1506226 (Refugee)

[2017] AATA 1818

1506226 (Refugee) [2017] AATA 1818 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506226

COUNTRY OF REFERENCE:                  China

MEMBER:Nicola Findson

DATE:20 September 2017

PLACE OF DECISION:  Perth

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

Statement made on 20 September 2017 at 11:13am

CATCHWORDS

Refugee – Protection visa – China – Religion – Almighty God – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (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

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

2. The applicant, who claims to be a citizen of China, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] April 2015.

   RELEVANT LAW

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

5. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

12. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

13. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

15. 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

16. 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.

    BACKGROUND AND PROTECTION CLAIMS

17. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. 

18. In her application for a protection visa, the applicant declares that she was born in Pingdu City, in the Shandong Province, China.  She also declares to be a citizen of the People’s Republic of China and not to hold citizenship, or to be a national, of any other country.

19. The applicant declares that after completing 12 years of schooling in her home country, she held various [roles]. She also states that she lived and worked in [Country 1] between 2004 and 2007.

20. The applicant has previously visited Australia, as the holder of a [temporary] visa between [January] and [February] 2011.  She last entered Australia, [in] August 2014, as the holder of a [second temporary] visa. 

21. The applicant, in a statement accompanying her application, sets out:

    “I was persecuted by Chinese government because I believe in ‘Almighty God’.

    On 2004, I went to [Country 1] working [in] [location].  When I just arrived in [Country 1], I had been through a hard time because I was not familiar with environment with language and cultural barrier and homesickness.  But my colleagues were very friendly to me.  Although my [Country 1 language] was very limited, they taught me [the Country 1 language] with patience and we often exchanged our own cultures together.  One of my [colleagues] was a pious Christian.  She was enthusiastic and gentle and often shared the stories of Bible with me initially.  She always invited me to the church to receive lectures from pastors.  At the beginning, I thought it was a good opportunity to expand my circles of [Country 1] friends, understand more local culture and traditions and enhance my [Country 1 language], so I went to church lots.  But gradually I was under the great influence of other Christian, I became a pious Christian.  Therefore, I read Bible every day and went to church every week praying with other brothers and sisters in the church.  I also listened to the Bibles lectures presented by pastors and attended other church activities.

    On 5.2007, when the visa was due, I quit the job in [Country 1] and went back to China.  After I returned to China, I tried to find a church nearby immediately because I wanted to devote myself to serve God.  At one time, I met [Ms A] when I had dinner party with other friends.  She was a very pious ‘Almighty God’ believer.  I thought it was fate to let me know a person with belief just like me.  So I took an active role to join her church. After I knew more about ‘Almighty God’, I realized that it was part of Christian religion and it pursues kindness of humanity and justices with continuous self-inspection and self-confession.  But China is a country without religion and treats ‘Almighty God’ as heresy.  So when we attended church activity, we had to be very cautious.  We would arrange 2 or 3 people to guard the door in case the police were in the vicinity, so we could withdraw in time.  We sometimes distributed the ‘Almighty God’ related advertising brochures to the neighbouring households when it was at night.  I wanted to try my best to serve ‘Almighty God’.  However, the misfortune happened on me.  Since the incident happening in [city] China, the Chinese government started to supress ‘Almighty God’ members.  On [date].7.2014, when we were in the middle of church activity, there was a group of police raiding our church.  ‘You are reported attending illegal activity’ the police said viciously.  They took 15 people away including me to the police station.  As this was my first offence, they released me after requiring me to sign the declaration letter against ‘Almighty God’ and to report back to the police station weekly.  I could not tolerate that my freedom was restricted and I had to live in a country without religious freedom and human right.  So I asked my friend to help me to find an agent which lodged the [second temporary] visa for me on [date].07.2014.  On [date].08.2014, I came to Australia safely.  Now I apply for refugee protection visa from Australian government and hope Australian government could consider my situation carefully and offer me protection against Chinese government’s persecution.”

