1504188 (Refugee)

[2017] AATA 1389

1504188 (Refugee) [2017] AATA 1389 (7 August 2017)

1. Corrigendum

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1504188

   COUNTRY OF REFERENCE:                   China

   MEMBER:Amanda Paxton

   DATE OF DECISION:  7 August 2017

   DATE CORRIGENDUM

   SIGNED:31 August 2017

   PLACE OF DECISION:  Melbourne

   AMENDMENT:  The following corrections are made to the decision:

   In paragraph 61, the last word in sentence five, “Malaysia” should be replaced with the word “China”

   Amanda Paxton
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1504188

   COUNTRY OF REFERENCE:                   China

   MEMBER:Amanda Paxton

   DATE:7 August 2017

   PLACE OF DECISION:  Melbourne

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

   Statement made on 07 August 2017 at 8:09am

   CATCHWORDS

   Refugee – Protection visa – China – Religion – Catholic – Land dispute – Protest against wife’s abortion – Detention – Credibility – Evidence vague and limited – New evidence at hearing

   LEGISLATION

   Migration Act 1958, ss. 5(1), 36(2)(a), (aa), (b), or (c), 36(2A) and 36(2B), 48, 65, 499

   Migration Regulations 1994, Schedule 2

   CASES

   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
   MIMA v Rajalingam (1999) 93 FCR 220
   Randhawa v MILGEA (1994) 52 FCR 437
   Selvadurai v MIEA & Anor (1994) 34 ALD 347
   Kopalapillai v MIMA (1998) 86 FCR 547
   Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

   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

2. 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).

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

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

5. The applicant was represented in relation to the review by his registered migration agent.

6. A copy of the delegate’s decision dated [in] February 2015 refusing the applicant’s current application for Protection was provided to the Tribunal together with the application for review. In addition to setting out the reasons for refusing to grant the applicant a Protection the delegate’s decision contains a comprehensive outline of the applicant’s evidence to the delegate at interview.

   Background

7. The applicant made his first protection visa application [in] April 2011 and this application was refused by a delegate [in] September 2011. This decision was affirmed by the RRT on 29 February 2012. The applicant overstayed his bridging visa and became an unlawful non-citizen [in] April 2012. The applicant made a second application for a Protection visa [in] November 2013.

   Relevant law AND DEFINITIONS

8. 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).

9. Relevantly for this review, s.48A of the Act imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a Protection visa which has been refused.  The Full Federal Court in SZGIZ v Minister for Immigration and Citizenship held that the operation of s.48A of the Act, as it stood at the time of this Protection visa application, is confined to the making of a further application for protection which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.

10. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a) of the Act that sets out Australia’s protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) because the applicant’s first Protection visa application was refused by the Department on the basis of this criterion on 14 September 2011. Instead, the Tribunal has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act. These requirements are outlined below.

    Complementary protection criterion

11. A person may 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 (the complementary protection criterion): s.36(2)(aa) of the Act.

12. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act. 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. The terms ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are further defined in s.5(1) of the Act.

13. Section 36(2)(aa) of the Act 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.[1]  Relevant in this regard, the High Court has stated that a person can have a ‘well‑founded fear’ of persecution even though the possibility of the persecution occurring is well below 50%.  Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring: however, the chance of it occurring must be more than “far-fetched” or “remote” and the evidence must indicate “a real ground for believing that the applicant … is at risk of persecution”.[2]  A fear of persecution “is not well-founded if it is merely assumed or if it is mere speculation”.[3]

    [1] MIAC v SZQRB (2013) 210 FCR 508

    [2] Chan v MIEA (1989) 169 CLR 379 at 429 per McHugh J

    [3] MIEA v Guo (1997) 191 CLR 559 at 572

14. 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

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken into account 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. The Tribunal has before it DFAT Country Report – People’s Republic of China, 3 March 2015, and the DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015.

    Credibility

15. 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.

16. The Tribunal also accepts that ‘if the applicant's account appears credible, he or she 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.

17. 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.

18. 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).

19. 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.)

20. 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

21. The issues in this case are as follows:

    ·are the applicant’s claims credible?

    ·if so, are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm?

22. As set out in the delegate’s decision provided to the Tribunal by the applicant, the applicant claimed in his Protection visa application of 2011, that he was unable to return to China due to his Catholic religion and because he protested against the authorities after his wife was forced to have an abortion under the one child policy. He also claimed that if the government knew he entered Australia illegally he could suffer severe persecution.

