1507343 (Refugee)

1507343 (Refugee) [2017] AATA 1349 (28 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507343
COUNTRY OF REFERENCE:                  China
MEMBER:Christine Cody
DATE:28 July 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 July 2017 at 6:48pm
CATCHWORDS
Refugee – Protection visa – China – Religion – Christianity – Social group – Family member of gambling addict – Credibility issues – Inconsistent evidence – Delay in seeking protection
LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 91R, 91S, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 - SUMMARY

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] May 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented by his registered migration [agent] in the application before the Department, and in the application for review before the Tribunal,
The applicant claims to be a citizen of the Peoples’ Republic of China (“China”). He applied for the visa [in] May 2014 on the grounds that he is a refugee or entitled to protection under Australia’s complementary protection provisions.
The Tribunal has before it the Departmental file[1] which contains documents including his protection visa application forms, a statement (in English and Mandarin), Form 80 (Personal Particulars), a copy of the identity pages of his two passports, a copy of the interview recording (to which the Tribunal has listened), supporting documents including those provided by the applicant at interview (including his birth certificate, his parent’s divorce certificate dated [2008] and a criminal judgment relating to his father and others) and other documents obtained by the delegate from other sources (including the Compliance Interview in May 2014 when the applicant was detained for being unlawfully present in Australia).
[1] The Tribunal also has before it the Departmental file relating to the applicant’s offshore and onshore student visa applications.
After the interview, the delegate forwarded an email to the agent dated [April] 2015 suggesting evidence which could be provided in support of the applicant’s claims. The applicant responded by providing country information, and responses to the delegates concerns raised at interview.
After the delegate refused the applicant’s claims he lodged an application for review to the Tribunal. He provided supporting statements, photographs, certificates.
The applicant appeared before the Tribunal on 10 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal put to the applicant that it had concerns about his credibility and the credibility of his claims. It discussed areas of concern and said that it would forward a letter pursuant to s.424A of the Act. The applicant provided a number of post-hearing submissions, letters and documents, including in response to the Tribunal’s s.424A letter.
Relevant evidence, information and post-hearing correspondence is set out below. There are no relevant non-disclosure certificates to consider.
The Tribunal has considered country evidence that was provided by the applicant, and in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report China, 3 March 2015 (the DFAT report), and DFAT Thematic Report, Unregistered religious organisations and other groups in the People's Republic of China, 3 March 2015 (the DFAT Thematic report).
A summary of the relevant law is provided at Annexure A.
For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution as a refugee, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of background and claims made to the Department
According to his written documents (including his responses to the delegate’s post interview email), the applicant’s background and claims can be summarised as set out below.
The applicant was born in Tianjin on [date]. He speaks, reads and writes in Chinese, and English (intermediate level). His ethnicity is Han. He does not have a religion.
He was educated in Tianjin, and then studied an undergraduate course at [University] from September 2004 until July 2006.
His [father] and his [mother] reside in China. They are married.His family were medium wealthy and supported him to attend university.
He resided in China all of his life until he left China, legally, [in] August 2006, arriving in Australia the same day. Once in Australia, he returned to visit his parents on two occasions ([December] 2006 to [January] 2007 and [November] 2008 to [December] 2008).
He studied a Bachelor [Degree] from February 2007 to October 2009 in [Australia] (certificate provided).
In Australia he has worked in a variety of [jobs], and various odd jobs.
He commenced a de facto relationship in Australia [in] April 2014 [by the time of the Tribunal hearing that relationship had ended].
He is lodging a protection visa application relying upon complementary protection. He has a number of reasons for remaining in Australia: he is afraid of retaliation from the creditors as well as loan sharks that his father borrowed money from. Further, his de facto partner is in Australia.
After the applicant came to Australia in August 2006, his father was encouraged to gamble by a distant relative (“[Mr A]”). His father gambled a lot including at underground illegal casinos owned by persons with underworld connections. His father lost [approximate value] in savings and properties and stopped looking after his own business. The applicant and his mother and [sibling] attempted to stop the father gambling, but they were unsuccessful.
The applicant returned home in November 2008 and became aware that his father could not go home because he had a [number]RMB debt from gambling. The casino had already sent people to harass his mother and [sibling] and they smashed many pieces of furniture and threatened the family. When they visited again, the applicant gave them some money and promised that the rest would be paid off because he was about to graduate in Australia and would get full and part-time jobs and he would guarantee the debt would be paid. They believed the applicant.
The mother applied for a divorce at the end of 2008 and the [sibling] ended [his/her] relationship with the father.
In early 2009 the father told the applicant that he had paid off the [debt] and there was no problem. However his father continued to gamble and in May 2010 he lost significant amounts while gambling with [Mr A] at the underground casino. His father wanted to borrow [number]RMB (the applicant said this was an amount equivalent to “less than $A[number]”) to continue gambling and claimed he was good for the money (and that he could rely upon the applicant who had money in Australia); [Mr A] lied to the casino and agreed that the father was good for the money because the applicant was always sending money to the applicant. The applicant’s father signed an agreement with the casino with the applicant’s name on it which stated that if the applicant’s father was unable to pay the money back, it would be the applicant’s responsibility to pay it.
At end May 2010 his father told him not to return for the above reasons.
His father was angry at [Mr A] and in August 2010 his father and [number] helpers kidnapped [Mr A] and demanded ransom money from his family. Some ransom was paid and [Mr A] was released. [Mr A] however reported the applicant’s father to the police and so his father tried to use a [weapon] to threaten [Mr A]. [In] August 2010 his father and accomplices were arrested. [In] April 2011 his father was found guilty of kidnapping and [weapons] charges and sentenced to [number] years gaol and a fine. [Mr A] had used his connections to officials to ensure that the father received a heavy sentence (almost double the maximum prison sentence). As noted above, a criminal judgment document was provided by the applicant, providing these details.
