airport until she paid a bribe. The Tribunal accepts that the applicant’s mother came to Australia and returned to China after her failed protection visa application. Given that China has a centralised system of name matching, the Tribunal accepts that the applicant’s mother would have been interviewed on her entry back into China and it is plausible that the applicant’s mother may have been given a hard time and paid a bribe to enable her release.

43. The applicant also claimed that his mother’s hukou was taken at the airport on her return from Australia. The Tribunal notes that there are inconsistencies in these claims as the applicant had previously stated that it was deregistered when the applicant departed China for Australia.  The Tribunal has no country information before it to support the applicant’s claim that this would happen on entry into the PRC. The Tribunal does not accept that the applicant’s mother’s hukou was deregistered on her arrival into China.

44. The applicant claims he is afraid of members of his village, PRC authorities and neighbors. The applicant claimed that neighbors took land which belonged to the applicant’s family and damaged a wall that was being built for the erection of a Local Church. The applicant did not provide any detailed information or evidence as to why he was afraid of village people and neighbors other than stating that they report gatherings of church members to the police and that they have confiscated his family’s land on which they intended to build a bigger church to accommodate the growing congregation. The applicant provided limited detail about the land and was unable to convincingly explain who owned the land initially claiming it belonged to his parents, he then claims it belonged to the congregation through fundraising. He changed his claim several times. The applicant also stated that the congregation wanted to put a sign of the newly constructed building when it was complete. The neighbors report the applicant’s family and Local Church members because the applicant claims they are of a different religion. He claims the issues occurred twelve months ago yet he was unable to provide and any relevant, detailed information to support these claims. Furthermore, the applicant’s claims regarding signage were contrary to a congregation which belonged to an unregistered church and feared harassment, raids and arrests. The Tribunal put these concerns to the applicant. The applicant was unable to provide any explanation. The Tribunal has concerns regarding the credibility of the applicants claims given the inconsistencies, contradictory claims and the lack of detail. The Tribunal does not accept that the applicant’s parents land was taken by neighbours and that neighbours report the Local Church gatherings to police and they and other locals destroyed the building works or that the applicant has a genuine fear of his neighbours, PRC authorities, police or locals and that subsequently that there was any need for protection.

1. The Tribunal will now turn its mind to whether the applicant as a returning Christian who practices in an unregistered church would be targeted by authorities.  It is not suggested that the applicant has been involved in proselytizing either in China or in Australia. The applicant attends the Local Church in [City 1] but as he stated he knows a ‘few people’ and is not a leader or elder of the church. Neither is it suggested that the applicant’s family are considered the main organisers or leaders of the Local Church in their area. This includes his parents and his siblings. He stated that his siblings do not attend regularly however his parents host and attend gatherings regularly. The Tribunal again refers to DFAT’s March 2015 report[5]. There are between 70 and 100 million believers who belong to unregistered protestant Christian organisations. The State Administration for Religious Affairs (SARA) permits friends and family to hold small, informal prayer meetings without official registration. It confirms however that there are some house churches which do attract the negative attention of authorities and others that may have members in the thousands which do not. The Tribunal does not accept that the applicant will be harmed on return to China in pursuing his religious expression. The Tribunal considers that the applicant will be able to attend gatherings of the Local Church in his province of Fujian given the country information regarding that area of China and their approach to Christianity, official and unofficial.

   [5] Department of Foreign Affairs and Trade, DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

2. The Tribunal notes that the applicant came on a student visa and did not study or engage in study. He confirms he worked in order to send money to his family. He claims he did not know about protection visas until people in the Church told him. The Tribunal finds that the applicant managed to obtain a student visa from China and find employment in Australia and as such would have had the opportunity and means to obtain migration advice regarding his visa.  I find that the applicant's past conduct in Australia in applying for a student visa and using it to work and not engage in any study detracts from the general credibility of his claims.

   Complementary Protection

3. The Tribunal has considered the applicant’s claims with respect to the complementary protection provisions of the Migration Act. The Tribunal notes that Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

4. The Tribunal has provided country information about the practice of Christianity in the applicant’s home region of China. The Tribunal considers that the information about the liberal nature of the Fuqing region towards the practice of Christianity, both official and unofficial, is relevant to the consideration as to whether the applicant faces a real risk of significant harm for his belief and religious practice.

5. The Tribunal considers the country information to show that the practice of the unofficial Christian church is tolerated and accepted by the authorities as described above. The Tribunal considers that the applicant will be able to practice his religion and express his beliefs without interference from the authorities, and that the limitations as expressed will not affect the applicant in his religious practice. The Tribunal considers that the applicant will find such freedoms available to him in China.

6. Considering the country information as a whole and the applicant’s individual circumstances, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm.

   CONCLUDING PARAGRAPHS

100.   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 complementary protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

101.   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

102.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Rachel Westaway
Member