23. The applicant made the following claims in his current Protection visa application:[4]

    ·     The applicant left China to avoid persecution by the authorities.

    ·     The applicant has been detained by the authorities and the police in China as a result of a protest.

    ·     The applicant fears he will be detained, harmed or mistreated by the authorities and the villagers who are closely related to the authorities.

    ·     The applicant has protested to the authorities to “have his mother detained” as his [sibling] did not follow the one child policy.

    ·     When the applicant left China, the authorities and the villagers divided his farmland for themselves. If he returns to China, the applicant will try to claim access to his land and he will be harmed by the villagers who have enjoyed his divided farmland.

    [4] CLF[number], ff. 16 - 19

24. As set out in the delegate’s decision provided to the Tribunal by the applicant, at interview with the delegate, the applicant claimed he faced a real risk of significant harm because the authorities in his village have the perception that he is a trouble maker because he protested when his wife was forced to abort their second child. He further claimed that he is Catholic and Catholics are not popular in his village.

25. The applicant also claimed that he is likely to fight with local government officials due to land reforms in his village, and that his wife had told him in 2013 that local government officials had advised her that he should return to China to resolve their land issues.

26. The Tribunal explored the applicant’s claims at hearing, and he added that he may be prosecuted on return to China in relation to his illegal entry to Australia.

27. At the Tribunal hearing, the applicant provided a statement from [a Reverend Father], Parish Priest, [Church 1], Catholic Parish of [Location 1] indicating the applicant is a member of the Catholic community at [Church 1] [Location 2].[5]

    [5] AAT, f. 48

    Nationality of the applicant

28. The Tribunal finds that the applicant is a national of China. As set out in the delegate’s decision provided to the Tribunal by the applicant, the applicant arrived [in Australia] [in] March 2005 as the holder of [Country 1] passport, [number], under the identity of [name], born [date]. The applicant was immigration cleared under this identity and remained unlawfully in the community until he lodged a Protection visa application in 2011. The Department later determined the [Country 1] passport the applicant used to enter Australia was a photo substituted fraudulent document.

29. As set out in the delegate’s decision provided to the Tribunal by the applicant, at departmental interviews held [in] July 2011 and [in] February 2015, the applicant identified himself as [name] born on [date]. He presented an expired Chinese passport, [number], at both interviews which supports this identity. [In] December 2011 the Department examined passport [number] and determined it was genuine.[6]

    [6] CLF[number], ff. 131-135

30. The applicant has made no claim to be a national of any other country.  The Tribunal accepts that his claims should be assessed against China as the “receiving country” for the purposes of the complementary protection obligations in s.36(2)(aa) of the Act.  The Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country and, therefore, he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Findings and Reasons

    The applicant’s background

31. On the basis of the consistent and detailed evidence of the applicant, the Tribunal accepts the applicant was born on [date], in Fuqing City, Fujian province. On the same basis, the Tribunal accepts the applicant’s parents remain in the village in Fuqing working a small farm.

32. On the consistent and detailed evidence of the applicant, the Tribunal accepts the applicant is married and that at the time of the hearing has a [child] of [age]. The Tribunal accepts the applicant’s oral evidence that his wife used to be a [occupation] but is not working now; that she had some savings and he provides some financial support to her and is in regular contact with her.

33. The Tribunal accepts the applicant’s evidence that he has been working since arrival and is currently working in a [workplace] and living in [suburb].

    Applicant’s general credibility

34. As discussed further below, the Tribunal considered the applicant’s oral evidence at hearing was generally vague and limited. The applicant presented his evidence in a hesitating manner which lacked the spontaneity the Tribunal would expect from someone providing an account of their own experience. The applicant referred frequently to notes, and his evidence appeared to be rehearsed and he became agitated and vague when he was asked for detail and clarification of this claims. As discussed below, there were significant inconsistencies between the applicant’s evidence to the delegate at interview and to the Tribunal at hearing which he was unable to explain to the satisfaction of the Tribunal. For these reasons, the Tribunal was not satisfied in the applicant’s general credibility in key areas of his evidence.

35. In considering the applicants’ general credibility, the Tribunal considered that the applicant did not raise any claims to need protection from harm in China from the claimed occurrences in 2004 until 2011. As discussed with the applicant, and as set out in the delegate’s decision record provided to the Tribunal by the applicant, he came to Australia [in] March 2005 and remained unlawfully until he was granted a Bridging visa associated with his Protection visa application in April 2011. In his evidence to the Tribunal, the applicant stated that in the beginning he came to Australia just to hide and that he wanted to wait a few years and quietly return. He stated that he did not know about the Protection visa until years later when he talked with people at church.