The applicant has been unable to return to China since 2010 because his father owed significant debt (with accumulating interest) to the casino owner. The applicant was considered by the casino owner (who has underworld background and police/government connections) as responsible for the debt. If he returns, the applicant will be tortured in different ways to cause severe physical injury to him so as to force him to pay the debt. Further, [Mr A] will seek revenge upon him for having been kidnapped and beaten by his father. He will use his power to persecute the applicant as well. At interview, he said that he will be kidnapped, denied employment, be locked up and placed in a psychiatric hospital.
He would not be able to seek protection from the police or government, because organised crime, including the casino, has connections to police and government.
He wanted to apply for protection ever since his father was imprisoned but he was told by solicitors/migration agents that he did not have a proper reason to claim protection. He was told that he could apply for a spouse visa if he lived with a girl for two years. His first girlfriend “accepted his condition and therefore they started to live together” in September 2010. She returned however to China in July 2013 and the relationship ended. In September 2013 he started a relationship with a second girl who “accepted his condition and was willing to start a relationship with him and if it went well they would be married”. He was living with her at the time he was located as unlawfully present by Compliance. The applicant was questioned by the Compliance officers: his responses to their questions undermine his claims (as discussed further below).
He said that he lodged the protection visa application once he knew complementary protection provisions were implemented (24 March 2012).
Summary of circumstances and claims made after the refusal of his application by the delegate (May 2015)
Concerning the debt, he told the Tribunal at hearing that the [number]RMB debt has not been repaid and he will be persecuted for that reason.
Further detail was provided to the Tribunal as to his plans after he was told by his father in May 2010 that he should not return to China: He told the Tribunal that he was aware in June 2010 that his student visa application had been refused. He said that he had sought migration advice in 2010, 2011 and 2012, he understood that his only option for remaining in Australia was a spouse visa based on a relationship with a girl who had permanent residency. He met a girl who had had permanent residence and he intended to make an application to remain in Australia as her dependent, however she left Australia in 2013 and the relationship ended. So, he intended to stay in Australia and to find another girl that he could marry so that he could make an application to remain in Australia. He did not, after the first relationship ended, seek migration advice about his options and instead remained unlawfully, working in Australia, waiting to meet another girl who had permanent residence who he could marry. He then started a relationship with another girl who had permanent [residence] and he started living with her, however that second relationship later broke up.
New claim: Christianity. The applicant claimed that he turned to Christianity in February 2016 as a result of his upset that his claims had been rejected and spiritual emptiness. He commenced attending church in about February 2016, thereafter he became involved in various Christian activities such as attending Youth Fellowship, Sunday service, a Knowing Jesus course and New Christian Nurturing course, a camp. He is interested in attending further courses including a leadership course. Further he attends many evangelising activities including [Suburb 1] [Festival] and he appeared in a Christmas play.
He now claims to face harm if he returns to China because of his religion, and because he will carry out his duty to evangelise, which is forbidden in China. He wants to stay in Australia and preach God’s word.
After he became a Christian he met a Christian girl, [Ms B], an Australian citizen, who is a senior member of [Suburb 1] Anglican Church. She is [younger] than him. He started a relationship with her and intends to marry her and it is a genuine relationship. It was a “miracle” that her parents agreed to the relationship. He has been evangelising to his family in China and they do not object. They both evangelised to [Ms B]’s mother who has become a Christian. Many miracles have happened.
Three witnesses attended the hearing: Pastor [C] (Assistant Chinese Minister from [Suburb 1] Anglican Church), [Mr D] (leader of Youth Fellowship group of the church), and [Ms B], his girlfriend/fiancée. They gave evidence about the applicant’s activities and his relationship with his girlfriend/fiancée.
The applicant’s fears upon return: The applicant told the Tribunal that the village is small and the underground figures will come after him if he returns, as they will know he is back. They will force him to pay the money back and they will force his family members (mother and [sibling]) to pay the money back and they will cut off his ears and other such harm. Concerning Christianity, he will face harm as a Christian including because, as a Christian, it is his duty to evangelise, and he will do so in China.
Evangelising: The applicant claimed that when he became a Christian, he shared his experiences about Christianity and he started to evangelise in April 2016 and encouraged other people to come to church. However, neither the witness Pastor [C] nor the witness [Mr D] were aware that the applicant proselytised (other than [Mr D] saying that he saw him hand out pamphlets on one occasion). [Ms B] claimed that he actively engages in proselytising people through the Gospels.
Concerns discussed at hearing, including: The Tribunal discussed concerns about his responses at the compliance interview and his delay in lodging a protection visa application. It noted its concerns with his migration history and put to the applicant it was concerned that he may have made up the claims in relation to his father and that it may be that such claims were not the reason why he did not return earlier to China. It also put to the applicant its concern that, according to his evidence, he had a plan to find a woman to marry; that hadn’t happened so he couldn’t get a spouse visa; then after he could not get a protection visa (once the delegate refused his application), he became a Christian. The applicant said that it was not true that he wanted to find another woman in order to remain in Australia, each relationship was genuine. He said he did not become a religious person because he wants a protection visa; he has genuine intentions, he is a Christian and we need to express the belief to others in the world, however public expression of belief is illegal in China. The Tribunal noted that country information[2] indicated that there are about 70 - 100 million unregistered protestant organisations – the members participate in these activities including public expression of belief. He said that it is underground and people who express their belief get arrested. The Tribunal noted that country information referred to continued growth which suggests that there are public discussions about religion; he agreed. When asking if he wanted to say anything further about the Tribunal’s concerns, he said that he had already answered this once and he would like to explain more in writing. His responses have been taken into account.
FINDINGS AND REASONS
[2] DFAT Reports
Country of reference
The applicant provided his passport issued by the Chinese authorities. The Tribunal accepts that the applicant is a Chinese national and that the appropriate country of reference for the assessment of his refugee claims and complementary protection claims, is China.
Credibility
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. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 examiner 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).
Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s inconsistent and changing evidence, as well as evidence which appeared not credible. It was concerned with his credibility and the veracity of his claims. The Tribunal sets out its reasons below.
Firstly, the Tribunal had a number of concerns about the applicant’s responses in the Compliance Interview, which were inconsistent with his subsequent protection visa claims.