    The Delegate’s Decision

22. In a decision record, the delegate sets out his findings and the reasons for refusing to grant the applicant a protection visa. 

23. The delegate found that the applicant’s claim of being of the Christian faith is supported.  However, he found that her claim that she could not return to China for fear of being subjected to persecution by the Chinese government because of her Christian faith is not supported.

    Application for review

24. On 7 May 2015, the applicant applied to the Tribunal for review of the delegate’s decision.  No further evidence or submissions were received from the applicant in addition to the application for review form, which attached the delegate’s decision.

25. The applicant appeared before the Tribunal on 21 July 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    Evidence presented at Tribunal hearing

26. The Tribunal discussed the applicant’s background, current circumstances and claims for protection at the hearing.  The applicant’s evidence was frequently vague and difficult to comprehend.  The Tribunal reframed questions and checked the applicant’s responses as often the response appeared to be unrelated to the issue being discussed.  The applicant also took time and appeared to not know how to answer questions at times. The Tribunal checked that she understood the Mandarin interpreter and the applicant said she could understand her. The following is a summary of her oral evidence at the hearing. 

27. The applicant said that a lawyer in [City 1 in Australia] had helped her to complete her application for protection.  She said that she was confident her application was true and correct. 

28. The applicant told the Tribunal that her mother, father, and her [age] year old daughter live together in Pingdu City, in Shandong Province, China.  Her father is retired, but was previously [an occupations]. Her mother has always been a housewife.  Her daughter is studying.  The applicant also has a [sister], who is married, but also lives in Pingdu City.

29. The applicant told the Tribunal that she is divorced.

30. The applicant said she has no family in Australia.

31. The applicant told the Tribunal that when she had completed her primary and secondary education, she started working for a [company].  She said she worked for this company for about 2 years.  She said she during 1996 and 1997, she spent a year working in [Country 2] for that company.  She said she returned from [Country 2] and continued working for company.  She said she married about a year after returning from [Country 2].  She said she became pregnant about 3 months after she married and stopped working at this time.  She said before she came to Australia she was working. She said between 2004 and 2007 she again went to work in [Country 1].  She said she [worked].  She said she went to [Country 1] because she had a poor relationship with her now ex-husband and was aware that she would make better money working in [Country 1].  She said that when she returned to China she started working in [an occupation].  

32. Since arriving in Australia, the applicant has [worked].  She currently lives in a house share situation in [Suburb 1], [State 1].

33. The applicant said she arrived in Australia [in] August 2014, as the holder of a [second temporary] visa.  She told the Tribunal that she did not encounter any problems leaving China.

34. When asked why it was that she decided to come to Australia, the applicant said that she liked Australia, and that she had a [friend] - in [City 1].  In October 2014, her friend relocated to [State 1] to open a shop, and the applicant accompanied her.   

35. When asked why it is she fears harm if she returns to China, the applicant told the Tribunal that in 1993, there was an incident involving religion, and a person was killed.  She said after that, the government started tightening its grip on religious beliefs.  She said if people attend gatherings, they are nervous.  She said that she liked bible stories, but in China one cannot study the bible at ease.  She said that in 2013 (initially she said 2003), police frequently visited her parents’ home and warned them not to allow the applicant to believe in any religion.

36. The applicant told the Tribunal that she was introduced to Christianity by her neighbour in 2012.  The Tribunal queried the applicant about her statement that accompanied her application indicating that she was introduced to Christianity while in [Country 1] in 2004; went to church “lots”; and became a “pious Christian”.  The applicant said that it was not at this time.  She told the Tribunal that a colleague in [Country 1] – [Ms A] - introduced her to Christianity. She said that on Sundays she would go to a church with her colleague because she liked it.  However, she also indicated to the Tribunal that could not understand much of what was said during the church services. 

