1505656 (Refugee)

[2017] AATA 2001

1505656 (Refugee) [2017] AATA 2001 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505656

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:18 October 2017

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 18 OCTOBER 2017 AT 5:23PM

CATCHWORDS

Refugee – Protection visa – China – Religion – Shouters – Local church practitioner – Social group – Contravened family planning regulations – Not a witness of truth – Not a genuine church member

LEGISLATION

Migration Act 1958, ss 36, 65, 48A, 424A, 499

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicants who claim to be citizens of China, applied for the visas [in] October 2013 and the delegate refused to grant the visas [in] April 2015.

3.    In their application, the applicant’s relied upon the first named applicant’s claims only. The first named applicant (herein called the applicant) stated the following:

I was born [in date], in YanJi City Jilin Province, China.

I am a citizen of China and do not have a right to citizenship or a right to reside in any other country.

I came to Australia on with a student Visa [subclass] [in] March 2008.

I met my current de-facto partner [in] July 2008 and started to cohabit from December, 2008. My [son] [was] born [in date].

Not long after my partner gave birth to [our son], she took out an application for a protection visa and included me and [our son] in the application as her dependents.

My [partner] claimed she was a member of shouters, a Christian sect which has been branded as an evil cult and hence outlawed by the Chinese authority in 1982. Based on this fact, she believes she would be facing severe persecution due to her faith and would inevitably incriminate me and [our son] if returned to Fujian China.

Unfortunately the delegate of the Minister did not accept her claims and subsequently refused to grant a protection visa. We submitted an appeal to the Refugee Review Tribunal, seeking for merits review but turned out to be unsuccessfully either.

We did not file an appeal seeking for judicial review to Federal Court of Australia and subsequently, we became unlawful and I was located by the compliance officer in July 2013 and then transferred to [a detention facility] where I currently remain while my partner and children are still in the community on bridging visa E.

Claims under the complimentary protection provisions

I have learnt that the Complementary protection provisions came into effect from 24 March 2012, which means all my claims, rather solely related to refugee status, would be assessed against CPP to determine whether Australia has non-return obligations to me.

I believe there is a real risk that my family including my wife and children with suffer from significant harm as defined in the s.36(2A) of the Migration Act 1958 (the Act) immediately after forcible return to China. As such, I am convinced that we would meet the criterion for a protection visa uncle when she grounds, which are set out in the s.36 (2) (aa) of the Act and I have the following facts and substantial evidence to support my claims.

To start with, my prospective wife [is] originally from Fuqing city of Fujian province where as I am from Yanji City in Jilin province, China. The direct distance between these places is approximately 2000 and 300 km, as such, she has to relocate her residential registration certificate from Fuqing to Yanji so that we would continue to live together as a family (it is the traditional norm for women in China to move into their husband’s places immediately after the marriage).

However, prior to the relocation of her Hukou, we must first register our children in her residential status booklet. As they were born in violation of the family planning regulation, the full amount of social compensation fee has to be met.

The article 39 of Fujian finally planning regulation prescribes:

Anyone who violates this regulation by one of the acts listed below shall be ordered to pay the corresponding number of times of the average annual disposable income of the urban or rural residents of the country in the previous year and the child is born when the child is born in violation of this regulation is social compensation fee by family planning administrative department or by township peoples governments.

(1)  A social compensation of zero point six to one time shall be imposed on those who give birth to a child ahead of the schedule.

(2)  A social compensation of two to three times shall be imposed on those who give birth to the first additional child… four to six times to those give birth the second additional child…

(3)  A social compensation of four to six times shall be imposed on those who give birth to a child born out of an extramarital affair. A much more heavy social compensation fee shall be imposed who give birth to the second child born out of an extramarital affair.

As both my partner and I are classified as urban residents, the annual disposable income for an urban resident in 2012 is defined by Fuqing family planning committee as 26380RMB.

Therefore the total amount of the social compensation fee is supposed to be calculated as follows:

2 (both husband and wife) x 2 (for [my] first son, was born out of wedlock) x 3 ([name] regarded as the first additional child) x 26380 = 316 560 RMB which is equivalent of approximately 57 556 Australian dollars.

It would be impossible for my partner and I to meet such exorbitant fee within a short period of time. For I do not have any saving, the money I earned from doing such odd jobs was barely enough to cover the general living costs of my nuclear family. Even though them my parents and my parents of my partner may be able to provide us with some financial support, to make the full payment of the social maintenance charges well beyond the reach of my family.

But, failing to pay the penalty would result us in being unable to place our children in the household registration booklet and in turn, they would inevitably fall into the category of black children who will not have access to healthcare, government subsidised education program and childcare services, adding to that, they would not be accepted by the mainstream society and be alienated, rejected and marginalised, which will undoubtedly bring about great adverse implication on their early childhood development both mentally and physically. It is not hard to imagine the general aspects of their well-being would be greatly compromised.