[In] May 2014 according to the record of the Compliance Interview, the applicant was interviewed by the Department’s Compliance team after he was discovered to be unlawfully present in Australia. During that interview he was recorded as having given the following information in answer to questions asked by the officer:
· When asked whether he had any debt in Australia or elsewhere he said “no”. The Tribunal was concerned that this was inconsistent with his claim that he has been unable to return to China since 2010 because his father owed a significant debt and his father had signed an agreement stating if he is unable to pay the debt, then the applicant is responsible for the debt, and further that the dangerous casino owner considers the applicnt responsible for this significant, long-outstanding debt. The applicant’s response at the Compliance Interview indicated however that neither he nor his father owe any debt in China, whether to a casino owner or anyone else, as a result of gambling or for any other reason.
· When asked whether there were any reasons why he cannot return to China, he responded “no”, and “I can return to China”. When asked whether he was willing to depart Australia, he responded “yes”, and “if I must leave I will”. When asked if he wished the Department to purchase a ticket for him, he responded “yes”. The Tribunal was concerned that this was inconsistent with his claim that he has been unable to return to China since 2010 because he faced persecution from the casino owner and others for not repaying his father’s debt. His responses at the Compliance Interview indicated that he could return to China and that his father does not owe any money in China to the casino owner or anyone else, for gambling or any other reason.

This had been raised by the delegate as a concern. The applicant responded in writing to the delegate’s concerns that when he was questioned in May 2014, he did not mention that he was afraid of persecution and he agreed that he would leave Australia, without explaining that he had any real reasons for fearing to return to China because of physical injury. He was scared when the officers arrived at about 8 PM at home, he feared he would be sent to a refugee camp and then repatriated. He said he couldn’t escape anyhow. He was not sure whether he should state the situation of his family to the officers and tell them about his intention to apply for a protection visa. When he was asked whether he would leave if he had to leave Australia, he considered that meant that he would have to leave anyhow, so that is why he said he would leave if he must. The Tribunal has considered these responses; however it does not find them persuasive. It also notes that his response indicates that, at the time of the compliance officers’ visit to his home he was intending to apply for a protection visa. This, however, is inconsistent with his later claim that the reason for his delay lodging a protection visa application was because he only found out that he could do so when he spoke to his current agent, after the Compliance Interview. The Tribunal considers that this undermines his credibility and his claims.
The Tribunal raised this at hearing and the applicant sought to wait to respond. In his response to the Tribunal’s s.424A letter, he said that he was scared when many immigration officers came to his house, he thought he would be sent to a refugee camp, and he thought that he was being told he had to leave Australia, so this is why he gave the answers. The Tribunal notes he has not explained why he said he had no debt, if he in fact did owe a debt. The Tribunal has considered his explanation that he was scared, however it also notes that he is an intelligent and articulate graduate student, who had been living in Australia for eight years. The Tribunal is not prepared to accept the claimed reasons for his responses to the questions. The Tribunal considers that his responses at the Compliance Interview undermine his claims and credibility.
Secondly, the Tribunal was concerned that there appeared to be inconsistencies between the applicant’s evidence and the contents of the criminal judgment (which he produced in Mandarin and in English) concerning some details of his claims. For example:
· The criminal judgment referred to [Mr A] stating that in 2004, the applicant’s father had previously borrowed money from [Mr A] and never repaid it. However when asked by the Tribunal if his father had ever owed money to [Mr A], he said no, his father only ever owed money to the casino. When the Tribunal put the criminal judgment to the applicant[3] he said he cannot recall being told about this.
· The applicant told the Tribunal that his father owed [number]RMB to the casino; he wanted to pay back the money so that he could then continue to gamble. The Tribunal put to the applicant that it would think there would be other reasons why his father wanted to pay back the money, for example so that he could save his own life, or protect his family members’ lives. The applicant essentially said that the only purpose of his father having any money was so that he could continue to gamble. The Tribunal put to the applicant that this was inconsistent with the criminal judgment which indicated that his father had used the ransom money received to buy gold ornaments[4]. In response the applicant agreed that this was stated in the criminal judgment but said he has not asked about it so he doesn’t know.
[3] Page 72
[4] Page 74R
Further, when the Tribunal asked for the names of some of the other people arrested with his father (which are set out in the criminal judgment), the applicant said he did not know. The Tribunal put to him that it would think that he would have been interested in knowing who these people were. In response he said he only cares about his father and they don’t have any relationship with him.
The Tribunal considers that if the criminal judgment was a genuine document which represented his father’s situation, and which was a reason why the applicant may be harmed or killed if he returns to China, he would have been interested in, and would have known more of the details in that document including those asked by the Tribunal. The Tribunal considers that the applicant’s evidence undermines his credibility.
Further, the claim in the criminal judgment that [Mr A] had been owed money from the father for a long time and had never been repaid appeared inconsistent with the applicant’s claim that [Mr A] assured the gangsters that his father was a person who would repay [number]AUD if they continued to let him gamble at the casino. The Tribunal put to the applicant that it seemed unlikely that [Mr A] would assure the gangsters that his father was good for the money if [Mr A] was already aware that his father was a person who did not repay debts; why would [Mr A] put his reputation on the line; the casino could go after [Mr A] for giving a false assurance. The applicant said [Mr A] is with the casino and wanted to punish his father and the casino doesn’t care if they don’t get their money back. The Tribunal considered it to be highly unlikely that the casino did not care about getting their money back and when it noted this concern, the applicant then changed his evidence and said they do care if they get their money back. The Tribunal considers that his changing evidence undermines his credibility.
Thirdly, the Tribunal considers the applicant’s claims about the casino’s lack of attempt to enforce payment of the debt to be inconsistent for the casino’s claimed desire for the return of the money. The applicant said that the casino has been owed [number] RMB ($[number]) since the end of May 2010. He claimed that when the first debt was owed (of [number]RMB), the casino had sent people to harass his [sibling] and mother, they had been violent and smashed furniture and threatened his family members. The casino had subsequently been repaid the [number]RMB. He told the Tribunal that if you can’t pay the money back, then they will go after family members and persecute you and force you to sell things and pay the money back. He feared that the casino would come after the [sibling] and his mother.