37. The applicant told the Tribunal that in 2012, she started attending family church gatherings with her friend and [neighbour].  She said these gatherings occurred on Sundays at [her neighbour]’s home.  She said that 15-16 people would generally meet.  She said they believed the love and spirit as contained in the bible.  She said they would sing and talk about Jesus and the bible.  When asked if there was a leader, after some hesitation, the applicant replied that there was a [leader] but he was not a Priest.  She said that she only attended the gatherings on a Sunday and did not participate in any other religious activities or have any other church commitments. 

38. The applicant indicated to the Tribunal that she liked what Jesus said and the stories in the bible.  She told the Tribunal that her parents are not religious, but were aware that she was attending the church gatherings in China.  She said that her parents were probably happy for her to attend the church gatherings given that she liked to do so.

39. The applicant told the Tribunal that Christianity is important to her because as she is divorced it helps her in life with its love and kindness. She told the Tribunal that she thinks if she follows the bible it will help her.  She said that the bible has changed her a lot and she relies on and trusts the bible.

40. The applicant told the Tribunal that she acknowledges Easter and Christmas. 

41. The Tribunal discussed with the applicant that the claims she had set out in her statement accompanying her application were very different to what she had told the Tribunal.  For example, she said in her statement that when she returned to China in 2007, she tried to find a church nearby immediately because she wanted to devote herself to serve God.  The Tribunal indicated that it had concerns about her inconsistent evidence and asked the applicant to explain why this statement was so different to the oral evidence she had just given.  The applicant replied that she had forgotten what was in her statement, but what she was saying right now was the truth.  She said that the information contained in her statement was not correct. 

1. The Tribunal asked the applicant to tell it more about her practice of Christianity in China, to be satisfied of her claims in this regard.  The applicant reiterated to the Tribunal that her religious activity consisted of attending a gathering on a Sunday at her neighbour’s house.

2. The applicant asked about the applicant’s religious activity in Australia.  The applicant told the Tribunal that after she settled in [Suburb 1], [State 1], she started to attend church services at a nearby church every Sunday, and was baptised there.  She referred to a letter from the Parish Priest of [an] Anglican Parish of [Suburb 1] provided to the department, which confirms that the applicant was baptised at the church [in] February 2015. She said she attends a Sunday church service. 

3. When asked if it was a requirement of her faith to talk to others about her religion, the applicant responded that it was not a requirement to introduce others to her church, but she wanted to talk to people about her faith.  She said she would attend at the [Church 1] in [Suburb 2] to socialise with other Chinese speaking Christians. She said that she would talk to her friends who attended the casino or bars and tell them that that with the help of God their lives would be more fulfilled.

4. The Tribunal asked the applicant about what had happened to her in China because of her practice of Christianity.  The applicant indicated to the Tribunal that there is not much freedom of religion in China.  The Tribunal prompted the applicant about the incident she claims occurred [in] July 2014, during a gathering.  She replied that one of the evil church organisations killed a woman.  But, she said that the religion she believes in is not one of the evil religions in China. She said the police would go to places to stop people gathering. When the Tribunal asked the applicant about what had happened to her specifically in China because of her practice of Christianity, she replied that she did not want to talk about it.  The Tribunal indicated it needed to understand the basis of her claims to fear harm if she returned to China, so it needed her to talk about it.  The applicant then went on to say that if the authorities in China believe you are a member of an evil religious organisation they just want to lock you up and threaten your family.  She went on to say that the religion she believed in was not one of these evil religions.  The Tribunal again asked the applicant to take it through the incident she says occurred [in] July 2014.  She said that she could not quite remember what had happened.  The Tribunal asked her if she had been arrested, to which the applicant replied “yes”, after some hesitation.  When the Tribunal prompted the applicant for more information the applicant said that five or six police officers entered her neighbour’s house and people tried to get out but she did not go fast enough.  She said the police took her back to the local police station with one other person.  She said she was warned by the police not to participate in the gatherings again. She said, after some hesitation, that she was detained for three days and during this time she was questioned about the gathering and again warned to stop gathering.