More importantly, as far as the operation of Chinese residents laws are concerned, my would-be wife [would] experience great difficulty with securing permission to relocate her hukou to my official residential place unless the monetary fine is paid in full and before that happens she has no choice but to reside in Fuqing with the children whilst I am required by the residence law to stay in Yanji, which would in essence separate me from my family and divorce me from having reasonable and substantial contacts with my children and partner.

Admittedly, the Hukou regulations are non-selective and should be deemed as the general application of laws, but separating a family, depriving young children of having access to their biological father would be inconsistent with Article 7 of the ICCPR (International Covenant on Civil and Political rights).

What fears my family most is the forcible sterilisation and abortion, we learnt in recent years, many pregnant women in Fujian were forced receive abortion procedure, which inflicted significant harm upon them both physically and mentally.

For instance in April 2012, a woman named Pan Chun Yan from XianYou County, Fujian Province, was forced to abort by injection when she was in seven odd month pregnancy. I present a journal article, published on 7/9/2012, which reported the same incident. (Please refer to the attachment 1 for details of this article) having said that:

In reference to the country information with regard to China’s family-planning laws, enforcement and exceptions, reports of forced abortions or sterilisation of men and women particularly in the provinces of Guangdong in Fujian bracket 2007/May 2010), released by immigration refugee board of Canada on 9/7/2010 in February 2009, the government of Fujian province Anxi County ordered officials to seek court authoritizations to carry out coercive measures when family-planning violators fail to pay fines.

The report also states that in 2009 officials in some areas of Fujian province employed absorption as an official policy instrument. According to the report, officials in Fujian’s Xian You County forced a seven-month pregnant unmarried woman to undergo an abortion and detained the mother who was eight months pregnant with her second child to pressure her to have an abortion. (Please refer to attachment 2 for details)

Claims under s.36(2)(a) of the Act

In spite of the fact that the delegate of the minister, in our previous protection visa application, did not accept that my partner is a member of the local church (shouters), but still remains committed to her religious practice and as a result, I was inspired by her and have become a member of Yellers.

We believe witness Lee (or Changshou Li) is the head of our Recovery Church and we believe we can save people by making them say O Lord three times as Roman 10:13 states, “For, everyone who calls on the name of the Lord will be saved.”

That’s why we, as followers of Witness Lee, are of the view that to reach the unbelievers, no preaching is necessary. If we help them say “O Lord three times, they will be saved. Just like if they open the window, the air will get in. All they have to do is to open their mouths and say “0 Lord, O Lord” even if they have no intention of believing, still they will be caught.

Barring that, in our perspective, if a person has become a Christian but his hands or feet sin all the time, he will suffer the punishment of the eternal fire in the kingdom of heavens. He will not suffer this punishment eternally, but will suffer it only in the age of the kingdom.

Why fear of persecution

First of all, in 1982 the Shouters were outlawed and denounced as an evil cult by the Chinese authority. The Public Security Bureau declared it illegal, and labelled it counter revolutionary and simultaneously, the Religious Affairs Bureau notified all the registered churches across China to resist the shouters.

From that time onward, members of the local church have been wretched-hunted and persecuted by the Chinese authority, which was why my partner had to flee from China to Australia in a bid to avoid oppression.

We fear that my children would be facing significant harm because of my religious practice and involvement in the local church. In recent years, the local authorities in many areas across China have intensified their effort to uproot unofficial churches, especially local churches. Not only do they target adult ungrounded church members, they also inflict physical and psychological harm upon the children of Christians.

There have been countless instances over the past few years where children of the local church members were being persecuted in the forms of having restricted access to schooling, been discriminated against by their peers at school or even evicted from schools with some children being tentatively arrested for interrogation.

Owing to the cumulative effect of the above facts, there are substantial grounds that my family including myself, my partner and two of my children would be subject to persecution and significant harm.

Therefore, I believe Australia is owed protection obligations to my family in terms of both refugee convention and complimentary protection provisions.

4.    The hearing before the Tribunal was held on 21 March 2017 and adjourned until 27 March 2017 when the applicant appeared to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The second and third named applicants were not present.

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

6.    The applicant confirmed that his English statement in October 2013 had been translated back to him in Mandarin and was correct.

7.    The applicant stated he wanted to withdraw his family planning claims since China was now open to a second child. He also wanted to withdraw his forced sterilisation (of either he or the second named applicant herein called his wife) claims and stated his fear was based on religion.

8.    The applicant stated that he had been together with his wife since the end of 2008 (and not December 2010 as was recorded in his form 80. He stated they remained unmarried because of their special relationship. He stated they did not have legal status in Australia, did not have much time to think about getting married and in addition they lived a noble life and would be together forever.