However, the Tribunal noted that his [sibling] and mother remained in China, and they remained vulnerable to the casino owners, whom he claimed have connections with underworld figures and the authorities, and that there was corruption. The Tribunal put to the applicant that the debt had been outstanding for so long (six years), that it would think that the underworld figures would have made serious attempts to recover their money, including coming after the [sibling] or the mother. The applicant responded that the [sibling] has moved provinces. The Tribunal noted his evidence that his [sibling] changed [his/her] hukou (household registration) through official channels when [he/she] moved to work in a [company] in Henan Province. Given his claims of corruption and the underworld’s connection with the authorities, the Tribunal noted that his [sibling] could have been easily traced and targeted in order to recoup their money. In response, the applicant said that [the sibling] got married and cut off [relations] with [the] father. The Tribunal does not consider that this explains why the underworld figures have not come after his [sibling] to seek repayment of the debt. The Tribunal was further concerned because the applicant claimed that the casino believed that the applicant, in Australia, had access to money, thus the casino could have targeted the [sibling] to make the applicant pay the debt.
Further, his mother also remained in China. He said that she had managed to move and find a job and accommodation. He told the Tribunal that when there was a divorce in 2008, there was a property settlement, with the father getting all the debts, and the mother getting all the properties. The Tribunal asked what the mother received and he said she received the house on the land, as well as rural land as well as savings. He claimed he had no idea of how much savings she had. The Tribunal put to the applicant that if his life, and his family member’s lives were at risk from these underworld figures, it did not understand why the mother did not sell her land and use the proceeds/ or her savings towards paying off the debt. In response the applicant said that they have not located the [sibling] or the mother, and the mother moved to another province. The Tribunal said it did not understand why the casino operators did not take possession of her property and land in order to recoup their money. He said that they would have to take legal proceedings to do so. The Tribunal noted his claims of corruption (and that the casino was illegal), and suggested that they would not need to take legal proceedings. In response he said the property ownership is with his mother and the casino operators cannot find the certificate. The Tribunal considers it to be highly unlikely that the casino owners have made no real attempt to obtain their money even after six years, and that this undermines his credibility and his claims.
Fourthly, the Tribunal was concerned with inconsistencies in evidence about claimed family matters which formed the background of the claims about his father and the gambling. For example:
Parents’ divorce: In his protection visa application forms which he had signed in May 2014, he claimed that his parents were married (as opposed to the other options of separated, divorced, widowed, engaged, de facto, or never married or in a de facto relationship). This however was inconsistent with his statement where he claimed that they were divorced as a result of his father’s gambling. The Tribunal noted that he had told the Tribunal that he had read through his documents and they were true and correct. Initially he said to the Tribunal that he cannot recall signing it; when the Tribunal showed him his signature, he then acknowledged it was his signature, and then said that he may not have read the question right and that he had previously provided their divorce certificate; the divorce occurred when he was back in China (December 2008). The applicant said to the Tribunal that his English level was not very good; the Tribunal put to him that he had studied and completed a Bachelor [degree]; it would find it difficult to accept that he was not able to understand these words on the application form. The Tribunal does not find his explanation to be persuasive, and considers that his application form undermines his claim that his parents’ divorced as a consequence of the father’s gambling.
Father’s financial and work background: The Tribunal was concerned that the applicant gave inconsistent evidence about his father’s financial and work background. In this regard, in April 2006, the applicant provided documents in support of his offshore student visa application. These documents showed that:
· From May 1998 until June 2000 his father was the manager of a company called [Company 1]. These documents however are inconsistent with the applicat’s evidence to the Tribunal that this was the company that his father actually owned (rather than managed) from about 2004 or 2005 until 2010 (a period of about 5 to 6 years) when it was shut down because of his father’s gambling.
· From March 2004 the source of his father’s income was from a company that his father owned, called [Company 2]. The applicant however said that his father’s company was called [Company 3]. Further, in terms of the timing, these documents were inconsistent with his evidence that from 2004 or 2005 until 2010 his father owned [Company 1].
This was discussed at the hearing, and the Tribunal showed him the documents in the offshore student visa file. In response the applicant said he was a child and he was studying and he didn’t know much about the companies; he only knew one company (with the name printed on the car).
In his post-hearing s.424A response, he said that when his father started his business, he was still young and at school. He recalled his father’s van had on it [Company 3]. His parents didn’t tell him about the condition of the business. The applicant did not get distracted by learning the details of his father’s company and also he did not, and does not, understand the difference between the owner or the general manager of a company. It was also suggested that the offshore agent thought his father should be referred to as the general manager of the company to assist the visa application.
The Tribunal has considered the explanations, but it finds it highly unlikely that the applicant, having completed [a] degree, does not understand the difference between being an owner or a general manager of a company. Further, it is the applicant’s claim that he became involved in his father’s affairs because of the gambling; in the circumstances, the Tribunal considers that he would have given evidence relatively consistent with the evidence in the offshore file about his father’s companies. The Tribunal considers that this undermines his credibility and his claims about his father’s financial and work background and the loss of his company through gambling.
Fifthly, the Tribunal was concerned that the applicant’s migration history, and his delay in claiming protection until after he had been detained, was inconsistent with his claim that he has held a genuine fear of harm since 2010 stemming from his father’s gambling debts.
According to the delegate’s decision record, the applicant’s migration history includes the following:
·The applicant first arrived in Australia [in] August 2006 as the holder of a student visa.
·He last studied in October 2009 and his student visa ceased [in] December 2009.
·He applied for a further student visa [in] October 2009. That application was refused [in] April 2010, and his bridging visa ceased [in] June 2010.
·He remained unlawfully in Australia from [June] 2010 until October 2013.
·He was renotified of the student visa refusal by the Department and granted a bridging visa which ceased [in] December 2013.