5. The Tribunal again raised inconsistencies between her oral evidence and the information contained in her application.  In particular, her application sets out that 15 people were arrested by a group of police, including the applicant, and that as it was her first offence she was released after signing a declaration letter and to report weekly to the police station.  The Tribunal asked the applicant to explain why the information was so different.  The applicant said that the police did raid their gathering and she was arrested.  She said she was made to sign something saying she would not attend gatherings.  She said she was not required to pay any fine.  She said she cannot recall the other person who was arrested.  She said she did not have any contact with anyone else from the church group after her arrest.

6. As to the Tribunal’s concerns about the inconsistent information before it, the applicant told the applicant that she cannot remember clearly.  She indicated that she has a vague memory.  The applicant told the Tribunal that she has been in Australia for two years and all she wants to do is forget about the past. 

7. When asked whether her religious beliefs have had any impact on her family in China, the applicant replied no.  She then went on to say that she had learned from her parents that they were visited once by the police in 2015 and asked about her whereabouts.  However, she said her parents told the police officers that she was in Australia and they had not had any problems since. 

8. When asked about what she would do if she was required to return China, she said she had heard the Chinese government is not persecuting Christians anymore so she would return to her home and continue to attend church.  She told the Tribunal that she did not yet know the name of the church she would attend if she returned.  When the Tribunal asked the applicant if she was still fearful of returning to China, she responded that she did not know and that she was “not fearful here”.   

9. The Tribunal discussed with the applicant country information concerning religious activity in China.  The Tribunal indicated to the applicant that reports are produced by government, non-government and human rights agencies from around the world, including the Department of Foreign Affairs and Trade (DFAT), and that country information indicates while the Chinese Government does continue to perpetrate violations of religious freedom, it is possible for people of the Christian faith to practice their religion without fear of harm in China.  It was put to the applicant that the DFAT Country Information Report on China dated 3 March 2015 assesses that religion in China can be practised within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Government.  Religious adherents are therefore subject to a range of restrictions that vary in extent and intensity according to local conditions. Given this, it is difficult to generalise about religious practice in China but basic assumptions can be made according to whether people exercise their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not religious expression is perceived by the government to be closely tied to broader ethnic, political or security policies.  The DFAT report sets out that millions of Protestant Christians in China worship at churches which are not officially registered. And, DFAT cite academic sources that indicate while groups designated as ‘evil cults’ are subject to suppression, unregistered Protestant churches are generally left alone.[1]  The report states that 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.

   [1] Schak, David 2011, ‘Protestantism in China: A Dilemma for the Party-State’, Journal of Current Chinese Affairs, Vol 40, No 2, pp.84-85 < CIS26836

10. By way of response to the country information, the applicant replied that she was happy to hear this information.   

11. The Tribunal also referred to the country information set out in the delegate’s decision record, which was provided by the applicant to the Tribunal, indicating that if the applicant was to return to her home area of Pingdu City, she would be able to live, work and worship in relative safety.  In particular, the delegate referred to a 2015 Baptist News Global report about Christianity in Pingdu City, which indicates: “A vibrant congregation founded in 1893 by Protestant Missionaries, congregants of the Meng En Christian Church have moved out of the crumbling temple they used as a meeting place to a new building funded by the Mountain Brook Baptist Church of Birmingham Alabama.  The original Pingdu building was made to hold 150 people, but services often included more than 500 people.  The old building was assigned by the government after Christians resumed public worship there in 1987 and hundreds crowded into nearby alleys during services at the historic temple. Now, the new building for Meng En Christian Baptist Church officially seats 1,500 though nearly 2,500 people regularly attend services”. By way of response to this country information, the applicant indicated to the Tribunal that she was happy about this. 

12. When asked if she would like to make any further comment about her claims the applicant told the Tribunal that while she has lived in Australia and attended church she has felt great freedom.  She indicated that she likes the church in Australia and it is a better life for her here.   