36. The Tribunal has considered the applicant’s explanation for his delay in putting forward his claims to need protection but finds it unconvincing. The Tribunal notes the applicant waited more than six years before lodging a protection visa. The Tribunal would expect that had the applicant concern that he faced significant harm in China he would have enquired about his visa options at the earliest possible time. The Tribunal considers the applicant has demonstrated he had the ability and capacity to make such enquiry, noting that he was able to find and hold employment and engage in activities such as attending church. The Tribunal does not consider the applicant’s reasons for failing to make a Protection visa application at an earlier time are credible. The Tribunal considers that if the applicant had need for protection from significant harm, he would have put forward his claims to need protection at the earliest possible time. The Tribunal is not satisfied in the general credibility of the applicant for this reason.

    Protest against abortion, arrest and detention

37. The Tribunal has considered the applicant’s claim that the local village authorities who are still in power and still against him, and villagers who support the authorities, will assault him and send him to detention because he protested against his wife’s abortion in 2004.

38. The applicant gave evidence that around 2004 his wife was forced to have an abortion by local government officials because of one child policy, and he was against this because he is Catholic. He told the Tribunal that the village Family Planning office insisted that women have a pregnancy test every month, and when his wife became pregnant with a second child, they took her to the village hospital to have the abortion. He stated that at that time, he was working in a factory in a small village in Fuqing and that he did not know of the abortion until his mother-in-law notified him. He told the Tribunal that when he was informed he went to the Family Planning office in the village and argued with village officials telling them that abortion was against his belief. He claimed the officials called the police and the police sent him home, and that the police went to his house again in the evening, arrested him, detained him for two days, beat him and verbally abused him and told him not to make trouble. He stated he did not obtain any documentation about his arrest. 

1. At hearing, the Tribunal noted that the applicant did not raise his detention at interview with the delegate, but said that there was a black mark against him because he protested to the village officials against his wife’s abortion. When the Tribunal stated that it would expect the applicant to have raised this matter at his interview with the delegate if it occurred as claimed, the applicant responded vaguely saying that he had raised it in his earlier application. The Tribunal accepts the applicant’s evidence that he made this claim at an earlier time but notes that it is evident in the delegate’s decision provided to the Tribunal by the applicant that he was given extensive opportunity to present his claims to the delegate, and the Tribunal considers this a serious omission from his evidence to the delegate and the Tribunal would expect that as the applicant’s detention at that time is central to the applicant’s claims he would have discussed this incident at interview with the delegate. On this basis, the Tribunal is not satisfied the applicant’s evidence about this claimed incident is credible.

2. The Tribunal considered the applicant’s claim at hearing that about two months later in August 2004 he was again arrested. The applicant’s evidence in this regard was vague and the applicant provided limited and confused responses to the Tribunal’s request for additional detail. The applicant stated that he was arrested outside his Church. He was unclear about the reasons for this arrest but indicated that he was detained, first, in response to his earlier protest at the Family Planning office and secondly because he had expressed his thoughts about abortion to members of the congregation of the church after mass and a few of them had decided to make a petition. The applicant told the Tribunal that he believed the local authorities must have found out about the planned petition and wanted to prevent it from occurring because in the area they were very strict about cracking down on Catholic Church. He stated that he was the only one arrested. The applicant told the Tribunal that he was then detained for one month at a “labour rehabilitation” centre where he was forced to do labour in a factory, and that when he was released he was warned not to do anything bad for the government. He was not provided with any documentation on his release but he was not given any papers concerning his arrest, detention or release.

3. In consideration of this claim, the Tribunal notes that while the applicant makes reference to being detained in his written application, as set out in the delegate’s decision which was provided to the Tribunal by the applicant, the applicant did not make any claim at interview with the delegate that he was arrested because he had discussed organising a petition with church members, or that he was detained for one month in a labour rehabilitation centre.  When asked why the applicant did not mention his second detention in his interview with the delegate, the applicant stated that he mentioned it in 2011 with the Tribunal, but he did not discuss it with the delegate because she did not ask about it. The Tribunal considers that it is evident from the delegate’s decision record provided to the Tribunal by the applicant that the applicant was provided with ample opportunity to present his claims and the Tribunal did not find this explanation to be convincing. The Tribunal considers the applicant’s omission of this claim at interview is significant and that while the Tribunal acknowledges that a long period of time has passed since these events, the Tribunal would expect that had the applicant been arrested at his church for discussing organising a petition and had he been detained for one month in a labour camp, that he would have put this claim forward at his interview with the delegate. The Tribunal also discussed with the applicant that he first made protection claims in 2011, but he had not previously mentioned a four week detention associated with a petition against abortion. The applicant did not provide a reason for this. The lack of consistency in the applicant’s evidence over the course of his Protection visa process led the Tribunal to have serious doubts about the credibility of the applicant’s evidence. The Tribunal does not accept the applicant was detained for one month in a labour rehabilitation camp for protesting against his wife’s abortion and discussion organisation of a petition.