·He remained in Australia unlawfully until he was located by a [State] Compliance team [in] May 2014.
·He lodged his protection visa application [in] May 2014.
The Tribunal discussed its concerns at hearing with his delay in lodging a protection visa, given his claim to fear harm arose in 2010. The applicant told the Tribunal that he sought migration advice in 2010, 2011 and 2012, and as a result of this he put all his efforts into being able to lodge a spouse visa. However, he said that in 2013 his relationship broke down, and so everything was falling apart. The Tribunal noted that everything was falling apart, and he was faced with being sent back to China where he faced persecution, so it did not understand why he did not again go and see an agent for advice. He said because he had been previously informed that he did not meet the requirements. The Tribunal put to him his claim that he had obtained advice on a number of occasions (2010, 2011, and 2012); it did not understand why, when everything was falling apart, he did not go and see one in 2013. In response, he said he put all his attention on a spouse visa.
In his response to the Tribunal’s s.424A letter, he said that he found out about what happened to his family in September 2008. He became very depressed and this affected his ability to study. When he telephoned his father in May 2010, his father said the previous [debt] was repaid, but there was a new [debt] owed to the gambling house which he was not able to repay. His father told him not to go back and if he did go back he would be forced to repay the gambling debt using very cruel measures, leading to serious harm. He consulted several migration agents who told him that he couldn’t lodge substantive visas other than a spouse visa or refugee. All the agents told him he couldn’t lodge a protection visa but he could lodge a spouse visa. He fortunately met a girl who he told about his situation, and she accepted this but their relationship ended in July 2013 when she went back to China. He met another girl in September 2013 and the same situation occurred and she agreed to start a relationship with him. When he was found by the Compliance Department, he consulted his current migration agent who told him he could not lodge a spouse visa but he could lodge a protection visa (as a result of complementary protection introduced in March 2012). He did not consult any migration agents between 2012 and May 2014 as he did not want to spend the money.
The Tribunal is not prepared to accept the explanations. It is not persuaded as to why the applicant did not seek advice when “everything was falling apart” given his awareness that he could obtain advice (and his past actions in doing so). The Tribunal considers that his failure to seek advice in the claimed circumstances after the breakdown of his relationship in 2013 undermines his credibility. The Tribunal is not prepared to accept that he told various agents in 2010, 2011, and 2012 that he was at risk of being subjected to serious harm and that he was advised not to apply for protection. The Tribunal considers that if he had a genuine fear stemming from his father’s gambling debts, he would have applied for protection earlier. The Tribunal considers that his preparedness to remain unlawfully in Australia, and his delay in claiming protection from 2010 until after he was detained in 2014, undermines his credibility and his claims.
Sixthly, the Tribunal was concerned that the applicant may have shown a pattern of behaviour towards immigration officials and the Australian immigration system in order to obtain a desired immigration outcome, namely to remain in Australia. In this regard, the Tribunal noted:
·     According to Departmental records (prior to the renotification of the refusal of his student visa application) he was unlawfully in Australia from [June] 2010 until October 2013 and again from [December] 2013 until [May] 2014.
·     According to Departmental records he completed a Bachelor [degree] in October 2009.
·     In his further student visa application made [in] October 2009 he stated he intended to study a [Diploma] which is a lesser qualification in the same area to the degree he had already completed.
·     In his interview with the Department Compliance team [in] May 2015 he stated he was working for cash in hand.
·     In his interview with the Department Compliance team [in] May 2014 he stated he was aware that his student visa application had been refused in 2010, he had applied for a “temporary residence visa”, and at the time when he was located by Compliance officers he “thought” he had a bridging visa as a result of the lodgement of his “temporary residence visa” application.
·     However, Departmental records show that [in] May 2014 he had not lodged a “temporary residence visa application” after his student visa was refused and his bridging visa ceased. He was granted a Bridging visa [in] October 2013 which ceased [in] December 2013, but thereafter he remained unlawfully in Australia until located by Compliance [in] May 2014.
At hearing, the applicant said that he needed to pass an IELTS exam and he needed to find a way to extend his visa. In his response to the Tribunal’s s.424A letter, he said he applied for the [Diploma] course because it would concentrate on practice which would be helpful for his employment in the future and he could use this as a chance to improve his English. Concerning the “temporary residence visa application”, he claims that a friend told him he could do it, and he submitted this after his student visa application was rejected [in] April 2010. He does not know why the Department did not receive his “temporary residence visa application”, but because he moved addresses shortly thereafter and did not tell the Department about his address change, he is not sure what happened. He also noted that he had a bridging visa during this period (however as put to him in the s.424A letter, this bridging visa had only been issued consequent upon the re-notification of his student visa refusal).

The Tribunal is not prepared to accept the applicant’s assertion that the reason he was applying for a [Diploma] course after having already completed a Degree in the subject was because it would give him practical experience, especially as he claimed in his email response to the delegate that the reason why he applied for his Diploma was because he didn’t have enough points accumulated to obtain permanent residence[5]. Concerning his claim about needing to do an IELTS exam and making a “temporary residence visa application”, he has not suggested that he has made any attempt to find out from the Department as to what happened with his claimed “temporary residence visa application”. Further, his claim to have made such a visa application in 2010 (which, as far as he knew, was outstanding), is inconsistent with his claim to have consulted migration agents in 2010, 2011 and 2012 and to have obtained advice that he could only remain on the basis of a spouse visa or a protection visa. The Tribunal considers that if he had sought immigration advice in 2010, 2011 and 2012, then it would have been reasonable for him to discuss his “temporary residence visa application” with such agents, and to have then made inquiries with the Department about the status of such application. The Tribunal considers that this undermines his credibility and his claim that he had lodged an application in 2010 which was still pending when he was detained in May 2014.
[5] DF104R
As put to the applicant, it seems that the applicant was prepared to take disingenuous actions like unnecessary study, act unlawfully like overstaying his visa (being aware that his visa had ceased in June 2010 and that he was aware that he was unlawfully present with no work rights until [October] 2013 when he was renotified of the refusal of his student visa application), and be untruthful in particular to immigration officials (about a pending application that it appears did not exist) to achieve his desired immigration outcome, that is, to stay in Australia. The Tribunal considers that this undermines his credibility.