13. The Tribunal asked the applicant why she had not applied for a protection visa as soon as she arrived in Australia.  The Tribunal indicated that her delay in applying for her visa might lead it to think that she did not hold a grave fear of returning to her home country. The applicant responded that when she arrived in Australia, she discovered that church here and the country system is better. 

    S424AA Information

14. The Tribunal explained that it would put information to the applicant pursuant to s424AA of the Migration Act which, subject to her comments, would be the reason or a part of the reason it would affirm the decision under review. It explained the applicant had the opportunity to seek an adjournment before providing a response to the information.

15. The Tribunal put to the applicant that she had given inconsistent information in the application process.  In particular, it identified that there were significant inconsistencies between her oral evidence and her statement accompanying her protection visa application as to when it was she first started to attend church gatherings in China as well as in relation to the circumstances surrounding her claimed arrest by the Chinese authorities because of her religious activities in July 2014.  The Tribunal explained that these inconsistencies might lead the Tribunal to think that she did not suffer any harm on the basis of her religion in China.  It indicated it also cast doubt over the applicant’s credibility and the claims she has made.

16. There was an adjournment before the applicant provided her comments in relation to the information put to him by the Tribunal.  She responded that she could not remember what she wrote in the statement.  She also said that according to her experience, she was not given a lot of freedom to practice religion in China. 

17. The Tribunal asked the applicant if there were any other reasons she feared returning to China.  She did not identify any other fears. 

18. When asked if she wished to make any further comment about her claims, the applicant told the Tribunal that she has enjoyed living in Australia for the last two years.  

19. The Tribunal allowed the applicant additional time to provide any further comment or response in relation to the s424AA information in writing. The applicant did not provide any additional comment or response to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in China and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.

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

    Country of reference

22. On the basis of the applicant’s passport provided to the Department, the Tribunal finds that the applicant is a citizen of China. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than China. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Third Country Protection

23. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of Claims

24. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Section 5AAA of the Act provides it is the responsibility of the non-citizen to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

25. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

26. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, 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 established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (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). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

27. The Tribunal carefully considered all of the evidence in this case, including the applicant’s written application, her oral evidence and claims, and the relevant independent country information.  Having done so, it formed the view that the applicant has exaggerated her claimed fear of harm at the hands of the Chinese authorities because of her religious activities.  The Tribunal is inclined to accept that aspects of her claims are credible, including that she is a Christian and has attended a Christian church in her home province as well as in Australia.  However, it found that vital aspects of her claims, including that her parents were harassed by the police because of her religious activities and that she was arrested by police because of her religious activities, to be vague and contrived.  The Tribunal concluded that the applicant does not objectively face a real chance or a real risk of serious or significant harm in China for the reasons that follow.

28. The Tribunal was persuaded that the applicant articulated a genuine faith, placing emphasis on leading a Christian life.  While the Tribunal has some doubts about when the applicant was introduced to a Christian church in China, because of inconsistent evidence given by her in this regard, it nevertheless accepts, on the basis of all the evidence before it, that the applicant did attend church gatherings in China before she left her home country.  Further, the Tribunal considers that her faith deepened after she became involved with, and was baptised in, an Anglican Parish in Australia. Ultimately, the Tribunal was satisfied that the applicant holds a genuine Christian faith. 

29. The Tribunal considered the applicant’s involvement in the church life, and was of the view that she takes a participatory role.  On the evidence, the applicant attends a Sunday church service; has attended at the [Church 1] in [Suburb 2] on occasion to speak with other Chinese Christians; and sometimes talks to her friends about her faith. On this basis, the Tribunal does not consider that the applicant takes a leadership role in the Church.  Further, on the evidence, while the Tribunal accepts that the applicant discusses her faith with her friends, it notes that it is not a requirement for her to introduce others to her Church.  The Tribunal therefore considers this ‘preaching’ activity to be of a limited nature, which takes place within the applicant’s friendship circle.  On the evidence the Tribunal does not accept that the applicant will engage in any other form of witnessing or preaching in China.