9.    The applicant stated he could not return to China because he had been a member of the Shouters since the end of 2010. When asked why he thought he had become a member at that point, he stated before that he and his wife used to fight but after she went to church he noticed her temperament became nicer. He had asked why and she had told him the Bible told her that the family head was the husband and that the wife should be compliant. He stated he therefore went with her and also became Christian. The applicant confirmed that her temperament changed after he met her and after she had attended church. The Tribunal put to him that his wife had said that she was a member of the Shouters before she came to Australia. He stated he did not know because after he got to know her he found out she was a Shouter. The Tribunal put to him that if she was a Local Church member before they met then it was difficult to understand that her temperament changed after they met and as a result of her attending church. He stated he didn’t know what she was like in China and only knew her in Australia and did not know about her past.

1. The Tribunal put to him that based on the history of the case, it had concerns about whether he or his wife were genuine members of the Local Church. The Tribunal put to him that they had never married and asked how that was consistent with Christianity and the teachings of the Local Church. He stated they lived a noble life and loved each other, had two children and would never separate. He stated there was nowhere in the Bible that said that without a piece of paper they could not be together. The Tribunal asked what the Local Church’s teachings on marriage were. He stated he and his wife together lived a noble life and could not be separated.

2. The Tribunal also put to the applicant that his wife had previously said she was a member of the Local Church however the then Tribunal noted in its decision that her written statement said that her involvement in the family church was discovered by a schoolteacher and she was reported to the village government and taken by the police for investigation however at hearing she had said someone reported her for attending church and that she was arrested and later released on bail and she had stated that it was incorrect that school officials had reported her. The applicant stated he did not know.

3. The Tribunal also noted that the then Tribunal put to his wife that she said the police turned up at a gathering on a Sunday around the time of the Chinese New Year 2007 however the Tribunal noted that the Chinese New Year was on a Wednesday and Thursday.  The Tribunal also noted that the Chinese New Year in 2007 was on 18 February 2007 and that she had also said that a week after she was arrested her parents decided it was best she travel overseas however her visa application to come to Australia was dated [in] January 2007 and included documentation dated before that date which may indicate she was intending on coming to Australia before she was allegedly detained. The applicant stated he did not know his wife at that time and had not asked about her past.

4. The Tribunal also put to the applicant that his wife had also stated she started attending church in November 2007 and that prior to that she had attended other churches on two or three occasions however certificates presented to the then Tribunal stated that they began meeting regularly with the church since March 2011 which was roughly the same time the applicant and his wife lodged a protection visa application. The Tribunal also put to him that at the Department of Immigration interview [in] October 2014 it was orally recorded that the applicant told them he became a member of the local church not long after his first child was born [but] then told them it was around [date] but he had just indicated to the Tribunal it was at the end of 2010. The Tribunal put to him it may find that his answers in relation to when he began attending the local church continued to change. He stated he did not know about his wife’s application and that he started to believe at the end of 2010.

5. The applicant stated he went to church twice a week. The Tribunal put to him that he told the Department at interview [in] October 2014 that he followed his wife to church every Sunday and sometimes Thursday and he agreed. The Tribunal put to him that a letter from [the witnesses] stated that since the end of 2010 the applicant started attending at least twice a month between the end of 2010 and March 2013 which did not appear to be consistent with what he was now saying which was that he attended twice every week. He stated that was between 2010 and 2013.

6. The Tribunal put to the applicant that he told the Refugee Review Tribunal that he had not been baptised but his wife said that he was baptised on the same day she was. He stated he did not remember.

7. The Tribunal put to him that he also told the Department at interview [in] October 2014 that he was baptised [in] March 2011 and that he was baptised before he lodged the application, however the Tribunal put to him he lodged a protection visa application [in] March 2011 which was before [March] 2011.

8. The Tribunal also put to the applicant that his wife arrived in Australia in May 2007 and did not apply for a protection visa until March 2011 which may not be consistent with her claim to have fled China because she was fearful because she was a member of the local church either in China or in Australia. The Tribunal also put to him that may lead the Tribunal to conclude that she was not a Local Church member and that she could not have influenced him to become a member of the Local Church.  He stated he did not know about his wife.

9. The Tribunal put to the applicant that if it was satisfied that he had gone to the local church it may find he had only done so for the purposes of his protection visa application and that if it found that, it would still need to think about whether he would suffer any harm if he went back to China but it may not be satisfied that anyone in China would know that he had attended church in Australia. He stated there was a big Chinese community where he lived and they watched closely.

10. The Tribunal then spoke to the adviser who stated he wanted the Chinese version of the wife’s protection visa and that if the Tribunal did not have the Chinese version, then how did the Tribunal know what the wife had said? He also stated that the Tribunal had not assessed the applicant’s faith and had not asked about his conversion to Christianity and should do so. He also stated that the Tribunal had asked questions in relation to his wife’s application which was not fair.