Seventhly, the Tribunal is concerned about inconsistent/changing/ not credible evidence from the applicant and two of his witnesses in relation to the claimed past events in China and the claim that such events will lead the applicant to suffer serious harm upon his return to China.
The witness [Mr D]: The witness [Mr D] claimed to know the applicant so well that he could assert that the applicant is a genuine Christian and that his Christian faith and activities were not carried out for the purposes of his protection visa application. However, this witness also claimed that the applicant had no reason to remain in Australia other than because he is a Christian. He also said that he did not know anything about the applicant’s background in China.
The Tribunal put to the applicant that it was difficult to understand why he has not spoken about his past in his dealings with [Mr D], and why [Mr D] would say that there was no reason for the applicant to not return to China other than religion. At hearing, the applicant said this was because [Mr D] is very busy and barely saw the applicant other than at church.
After the hearing however, both the witness and the applicant provided evidence which was inconsistent with the evidence at hearing. When the applicant provided his response to this information as put in the s.424A letter, the applicant claimed that he had told the witness [Mr D] about what had happened to him, just one week prior to [Mr D]’s attendance at the hearing. The Tribunal considers that if this was true, [Mr D] would not have said that he did not know anything about the applicant’s background in China, and that the applicant had no other reason to remain in Australia.
Further, the witness provided a post hearing letter where he said that the applicant had shared with him briefly information about what had happened to the applicant because of his father’s gambling addiction and the witness was convinced that the applicant had gone through a great deal of suffering. However, because he has not been to the hometown and doesn’t know the people concerned, he did not think it was appropriate to testify. The Tribunal does not find this response to be persuasive, given his evidence that he did not know anything about the applicant’s background, and his evidence that the applicant had no other reason to stay in Australia. The Tribunal considers that if he had been told about the applicant’s great suffering and his father’s problems in China, then the witness would not have said that the applicant had no other reason to remain, and that he did not know anything about the applicant’s background in China.
The Tribunal considers that the changing evidence about the witness’s knowledge of the applicant’s reasons to fear harm in China undermines the credibility of both the applicant and the witness [Mr D]. It also considers that this undermines the witness’s claimed opinion that the applicant’s Christian faith and activities are genuine.
The witness [Ms B]: [Ms B] told the Tribunal that she had read the applicant’s statement containing his protection claims that he fears serious and significant harm because of his father’s gambling activities, and she was aware that his father was in gaol and may have broken the law. She said, however, that she thinks the real reason why he wants to stay in Australia is because of his Christian religion, and she only attended the hearing to support that claim.
The Tribunal was concerned that if [Ms B] was the applicant’s fiancé, who claims to know him well, and if his claims to face serious, significant harm in China as a result of past events in China were true, then she would not have minimised the importance of such harm and would not have come to the hearing only to support his Christian claims. At the hearing when this was raised, the applicant did not seek to comment.
However, in the post hearing correspondence, [Ms B] said that the applicant had told her about his family background and what transpired to him in the past and she has no doubt that this had occurred, but she didn’t go through the ordeal with him and so was not able to testify in that regard, which is why she only supported his Christian claims. The Tribunal does not find this explanation to be persuasive, given her acknowledgement that he faced serious harm in China if he returned as a result of his father’s gambling/debt problems.
The Tribunal considers that this undermines her credibility, and the applicant’s claims about the past events in China and his future fears on that basis. It also considers that this undermines her claim to know the applicant well and that he is a genuine Christian.
Further, the Tribunal had concerns that the applicant was prepared to undertake his Christian and other activities in Australia, and enter into a relationship with his fiancée ([Ms B]) also merely to remain in Australia. Concerning his relationship with [Ms B], the Tribunal notes that he gave evidence that while unlawfully present in Australia, he was looking for a girl who was a permanent resident so he could have a relationship in order to stay in Australia; and he had done so on two occasions prior to his relationship with [Ms B].
[Ms B] however told the Tribunal that he was not the type of person who would look for a girl who was a permanent resident to have a relationship with in order to stay in Australia; she knows him well, and he would not do this. She also claimed that, as she knows him well, his Christian faith and activities are genuine, and that he is not the type of person who would claim to be Christian merely to stay in Australia.
The Tribunal put to the applicant that her evidence was inconsistent with his evidence. At the hearing he did not seek to respond to this. In the s.424A response, he said that none of his relationships were without love, he never intentionally found a girl with permanent residence to start a relationship and stay in Australia through marriage. This however is inconsistent with his evidence to the Tribunal that he was focusing on obtaining a spouse visa during the period he was unlawful and that he thought this was his only option to stay in Australia.
Post hearing, the applicant provided a letter from [an association], attesting that [Ms B] had been working there as [an occupation]; her student card from the [University]; her academic transcript, and it was asserted that she is a pious Christian who would not give evidence on behalf of the applicant unless she believed it was true. It was submitted that she is a well-educated and intelligent undergraduate, and that her testimony to the Tribunal is true and correct. In her post hearing letter, she said that she is aware that some people become involved in commercial marriages in order to solve the immigration status but this is not the situation with her relationship. She is intelligent and bright, and she would not be misled and her family would not let her be misled. While the Tribunal is prepared to accept that she may be bright and intelligent, the Tribunal has not persuaded by her responses, in light of its other concerns.
The Tribunal considers that the above indicates both that [Ms B] does not know the applicant well as claimed, and her evidence about whether he is a genuine Christian may not be reliable; further the applicant may not be in a genuine relationship with [Ms B], and he only intends to marry her to stay in Australia should the decision under review be affirmed.
Eighthly, the Tribunal was concerned about the applicant’s claim that that as a real Christian, it is his duty to evangelise, and that he has done so in Australia by sharing his experiences about Christianity; he evangelises and encourages other people to come to church.