30. The Tribunal has considered that in her statement the applicant indicated she sometimes distributed brochures to neighbours at night in China. However, during the hearing the applicant did not make mention of this, despite being repeatedly asked her religious activities.  Her oral evidence indicated that attending a Sunday gathering at her neighbour’s house was the extent of her religious activity in China. The applicant also indicated to the Tribunal, when concerns about the significant inconsistencies in her evidence were raised with her, that the information in her statement accompanying her application was not correct.  On the evidence before it, the Tribunal does not accept the applicant’s claim that she distributed religious brochures to anyone in China.

31. In summary, the Tribunal finds that the applicant holds and practises Christian beliefs. It finds that she has a profile as an active participant, attending Sunday church services.  The Tribunal finds that the applicant’s preaching activities are of a limited nature within the applicant’s personal network.  The Tribunal finds that the applicant does not have a profile as a leader in the church.

32. After reviewing all of the evidence before it, the Tribunal does not accept the applicant’s claims to have suffered harm because of her Christian beliefs are credible for the reasons discussed below. 

33. Firstly, the applicant presented claims at the Tribunal hearing which were considerably different to her written claims.  In particular, the applicant’s claims set out that 15 people were arrested by a group of police, including the applicant, and that as it was her first offence she was released after signing a declaration letter and required to report weekly to the police station.  However, in her oral evidence to the Tribunal the applicant described being arrested by five to six police officers and being taken back to the local police station with one other person from her congregation; she said she was warned by the police not to participate in any gatherings again; and she said she was detained for three days during which time she was questioned about the gathering and again warned to stop gathering. The Tribunal considered the applicant’s explanation that her memory was “vague”; that she has been in Australia for two years and just wants to forget about the past; and that she could not remember what she wrote in her statement. However, because her written claims and her oral evidence are so vastly different, and because this incident is so significant to her claims for protection, the Tribunal does not accept this explanation. The applicant also gave shifting evidence about the impact of her religious beliefs on her parents. The applicant made no mention of her parents being harassed by the authorities in her written statement accompanying her application.  When she raised this claim during her hearing before the Tribunal, her evidence was inconsistent and unpersuasive.  For example, she initially told the Tribunal that in 2013 the police had “frequently” visited her parents’ home and warned them not to allow their daughter to believe in any religion.  However, later in the hearing, the applicant told the Tribunal that while the police had visited her parents once in 2015 (after she had left her home country) to ask about her whereabouts, her religious beliefs had not had any impact on her family. The significant discrepancies in the applicant’s evidence lead the Tribunal to have significant concerns about the credibility of her claims to have suffered harm at the hands of the Chinese authorities because of her religious beliefs.

1. Secondly, the applicant’s evidence at the hearing of her claimed arrest was lacking in detail and unpersuasive.  The applicant required considerable prompting when asked about the harm she had suffered in China because of her beliefs. Despite being asked several times by the Tribunal what had happened to her in China because of her practice of Christianity, the applicant did not raise her arrest of [July] 2014.  When the applicant was specifically asked about the incident she claimed occurred [in] July 2014, she replied that she “did not want to talk about it” and that she “could not quite remember what had happened”.  It was not until the Tribunal explained that it needed to understand the basis of her claims to fear harm if she returned to China, and queried whether she had been arrested at all, that the applicant indicated she had been arrested when she was at a church gathering.  However, aside from expressing the general gist of what had happened - that when the five to six police officers entered the house she did not go fast enough; that she was taken back to the local police station with one other person; and that she was detained for three days, during which time she was questioned and warned to stop gathering, the applicant was unable to provide specific details or context of her arrest and detention.  Further, she blamed her “vague memory” for not remembering the incident clearly.  Even allowing the time that has passed, the lack of details provided by the applicant about her arrest, indicates to the Tribunal that her fears of the authorities, because of her religious beliefs, are not genuinely held.  It is reasonable to expect of an applicant who claims she has been arrested and subjected to three days in custody, to be able to recall this incident in much greater detail.   The applicant’s inability to provide detailed information about her arrest and detention which she claims took place immediately prior to her fleeing China and coming to Australia, heightened the Tribunal’s concerns about the applicant’s claims to have suffered harm in China because of her religious beliefs.  