1. The Tribunal put to the adviser that the applicant had stated that he became a member of the Local Church because his wife was a member and accordingly, it was relevant to assess whether his wife was a member. The adviser stated the applicant had said his wife had led him to the church and he had converted later, not that his wife had converted him. The Tribunal put to him that even if it accepted that, it still considered it relevant to assess whether it accepted that his wife was a genuine local church practitioner. The adviser said that religious practice was a personal matter and that even if his wife was not genuine that did not mean that the applicant was not. He stated the applicant had been attending church for many years and had learnt the Bible and all of the evidence including the supporting letters suggested that.

2. The Tribunal indicated it would consider all of the information before it including the matter’s history.

3. The adviser then stated that the Tribunal was not assessing the applicant’s conviction to Christianity at the current point in time. The Tribunal indicated it had not made up its mind however it would be assessing everything before it and indicated it had put its concerns to the applicant throughout the course of the hearing.

4. The applicant stated that even if the Tribunal was not satisfied that his wife was a member of the shouters that did not mean he was not.

5. Following the hearing, the Tribunal sent the following pursuant to 424A:

Whether [the applicant] and [the applicant’s partner] are genuine Local Church practitioners

Whether [the applicant’s partner] was involved with the Local Church in CHINA

In its decision dated 8 September 2011, the Refugee Review Tribunal (RRT) noted that in [the applicant’s partner] application for a protection visa she said that her involvement in a family church in China was discovered by a school teacher in early 2007 and that she was reported to the village government.

She also said that she was reported for attending the family church in secret and that she and her sisters were taken in by the police for investigation.

However, the RRT recorded in writing that she told it at hearing on 2 August 2011 that someone reported her for attending her church; she was arrested, but a relative arranged to have her released on bail. The Tribunal also stated that when it was put to her at hearing that her written claims said that officials at her school had found out about her involvement in the church and that it was as a result of that discovery that police had questioned members of the church, she stated that was not correct and then retreated from her earlier evidence and said that a teacher at her school had prior knowledge of her involvement in the church, but she had not thought the teacher would tell anyone.
This is relevant because the Tribunal may find [the applicant’s partner’s] answers in relation to who reported her to authorities and whether she was taken in for investigation or whether she was arrested and released on bail has changed. If the Tribunal finds that [the applicant’s partner’s] answers have changed, then it may not accept that she has been telling the truth about her conversion to Christianity. If the Tribunal finds that it does not accept she has been telling the truth about her conversion to Christianity, then it may not accept that [the applicant], too, has been converted to Christianity and, subject to your comments, would affirm the decision under review and find that [the applicant] and [the applicant’s son] do not meet protection and complementary protection criterion and that [the applicant’s partner] does not meet complementary protection criterion.

The RRT also recorded in writing that, at hearing on 2 August 2011, [the applicant’s partner] also stated that the police had turned up at a Sunday gathering around the time of the Chinese New Year, and that it was either New Year’s Day or the day before New Year’s day, or either [date or date in] January 2007 (the Tribunal noted these that two days were a Wednesday and Thursday and that Chinese New Year in 2007 was on 18 February 2007). She also said a week or two after she was arrested, her parents decided it would be best for her to travel abroad to undertake further studies.

However, even though her student visa application to come to Australia was dated [in] January 2007, documentation on her student file including a ‘supplementary form-student visa schools sector IELTS waiver’ and a ‘student visa applicant under 18 education provider’s confirmation of appropriate accommodation/welfare’ is dated [in] January 2007 and may indicate that she was intending to come to Australia even earlier. That is, this documentation may indicate that she was intending to come to Australia before she claimed her parents decided it would be best for her to travel overseas because the police had turned up at their Sunday gathering.

In addition, even though [the applicant’s partner] arrived in Australia [in] May 2007, she did not apply for a Protection visa until [March] 2011.

This is relevant because the Tribunal may find that it does not accept that [the applicant’s partner] is a witness of truth or that she was a member of the Local Church in China or that she fled to Australia as a result. This is relevant because the Tribunal may not accept [the applicant’s] claim at hearing that, because she was a member of the Local Church, [the applicant] noticed that her temper had become really nice and she told [the applicant] it was because of the Bible, and that [the applicant] went with her and became a Christian. If the Tribunal does not accept that she was a member of the Local Church and that [the applicant] went with her and became a Christian, then, subject to your comments, the Tribunal would affirm the decision under review and find that [the applicant] and [the applicant’s son] do not meet protection and complementary protection criterion and that [the applicant’s partner] does not meet complementary protection criterion.