However, the evidence of the witnesses [Mr D] and Pastor [C], who claimed that they knew him well enough to confirm that he has genuinely adapted to Christianity, did not refer to the applicant’s important evangelising role. When asked about his involvement in Christianity:
· [Mr D] at first appeared to recite his statement but then said that the applicant’s public evangelisation consisted of handing out pamphlets at a [festival]. This however is inconsistent with the applicant’s claimed evangelisation.
· Pastor [C] referred to the applicant’s activities (attending Sunday service and Friday night fellowship and volunteering to be a youth group leader) but he did not mention that the applicant was involved in any public proselytising. The Tribunal was concerned that this undermined the applicant’s claim that he proselytises in public in various ways and would do so if he returned to China. The Tribunal considered that if he proselytised as claimed, Pastor [C] would have mentioned that in his evidence.
This was put at hearing and in the Tribunal’s s.424A letter. It was suggested that these witnesses’ evidence did not indicate that he was really involved in this claimed duty of evangelising. The applicant responded that [Mr D] is very busy; he seldom sees the applicant unless he sees him in church, and he only knows about his evangelisation at the [Festival]. Pastor [C] is an assistant pastor and did not come to the church for a long period; the applicant normally talks to [another Pastor]’s wife. The witnesses are occupied by their own work and study and their knowledge of him is limited to what he does at the church. When the applicant shares his Christian belief and encourages others to come to the church, he does so privately. Pastor [C] was only at the church for a few months and so it is normal if he does not know that the applicant preaches gospels. However, because Pastor [C] supported him, then this is persuasive evidence as Pastor [C] is an experienced pastor.
In [Mr D's] post hearing letter, he said that he doesn’t have any doubt that the applicant has been evangelising in his spare time as they don’t have to report to him about how they have made people aware of the gospel, and proselytising is the moral obligation for all Christians. The Tribunal considers that if, in this church, proselytising is the moral obligation for all Christians, then the witness would not have given evidence that the only public proselytization done by the applicant was handing out pamphlets at festivals.
The Tribunal considers that the evidence given by these witnesses at hearing indicated that the applicant did not engage in proselytisation (other than on one occasion handing out pamphlets at a [festival]). The Tribunal considers that if the applicant was a regular and committed evangeliser and proselytiser, then these witnesses would have been aware of this and would have told the Tribunal that he engages in this activity (which he claims he does and is his duty as a genuine Christian). The Tribunal considers that their evidence undermines his claim to undertake public proselytising and his credibility.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
The agent said during the hearing that he thought the applicant was nervous and he was not sure the applicant understood the questions sometimes. The Tribunal noted that it had explained to him that if he did not understand a question he should say this and it would be repeated/ rephrased. He was again reminded of this. The applicant said that he did not think that he had misunderstood questions. The Tribunal is satisfied that the applicant understood the proceedings and was able to give evidence and present arguments. Further, while the Tribunal accepts that a person can be nervous in such settings, the Tribunal is not prepared to accept that this can explain the difficulties with his claims and evidence.
Corroborative documents
Relating to family and background: The Tribunal noted that the applicant produced a number of documents to the Department including: documents showing his family details (his mother, father and his sibling); the divorce certificate of his mother and father; and “criminal judgment of order”. In light of its credibility concerns and given the availability of false documents[6] from China (as put to the applicant), the Tribunal is not prepared to place any weight on these documents.
[6] DFAT Country Report, paragraph 5.26:
Certificates and Photographs relating to Christianity (and the witness [Ms B]) provided to the Tribunal: The Tribunal has considered the certificates of baptism ([May] 2016) and the certificate of confirmation ([December] 2016), as well as photographs produced by the applicant, showing him at church, being baptised, reading a Bible verse and with a group of people. The Tribunal accepts that witness [Ms B] (and her mother) were in attendance at some of the gatherings. The Tribunal is prepared to accept that the events in the photographs occurred, however it is not prepared to accept that this supports the applicant’s claims that his motivation or activities were or are genuine.
Correspondence and oral evidence relating to Christianity provided to the Tribunal:
Rev [E]: The Tribunal has considered a letter from by Rev [E], Pastor of the [Suburb 1] Anglican Church dated [February] 2017 which stated that he met the applicant in February 2016; he attended two courses after which the Pastor interviewed him and found his faith to be sound and genuine; he attends classes and services and church activities regularly, and that he proactively participates in serving during Sunday service as well as various outreach and “evangelistic events with great enthusiasm”. No details of such events were provided. He considers that he can be a leader and has enrolled him in a “Discipleship Training course”. A further letter was provided after hearing dated [March] 2017. This stated that the applicant had confided his family misfortune to the Reverend [in] September 2016. He and his girlfriend had attended at the Reverend’s house that evening for premarital counselling and the Reverend had advised the applicant to tell the truth to the girlfriend’s parents.
The Tribunal put to the applicant that although witnesses (oral as well as those who have provided statements) may believe that he is genuine, the Tribunal has to make a finding on this issue, and it has to weigh up all of the evidence in considering whether or not the applicant’s involvement in Christianity is genuine. The Tribunal has considered the correspondence from the Reverend, and although it is prepared to accept that he may believe the applicant’s involvement is genuine, this does not overcome the Tribunal’s concerns. Further, the Reverend has not explained what he meant in discussing the applicant’s “family misfortune”, and even if the applicant had told the Reverend, in September 2016 after his protection visa application had been refused, circumstances which are similar to those claimed by the applicant in these proceedings, the Tribunal is not prepared to consider this to be corroborative evidence of events which occurred in China.
Pastor [C]: Prior to hearing, Pastor [C] provided a letter stating he had met the applicant in about mid-2016 and he considers him to be of good character and having regard to his activities in the congregation, he believes his faith is genuine. At the hearing, Pastor [C] said that because the applicant is eager to learn and willing to devote time to Christianity, he therefore believes that the applicant is genuine. While the Tribunal is prepared to accept that Pastor [C] considers him to be genuine, this does not overcome the Tribunal’s concerns.