4. The Tribunal considered the applicant’s claim in his Protection visa application that he protested to the authorities to have his mother detained as she did not follow the one child policy. The Tribunal notes the applicant did not raise this claim at interview with the delegate or throughout his lengthy hearing although in he was provided with extensive opportunity to do so. At the hearing, the applicant indicated that he was unaware of this claim. On the evidence before it, the Tribunal does not accept the applicant protested to the authorities to have his mother detained because she did not follow the one child policy.

5. For all the reasons above, the Tribunal does not accept the applicant’s claim that his wife was forced to have an abortion; that the applicant protested by arguing with officials at the village Family Planning Office; that he was detained for two days for this reason, or that he was later detained for one month in a labour rehabilitation centre because of his protest and because he planned a petition with fellow church members; or that he made any other protest to the authorities in respect to abortion or the one child policy and is regarded as a trouble maker. Accordingly, the Tribunal does not accept the applicant faces significant harm from the local village authorities, or villagers, for this reason.

   Enquiries about the applicant’s whereabouts

6. As evidence that the applicant was of interest to the local authorities because he was thought to be a trouble maker and they are still looking for him, he told the Tribunal that in a local census in 2011, local officials kept asking his wife where he was, that his wife lied about his whereabouts and they did not believe her. The applicant was vague and limited in response to the Tribunal’s further enquiries about this claim. He stated that they suspect that even after more than ten years of absence, the applicant will still mount a petition because of his claimed protest in 2004 and they want to check whether he is doing anything against the government. The applicant said that every year at certain times such as at land tax collection time, the authorities ask where he is.  

7. In considering this claim, the Tribunal noted the applicant’s earlier evidence that his household registration was in this location, and based on the evidence of the applicant, formed the view that the enquiries about his whereabouts were associated with normal local administrative processes. In addition, as above, the Tribunal does not accept the applicant’s claims he was assaulted and detained for a protest relating to abortion. Accordingly the Tribunal does not accept that enquiries about his whereabouts at census time or land tax time are made because the authorities believe the applicant may be planning anti-government protest. The Tribunal does not accept that enquiries about the applicant’s whereabouts from officials at the times indicated by the applicant are indicative that the applicant has an adverse profile with the authorities.  The Tribunal does not accept the applicant has a real risk of significant harm on this basis.

   Immigration history

8. The Tribunal accepts the applicant’s evidence supported by information set out in the delegate’s decision provided to the Tribunal by the applicant, that he came to Australia in March 2005, having departed China on a Chinese passport in his own identity and that he travelled to [country], where he boarded a plane for Australia using a false [Country 1] passport. The applicant confirmed that he arrived on a [temporary] visa for three months, remaining unlawfully until he made his first application for a Protection visa in April 2011. As discussed with the applicant, the Tribunal accepts that the Department established later that his passport was fraudulent.

9. The applicant told the Tribunal that he obtained his Chinese passport a few years before his departure and that he experienced no difficulties departing China on his own passport. He stated that on departure he was “asked some questions but nothing special.” The applicant explained the authorities’ lack of interest in him saying that he had a visa to [country] and the government was mostly concentrating on drug related issues.

10. As put to the applicant, DFAT in their report of 3 March 2015 advised:

    A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive.[7]

    [7] DFAT country Report, People’s Republic of China, 3 March 2015, p. 20

11. On the basis of this advice, the Tribunal accepts the Chinese authorities have sophisticated capability to monitor people departing China. The Tribunal has taken into account the applicant’s response to the above country information that he was not questioned about his claimed profile as a person involved in anti-government activities and a person who had been detained for a considerable period on account of these activities because he exited China from Beijing far from Fuqing. However, on the country information before it, the Tribunal considers the applicant would have been detected on departure and that he would have experienced difficulties in departing had he been of adverse interest to the authorities for anti-government activity or any other reason. On this basis, the Tribunal does not accept the applicant was of adverse interest to the authorities for any reason.