When [the applicant] and [the applicant’s partner] began attending the Local Church in Australia
The RRT recorded in writing that, at hearing on 2 August 2011, [the applicant’s partner] stated that she started attending church in November 2007 and that, prior to then, she had attended other churches on two or three occasions. However, certificates presented to the RRT state that she and [the applicant] began meeting regularly with the church since March 2011, which was roughly at the same time that [the applicant] lodged an application for a Protection visa.
The Department of Immigration’s oral recording of its interview with [the applicant] [in] October 2014 indicates that [the applicant] told them that [the applicant] became a Shouter not long after [the applicant’s] first child was born [and] that [the applicant] attended Church gatherings in around April 2010.

This is relevant because it may be inconsistent with what [the applicant] stated at hearing on 27 March 2017, which was that [the applicant] had been a member of the Shouters since the end of 2010. It may also be inconsistent with a supporting letter from [the witnesses] stating that [the applicant] has been a member of the Local Church since the end of 2010, and started attending at least twice a month between the end of 2010 and March 2013. This is relevant because the Tribunal may find it does not accept that [the applicant] is a witness of truth, or that [the applicant] is a member of the Local Church. If the Tribunal does not accept that [the applicant] is a witness of truth or that [the applicant] is a member of the Local Church, then, subject to your response, the Tribunal would affirm the decision under review and find that [the applicant] and [the applicant’s son] do not meet protection and complementary protection criterion and [the applicant’s partner] does not meet complementary protection criterion.

Whether [the applicant] has been Baptised
In its decision dated 8 September 2011, the RRT recorded in writing that, at hearing on 2 August 2011, [the applicant] said [the applicant] had not been baptised, but [the applicant’s partner] said [the applicant] was baptised on the same day she was.

The Department of Immigration’s oral recording of its interview with [the applicant] [in] October 2014 indicates that [the applicant] told the Department that [the applicant] was baptised [in] March 2011. [The applicant] also told the Department that [the applicant] was baptised the same day as [the applicant’s partner], that she was baptised before she made the application for the visa that included [the applicant] as a secondary applicant. However [the applicant’s partner] lodged the application [in] March 2011, which means that if she and [the applicant] were baptised [in] March 2011, [the applicant] was baptised after that application.

This is relevant because the Tribunal may find it does not accept that [the applicant] is a witness of truth or that [the applicant] has been baptised.  If the Tribunal does not accept that [the applicant] is a witness of truth or that [the applicant] has been baptised, then subject to your response, the Tribunal would affirm the decision under review and find that [the applicant] and [the applicant’s son] do not meet protection and complementary protection criterion and [the applicant’s partner] does not meet complementary protection criterion.

1. The applicant responded as follows:

Concern 1 and 2

I met my girlfriend who is currently living with me in May 2008 in Australia. She talked to me about being persecuted by the local government for her participation in the local church activities. My girlfriend already made the explanation at the hearing on 2 August 2011 (see paragraph 57 and 58 of the decision of 8 September 2011). She made it very clear to the member of the Tribunal then that she was firstly found out of participating in the local church activity by the police and warned for that. The school was also informed. There was a teacher knowing her involvement in church activities. But she does not think that teacher would tell anyone about it.

About the exact date of my girlfriend being found out by the police and when her parents submitted application for studying abroad for her, my girlfriend already explained at the hearing of 2 August 2011. Please see paragraph 123-129 of the decision of 8 September 2011. As to the testimony she made before, I have confirmed my girlfriend that everything was true and she had nothing more to add or provide.

Though the Tribunal did not accept the explanation about the relationship with my girlfriend and made the decision against her review, we have lived together for nearly ten years and brought up two children together, not only as her spouse but also as her brother in our belief. I believe what she said is true.

Concern 3: about the time when you and your girlfriend started to go to the church

Just as what my girlfriend said at the hearing on 2 August 2011, she used to go to the Chinese churches in [suburbs] before going to the local church in [Suburb 1]. She does not like these Churches very much, as they are different from where she used to go in China. Later she started to go to the Local Church in [Suburb 1] introduced by a classmate of a school she went in China. It should be November 2009 (the record of the Tribunal is November 2010. I am not sure whether my friend was so nervous that she made an error or its interpreter’s mistake. But it is November 2009 when she started to go to the local church in [Suburb 1] for sure) A few months after she went to the church, she took a rest at home from March to November 2010 for taking care of the [baby]. She still tried to attend the meetings on Sundays but was not able to make it regularly.

Influenced by my girlfriend, I started to go to the local church in [Suburb 1] since April 2010. However, as the baby was just born and both baby and my girlfriend needed to be taken care of, I was not able to participate in this church activities on schedule. So the elders and the church met us irregularly. We started to go the church on a regular base after we were baptised i.e. after March 2011. So that is why the elders in our church stated in the support letters in my girlfriend and I started to participate in the church activities regularly from March 2011. It does not contradict the testimony made by my [witnesses], as they were not in [City 1] due to various reasons from March to the end of 2010 and not able to participate in the church activities in [Suburb 1].