2. The Tribunal also considered the applicant’s evidence where she claimed she departed China using her own passport.  The Tribunal accepts her claim that she presented her passport, issued to her in 2009, upon departing China.  The Tribunal considers this is further evidence that the applicant has not encountered any difficulties or come to the attention of the Chinese authorities because of her religious beliefs, because if she had it would expect she may have been detained or arrested when she sought to depart her country.

3. The Tribunal has considered all the evidence of the applicant.  As detailed above, there were significant discrepancies in her evidence, and important aspects of her claims were limited in detail.  For these reasons the Tribunal does not accept that the applicant’s parents were ever harassed or warned by the Chinese authorities in relation to her religious beliefs, nor that she was arrested at a church gathering and then detained by the police, as claimed.   

4. In considering whether the applicant faces a real chance of serious harm, the Tribunal has considered the applicant’s claim that she would be persecuted if she returns to China by being threatened by the authorities and not encouraged to hold her religious beliefs.  In this assessment, the Tribunal has taken into account the oral evidence of the applicant, the finding above concerning the applicant’s religious practice, the finding that the applicant has not been subjected to any harm in China for her religious beliefs, and independent country information put to the applicant at hearing.

5. During the hearing, the applicant told the Tribunal that she had become aware that the Chinese Government is not persecuting Christians anymore and, although she wanted to stay in Australia, if she was to return to her home country she would go back to her home area and continue to go to church.  The applicant also conceded that she did not know if she was still fearful of returning to China.  She commented that she was “happy to hear” the independent country information put to her by the Tribunal, in relation to China generally as well as in her home area.  Further, she made it clear to the Tribunal that the religion in which she believes is not one of the evil religions in China. On this evidence, and in the light of the findings above regarding the applicant’s religious practice, the Tribunal considers that the applicant will be able to continue her participation in a Sunday worship service, in a manner similar to her current practice, in Pingdu City without any adverse consequences.  The Tribunal has also considered the nature of the applicant’s ‘preaching practice’, which is limited to the applicant’s social and church network. The Tribunal finds that the applicant will not change her practice on return and will not ‘preach’ beyond what she does now, a practice where there is not a real chance that she will attract any adverse attention of the Chinese authorities.  The Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of the Chinese government because of her religious practice.

6. The Tribunal is therefore not satisfied that there is a real chance that the applicant will be subjected to persecution in China in the reasonably foreseeable future for reasons of religion or for any other Convention reason.  It finds that the applicant does not have a well-founded fear of persecution for a Convention reason. 

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Consideration of complementary protection claims

8. As the Tribunal has found the applicant does not have a well-founded fear of persecution pursuant to the provisions in s.36(2)(a), it must now consider whether she meets the criteria in s.36(2)(aa), that is the complementary protection provision.  This requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, that is China in this case, there is a real risk that the applicant will suffer significant harm.

9. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition:  MIAC v SZQRB [2013] FCAFC 33. For the same reasons the Tribunal expressed in its consideration of the applicant’s s.36(2)(a) claims, the Tribunal does not accept the applicant faces a real risk of ‘significant harm’ as that term is defined, as a necessary and foreseeable consequence of being removed to China.

10. The Tribunal therefore finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, that there is a real risk she will suffer significant harm.  The applicant therefore fails to meet s.36(2)(aa) of the Act.

    Conclusion

11. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

12. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Nicola Findson
    Member