12. The Tribunal has also considered the applicant’s claim that he faces significant harm because he may be prosecuted by the Chinese government who may know that he entered Australia illegally under a false identity. The Tribunal notes that the applicant departed China legally on his own passport and having undertaken normal exit procedures and on the basis of the country information above, the Tribunal finds that on his return to China, the Chinese authorities will have a record of this. The Tribunal finds the applicant has not committed any offence against Chinese immigration law and on this basis he will not be at risk of prosecution. On the evidence before it, the Tribunal finds the applicant does not have a real risk of significant harm on return to China because he entered Australia under a false identity.

    Membership of Catholic Church

13. The Tribunal has considered whether the applicant has a real risk of significant harm because he is a member of the Catholic Church.

14. The applicant stated that he started attending church because wife was Catholic, and to marry in the church he had to become a church member. He studied for about a month and was baptised and has attended church since then. He and his wife attended church together and they were the first couple to get married in the church so they were quite well known as members of this Church and the applicant provided to the Tribunal a photograph of what appears to be his wedding in a church in 1997. Taking into account the applicant’s detailed description of his entry into the church and noting the statement from [the Reverend Father],Parish Priest, [Church 1], Catholic Parish of [Location 1] indicating the applicant is a member of the Catholic community at [Church 1] [Location 2], the Tribunal accepts the applicant is a member of the Catholic Church.

15. The applicant did not claim to be at risk of significant harm as a member of the Catholic Church until the closing moments of the hearing after the Tribunal sought to elicit any further claims. The Tribunal drew the conclusion that this issue was not of great significant to the applicant but the Tribunal has considered this claim as the applicant then stated that he will be detained and assaulted for this reason.

16. When the Tribunal made further enquiry about this claim, the applicant stated that in 2002 the government was interested in his church because it was an underground church and gathered in someone’s home. He said that on one occasion, officials arrested some people, but he did not know who they were. He was not arrested but officials told them to go to a registered church. The applicant’s evidence about this incident was vague and limited and, although the applicant demonstrated understanding of the religious differences between the Patriotic and underground Catholics when he commented about the appointment of bishops by the government authorities, the Tribunal did not accept that he was not involved in this incident, or, taking into account the finding below, that his church was an underground church.

17. The applicant told the Tribunal that his wife attends the Patriotic Church because there is no longer an unregistered church in his area, and the Tribunal enquired whether, as a member of the Catholic church, he would go to a Patriotic Catholic. He stated that he had not thought about it but indicated that the Patriotic Catholic Church “is still a church” and he would therefore attend although he indicated that it saddens him that the church is not independent. The Tribunal also accepts that the applicant’s wife attends the Catholic Patriotic Church, and that this is the only Catholic Church in the area. The Tribunal accepts that the applicant will also attend the Catholic Patriotic church for this reason. He told the Tribunal that his wife and [child] have not experienced any problems practising their faith.

18. In consideration of the applicant’s claim to face significant harm because he is member of the Catholic Church, the Tribunal has taken into account advice from DFAT from March 2015, put to the applicant that: 

    2.6 Article 36 of China’s Constitution states that citizens of the People's Republic of China enjoy freedom of religious belief and that no state organ, public organisation or individual may compel citizens to believe in, or not to believe in, any religion. Discrimination on religious grounds is prohibited in theory.

    2.7 The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureaux, have significant discretion in implementing the regulations.

    2.8 The Chinese government limits religious practice to five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) and members are required to register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and are required to adhere to the principles of independence and self-governance from foreign associations. Registered religious organisations are permitted to possess property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools.

    2.12  It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics state there are approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Officially, there are approximately 5,500 religious groups, along with nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity. The Chinese government states there are 360,000 registered clergy.

    2.13 In practice, the number of religious believers is estimated to be much higher and rising, particularly among believers in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. DFAT assesses as credible estimates that there are approximately 12 million Catholics (approximately seven million of who belong to “underground” churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association). Around 50,000 new Catholics are baptised in state-recognised churches every year.

    3.1 SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of a sizeable unregistered Christian community in both rural and urban China. Known as “house” or “family” churches (for Protestant organisations), and “underground” churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship.

    3.2 House churches can be found across China and vary in size and religious practice. Gatherings of 30 to 40 people are generally tolerated, although DFAT is aware of cases where gatherings of fewer people have attracted negative attention by authorities. On the other hand, there are also some house church congregations that number in the thousands and are able to operate with little to no interference from local authorities. A number of house churches are known to restrict their own size and activities so as to avoid official attention.