Concern 4: about when you were baptised

About this point my girlfriend made it very clear at the hearing on 2 August 2011. As I was scared and nervous at that time, I was afraid that if I said I was baptised, I would be questioned further by the member of the Tribunal about the doctrines of the shout and the content of the Bible. As I was very tired after work on my spiritual life did not reach a certain height, I said thoughtlessly that I was not baptised please see paragraph 92 of the decision record of 8 September 2011.

Besides, it’s also stated in paragraph 116 in the record of the decision made by the Tribunal on 8 September 2011, but the member of the Tribunal decided not to consider it. (It therefore gives little weight to his evidence, either in favour or in opposition to the evidence given by the applicant.)

As to the date when my girlfriend submitted the application for protection visa for the first time, my girlfriend might misremember it at that time. I was not the primary applicant then. My girlfriend asked a friend to help her submit the visa application. I got from did not recall the exact date of submitting application. But it cannot be taken is that my current application is not true. This should not be a reason to deny my identity as a member of the local church.

Furthermore I appeal the Tribunal to deliberately consider the following facts:

• Since I went to the church I have learned the Bible for a long period and my spiritual life was improved gradually. Then I became a Christian. My wife is the person who introduced the church to me, but not the one who converted me to believe in this belief.

• If the purpose that I went to the church was only for them getting the status of refugee it should have no reasons for me to continue to participate in the church activities will learn the Bible after the Tribunal recognise the decision made by the Department of immigration [in] September 2011 because it’s unpredictable about the second chance to claim for refugee status at that time.

• The improvement in belief in spiritual life is personal which is something between an individual and God. However during this hearing, the Tribunal did not raise any questions about my statement and my spiritual life improvement. The concerns wre all about my girlfriend. Especially for the persecution she suffered in China. I did not experience it personally but I believe what she said is true. However the Tribunal should not make an unfavourable decision against my application for review by considering the concerns raised during my girlfriend previous application. I think it’s unfair for me as when we claimed for the refugee protection the second time in October 2013 in accordance with the supplementary protection clauses I was the primary applicant, not my girlfriend.

1. The Tribunal held a second hearing on 16 October 2017 when the applicant appeared to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The second and third named applicants were not present.

2. The applicant was represented in relation to the review by their registered migration agent.

3. The Tribunal explained it was looking at the Refugee Convention and complementary protection in relation to the applicant and the third named applicant and complementary protection in relation to all applicants.

4. The applicant stated he moved in with his wife on July 2008. He also stated that [name] He had left the Local Church because she thought it was heretical but the other two persons who had provided statements could provide evidence for him.    He also provided a marriage certificate stating he and his wife had married [in] September 2017. When asked why they had only recently decided to marry, the applicant stated they had been living together 10 years and were recently preparing for marriage. He also stated now his parents agreed but had previously objected. When asked when that had happened he stated after his wife applied for the protection visa the first time. When it was put to him that was some time ago, he stated there were no reasons why they were getting married. 

5. The adviser again stated that the Tribunal was not asking about the applicant’s current spiritual practice.

CONSIDERATION OF CLAIMS AND EVIDENCE

Previous protection visa application

1. The applicant, as a secondary applicant for his wife’s application, was previously refused a protection visa and that decision was affirmed by the then Refugee Review Tribunal on 8 September 2011. [In] September 2013, he lodged a second application for a protection visa. In SZGIZ v MIAC [2013] FCAFC71, 3 July 2013, the Full Federal Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s.36(2)(a) from making a further application on the basis of the Complementary protection provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa on the basis of one of the criterion in s.36(2) is eligible to lodge a further valid application on the basis of one of the other criterion.

2. As indicated above, the applicant has previously been refused a protection visa in Australia. However, the visa application under review is a valid application because the applicant is considered 'SZGIZ-affected' as he has not left Australia since the final determination of his previous protection visa application which preceded the Complementary protection provisions.

3. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have the power to consider the second named applicant’s [claims] under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider her claim under the complementary protection provisions in s.36(2)(aa) of the Act. However, because the applicant and the third named applicant were assessed on the family membership criteria, then the Tribunal must assess their claims under both the Refugee Convention criterion and the complementary protection criterion.

Substantive issues

1. 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.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In his application, the applicant stated that the parties feared the consequences of the family planning laws including payment of the social compensation fee and forced serialization but withdrew the entirety of those claims at hearing and said that his fear was based on religious grounds.

4. In his application, the applicant stated that his wife was a committed member of the local church and that as a result he was inspired by her to also become a member of the “Yellers” however at hearing, the applicant’s evidence as to why she inspired him was unconvincing, that is he allegedly became a member because her temperament changed after he met her and after she attended Church however according to his wife’s application, she was a Local Church member in China and before she met the applicant. In addition, when asked about the Local Church’s teaching in relation to marriage, the applicant stated that they lived a noble life and loved each other, had two children and would never separate and that nowhere in the Bible did it say that without a piece of paper they could not be together. When the Tribunal held its second hearing, the parties had married some weeks before but again, when asked why they had only recently married, the applicant stated there were no reasons and appeared not to have given any consideration to the Local Church’s views on the subject. The Tribunal finds that the applicant failed to answer its question about the Local Church’s view of marriage at the first hearing. In addition, the Tribunal finds the applicant’s answers as to why he and his wife married are not consistent with someone who has given consideration to the Local Church’s views on the matter even though he claims to be so committed to his faith that it prevents him from returning to China. The Tribunal has formed the view that the applicant has not turned his mind to the Local Church’s views on marriage because it means little to him.

1. In addition, the Tribunal is not satisfied that the applicant’s wife is or he has ever been a genuine Local Church member. In reaching this conclusion, the Tribunal finds the applicant’s wife has provided inconsistent testimony in relation to when she became a Local Church member as well as how authorities knew of her alleged Local Church involvement.  The Tribunal finds that the applicant’s wife’s answers in relation to who reported her to authorities has changed, that is in her application she stated that her alleged involvement in a family church in China was discovered by a school teacher in early 2007 and she was reported to the village government whereas at hearing on 2 August 2011, she initially stated someone reported her for attending church but when told what her written statement said, stated that it was not correct, and that she had not thought that the teacher would tell anyone. In addition, The RRT also recorded in writing that at hearing on 2 August 2011, she also stated that police came to a Sunday gathering around Chinese New Year, and that it was either New Year’s Day, or the day before New Year’s day, or either [date or date in] January 2007 (the Tribunal noted that these two days were a Wednesday and Thursday) and that a week or two after she was arrested, her parents decided she should travel abroad to undertake further studies however, [those dates in] January 2007 was a Wednesday and Thursday and the Chinese New Year in 2007 was on 18 February 2007. The Tribunal finds the applicant’s wife’s account of events is inconsistent with the timing of the Chinese New Year. Although the applicant has stated that his wife explained that she subsequently said she was arrested [in] February 2007, this means the applicant’s wife’s student visa application was dated [in] January 2007 and indicates she was intending to come to Australia before she claimed that her parents decided for her to travel overseas because the police had been at her Sunday gathering. The Tribunal finds that the applicant’s wife’s answers have continued to change and does not accept that she has been telling the truth about her conversion to Christianity in China. In addition, even though the applicant stated at hearing that his wife talked to him about being persecuted by the local government for her participation in the Local Church activities and she arrived in Australia on [in] May 2007, she did not apply for a protection visa until  [March] 2011, a delay of nearly 4 years. The Tribunal does not accept that the applicant’s wife is a witness of truth or that she was a member of the Local Church in China or that she fled to Australia as a result. Neither does the Tribunal accept the applicant’s claim that because she was a member of the Local Church, the applicant noticed that her temper become really nice and she told him it was because of the Bible and that he went with her and became a Christian.

When the applicant and his wife began attending the Local Church in Australia

1. The RRT recorded in writing that at hearing on 2 August 2011 the applicant’s wife stated that she started attending the Local Church in November 2010 and that, prior to then, she had attended other churches on two or three occasions. Although the applicant has subsequently stated in his written response that she started to go to the Local Church in [Suburb 1] in November 2009 and that she took a rest at home from March to November 2010 to take care of the [baby], and that the November 2010 date may have been interpreter error, the applicant’s wife repeated that date at hearing on 2 August 2011 a number of times and never raised interpreter error at that stage. Accordingly, the Tribunal does not accept this submission and finds she told the RRT that she started attending the Local Church in November 2010.

2. However, certificates presented to the RRT state that she and the applicant began meeting regularly with the church since March 2011, which was the same time that they lodged their protection visa application [in] March 2011. However, the Department of Immigration’s oral recording of its interview with the applicant [in] October 2014 indicates that the applicant told them he became a Shouter not long after his first child was [born], and that he attended Church gatherings around April 2010. The Tribunal finds that this is inconsistent with what the applicant stated at hearing on 27 March 2017, which was that he was a member of the Shouters since the end of 2010. It is also inconsistent with a supporting letter from [the witnesses] stating that he has been a member of the Local Church since the end of 2010, and started attending at least twice a month between the end of 2010 and March 2013. Although the applicant has stated that before March 2011 the Church elders met them irregularly so only wrote they started to participate in the Church regularly after March 2011 and [the witnesses] were not in [Australia] from March to the end of 2010, the Tribunal finds these explanations a poor attempt to conceal the inconsistencies.