    3.3 Members of both unregistered and registered religious organisations can face adverse attention by authorities when: they are perceived to have links with foreign influences (either through personnel or funding); are critical of the government or advocate for issues considered political or sensitive by the government; belong to large and potentially influential networks; are engaged in other criminal activities; or are operating in provinces or local settings where corruption is prevalent, and the potential for extortion and running afoul of local authorities’ favour, is potentially higher. Occasionally, anti-crime campaigns with quotas for a certain number of arrests can also prompt local officials to crack down on Christian activities that had previously been tolerated.

    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. [8]

    [8] DFAT Thematic Report, Unregistered religious organisations and other groups in the People’s    Republic of China, 3 March 2015

1. The Tribunal has also takes into account country information, put to the applicant, that across a range of sources, such as the US Department of State, the United States Commission on International Religious Freedom, Amnesty International, Human Rights Watch, that Fujian is not highlighted as a particular areas of concern in China in relation to religious freedom in general. The Tribunal noted that China Aid, had no record of persecution of Catholics in Fujian in 2015, although the report indicated that in some areas, repression of Catholic Church has escalated.[9]

   [9] ChinaAid,  2014 Annual Report, Religious and Human Rights Persecution in China

2. In response to the information above, the applicant stated that many documents say that Fujian is not affected by religious crackdown but it is. He stated that underground Churches were abolished in 2009 and that this will spread to Fujian soon, and he commented about an incident where crosses on churches were burnt in Fujian. The Tribunal has taken into account the applicant’s response but gives weight to the country information above, noting the independence of these sources.

3. The Tribunal accepts the advice of DFAT above and finds in particular that Catholic activity has been growing in China and that the Chinese Patriotic Association has managed Catholic affairs in China, however there are Catholics who refuse to acknowledge the authority of the CPA who have been described as underground Catholics. The Tribunal accepts the advice that Catholics in China can experience officially-sanctioned harassment and discrimination when their activities are viewed by authorities to be politically sensitive, but that incidence of societal discrimination and violence against Catholics in China is generally low.

4. The Tribunal considers that in the applicant’s accepted circumstances, where he will attend the Patriotic Catholic church as a member of the congregation, and where he does not have a role in the Church such that his activities would be viewed to be politically sensitive, the Tribunal finds the possibility the applicant will be subject to detention and assaulted, or experience societal discrimination and violence because of his membership of the Catholic Church is remote. The Tribunal does not accept there is a real risk the applicant faces significant harm on this basis.

   Land ownership

5. The Tribunal has considered the applicant’s claim that he will be assaulted by police and town government and village officials because they are against him. The applicant was vague in his response to Tribunal’s further enquires but stated that he is on their black list and they will try to bully him. He indicated that one of the reasons for this is that in 2013 government officials took some of his land the village, and gathered it into a bigger parcel of land from which they obtain rent. The applicant was contradictory and vague in his further evidence, saying that his wife did not obtain compensation for the land, and that his wife did obtained compensation, but it was less that the land was worth, that he has no documentation about the transaction, that his wife has a receipt for the money. The applicant’s shifting and contradictory evidence led the Tribunal to the view that the applicant was not a witness of truth in this matter. On this basis, the Tribunal does not accept the applicant has a land dispute with the local government. The Tribunal does not accept the applicant will try to claim his land and that he will be harmed by the villagers who have enjoyed his divided land. The Tribunal does not accept the applicant has a real risk of significant harm for this reason.

   Human Rights

6. The Tribunal has considered the applicant’s claim to face significant harm in China because “there is no freedom or human rights”. The applicant could not elaborate on this claim but told the Tribunal that “Money very important, and love, but if freedom or human rights you can throw away both” The Tribunal does not accept that the issue of human rights in China is a concern to the applicant. Given the opportunity to discuss it and explain how it is relevant to his situation, the applicant provided no further detail as to this aspect of his claims. The Tribunal considers that this is because the human rights situation in China has had no effect on the applicant in the past, given he has had had property and worked without restriction, and as found above has practised his Catholic religion, and has not claimed to have had any political or social interests curtailed by the authorities in Malaysia. The applicant has not detailed what concerns he might have in the future for this reason on return to China. The Tribunal considers that the applicant does not have any fear of harm for this reason. The Tribunal finds that the applicant does not have a real risk of significant harm for this reason.

7. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not substantial grounds for believing that there is a real risk the applicant will suffer significant harm upon being removed from Australia to China.

   CONCLUSION

8. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. 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) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   decision

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

    Amanda Paxton
    Member