3. The Tribunal does not accept that the applicant is a witness of truth, or that he is a genuine member of the Local Church. In reaching this conclusion, the Tribunal has also considered the evidence in regard to the applicant’s baptism, that is in its decision dated 8 September 2011, the RRT recorded in writing that, at hearing on 2 August 2011, the applicant said that he had not been baptised, but his wife said that both she and the applicant were baptised on the same day however at the Department of Immigration’s oral recording of its interview with the applicant [in] October 2014 he told the Department that he was baptised [in] March 2011 and on the same day as his wife. The Tribunal finds that the applicant’s answers in relation to when he was baptised has continued to change. After hearing, the applicant submitted that he was scared and nervous at the hearing on 2 August 2011 and that he was afraid that if he said he was baptised, he would be questioned further about the doctrines of the shouters and the Bible and that because he was very tired after work and his spiritual life did not reach a certain height, he said thoughtlessly that he was not baptised. In the Tribunal's view, the applicant’s evidence is indicative of a person who is simply saying whatever is convenient to his claim, rather than remembering a baptism which actually occurred. The Tribunal does not accept that if he were baptised, he would say that he was not simply because he feared further questioning.

4. The applicant also told the Department [in] October 2014 that he and his wife were baptised [in] March 2011 before she made the protection visa application (which included the applicant as a secondary applicant) however the Tribunal finds she lodged the application [in] March 2011 which means they were baptised after their protection visa application was lodged. While the applicant has stated that his wife might have misremembered if she was baptised before or after her protection visa application, the Tribunal is not persuaded that she would, especially given that her religion was essential to her protection visa claims. The changing nature of the parties’ evidence means that the Tribunal does not accept that the applicant is a witness of truth. The applicant’s evidence is also indicative of a person who is simply saying whatever is convenient to his claim, rather than remembering a baptism which actually occurred.

5. The Tribunal does not accept that the applicant is a genuine member of the Local church.  While the applicant has stated that he has learned the Bible for a long period and has continued to attend church after the previous Tribunal decision and his spiritual life has gradually improved, the Tribunal does not accept that he is genuine. In reaching this conclusion, the Tribunal has also considered that the applicant’s lack of consideration of the Local church’s teachings on marriage is inconsistent with someone who has reflected on Christianity or the Local Church’s teachings.

6. Because the applicant has no genuine commitment to Christianity and he is not a Christian, the Tribunal finds the applicant will not practice Christianity on return to China.

7. The Tribunal accepts that the applicant and his wife may have attended the Local Church in [City 1] on limited occasions. In reaching this conclusion the Tribunal has considered the statutory declarations from third parties [dated] [in] August 2011 and [another witness’s] statement dated [in] March 2017 (which seems to have also been presented as having been made by [names]) however given its concerns with the applicant's evidence, the Tribunal is not persuaded to give these statements enough weight to accept the claims made therein that the applicant has regularly attended as claimed. While the Tribunal is prepared to accept that the applicant and his wife may have attended the Local Church in [City 1] on limited occasions, the Tribunal finds they have done so for the purposes of their refugee claims and the applicant and his wife are not genuine Christians or Local Church members and have no commitment to Christianity. In addition, even though the applicant has suggested that there was a big Chinese community where he lived and they watched closely, the Tribunal does not consider that their isolated attendance at the Local Church in Australia will be known to Chinese authorities.

8. Neither is the Tribunal satisfied that in China, the Chinese authorities have associated the applicant’s wife with the Local Church at any stage.

9. The Tribunal does not accept that the applicant or his wife will be targeted on the basis that they are Local Church practitioners, or that the authorities will inflict physical and psychological harm upon their children. Neither does the Tribunal accept that their children will have restricted access to schooling, be discriminated against by their peers at school or evicted from their school or arrested for interrogation.

10. On the evidence before it, the Tribunal does not accept that, now or in the reasonably foreseeable future, there is a real chance that the applicant or the third named applicant will be persecuted for Refugee Convention reasons if they return to China now or in the reasonably foreseeable future.

11. For the reasons given above, the Tribunal is not satisfied that the applicant or third named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

12. The Tribunal has found it does not accept that the applicant or his wife are genuine Local Church members of that they will be targeted on the basis that they are Local Church practitioners, or that the authorities will inflict physical and psychological harm upon their children. In addition, even though the applicant has suggested that there was a big Chinese community where he lived and they watched closely, the Tribunal does not consider that their isolated attendance at the Local Church in Australia will be known to Chinese authorities.

13. Accordingly, in view of all of these matters, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, there is a real risk that the applicants will suffer significant harm.

14. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

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

Angela Cranston
Member