Pastor [C] also said that he did not know anything about the applicant’s background in China (other than having read his statement) and he only attended the hearing to support the applicant’s Christian claims. After hearing, Pastor [C] provided a letter saying that the information he got about the applicant’s background and situation in China was from the applicant himself. However, he believes, based on the applicant’s good character, that this must be genuine. In the circumstances, the Tribunal is not prepared to place any weight on what the applicant told to Pastor [C].
[Mr D]: prior to hearing, [Mr D], a member of the [Suburb 1] Anglican Church, provided a letter confirming the applicant’s attendance at church, courses, Bible study and baptism. When young people come to the church, he lets the applicant communicate with them. He is a genuine Christian. China persecuted Christians who are enthusiastic in preaching gospel, and as the applicant is enthusiastic in preaching gospel and pursuing the Christian belief, he is concerned that he will be persecuted if he returns to China.
Further, when the Tribunal asked the witness [Mr D] why, given the applicant’s immigration background and his actions to seek to remain in Australia, he considers the applicant to be a genuine Christian, and to have been genuine in his activities, his evidence could be summarised as saying that the applicant has pursued his gospel but also he has shared his experiences about God and he doesn’t think that these things can be faked. In his post hearing letter he said he is very busy and he would not have supported the applicant if he did not believe he was true.
In the post hearing letter, as noted above, the witness [Mr D], changed his evidence from the time of the hearing to the time of writing a post hearing letter, to say that he was aware of the applicant’s situation in China in relation to his father and the problems. He also said that although he was not aware that the applicant had evangelised other than at the [festival], he wouldn’t have any doubt that he has been evangelising in his spare time. He also claimed that he is now studying full-time at a theology college and is a person with discernment and sound judgement, and he can tell who is a true follower of Christ and who is not. This is why he has supported the applicant. Given the witness’s changing evidence, the Tribunal is not prepared to place any weight on his assertions about the applicant and the claimed genuine nature of the applicant’s religious involvement.

[Ms B]: prior to the hearing, she provided a letter stating that she has been involved in the church for six years and has trained to be part of the leadership. She met the applicant in February 2016 when he came to the church and they are now engaged. She confirmed that he has attended courses, services, and camp, and said it was a miracle which occurred that they could be together. He actively engaged in proselytising people through the gospel, and handed out pamphlets at the [festival] and also at the station and shopping more. She has observed his commitment to Christian practice and considers he is an enthusiastic follower of Christ and it would be risky for him to return to China.
As noted above, the Tribunal was concerned that [Ms B] claimed to be aware of his problems, she was only there to support his Christianity claims, which the Tribunal considered to undermine the applicant’s claims about past harm and events in China and her credibility. After the hearing, she wrote that she did not testify about what happened in China because she did not go through the ordeal with him; she attended the hearing and supports him because he is genuine and the relationship is genuine.
It was argued that the witnesses are intelligent people who would not be fooled by the applicant. While the Tribunal is prepared to accept that they may be intelligent people, this does not mean that what the applicant has told them is true. Further, it was asserted that because the Pastor is experienced, this means that his belief in the applicant is true.
Given the Tribunal’s concerns with the evidence, and with some of the corroborative evidence, the Tribunal is not prepared to place any weight on the assertions in the oral and written evidence that the applicant’s claims of past harm and events in China in relation to his father are true.
Although the Tribunal has significant doubts with the credibility of the witnesses [Mr D] and [Ms B], it accepts that these witnesses, as well as the pastor, (and the Reverend) are Christians themselves, and the Tribunal understands their desire to believe that people professing interest in the church and Christianity are genuinely so interested. The Tribunal is prepared to accept that these witnesses may believe the applicant’s claim to be a genuine Christian who came to Christianity in February 2016, and that the witnesses may believe that he has entered into his relationship with the witnesses for genuine reasons. However, the testimony of the witnesses does not overcome the Tribunal’s concerns referred to above.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that he is not a witness of truth, and that he has fabricated claims in order to allow him to stay in Australia, and that he is prepared to make any claim in order to remain in Australia.
Findings on the applicant’s claims
On the basis of the adverse credibility finding, the Tribunal does not accept his father’s claimed downfall, his father’s financial and work background or that his company shut down because of his gambling, or any of the claims flowing from this. It does not accept that his father was a gambler nor that he lost much of his assets because of gambling; that the applicant offered to pay his father’s gambling debts nor that the applicant or his father owed or owes any money to anyone in China. It does not accept that the applicant has been unable to return to China since 2010 because his father owed significant debt (with accumulating interest) to a casino owner for which he was also responsible or considered responsible. It does not accept that his father was involved in the kidnapping, assault, extortion or harm of anyone; that his father was charged and convicted and is in prison. It does not accept his claims that if he returns, he will be tortured in different ways to cause severe physical injury to him so as to force him to pay the debt; that [Mr A] will seek revenge upon him for having been kidnapped and beaten by his father and will use his power to persecute the applicant as well. It also does not accept that the applicant faces retaliation from creditors or loan sharks or being kidnapped, denied employment, being locked up and placed in a psychiatric hospital, all of which claims are based on the claims relating to his father, [Mr A], the casino, the conviction and the authorities (the Tribunal does not accept these claims). The Tribunal does not accept that anyone has had, or has any adverse interest in the applicant or his family members in China as result of his father’s activities or for any other reason (financial or otherwise).
The Tribunal is not satisfied that the applicant wanted to apply for a [Diploma], after already completing a Bachelor [Degree], is true. The Tribunal does not accept that the applicant was making a genuine application for student visa after he completed his degree. The Tribunal accepts that the applicant completed his Bachelor [Degree] in October 2009, and that he has not studied since that time. At the hearing, the Tribunal put to the applicant that it was concerned that his claims relating to issue with his father may have been made up, and that this was not the reason why he did not return to China earlier. On the basis of the adverse credibility finding, the Tribunal finds that the applicant remained in Australia, without holding a genuine fear of persecution or harm in China, since he finished his degree in 2009, and that he has made up his claims of events and fears since that time in order to stay in Australia. The Tribunal does not accept that the applicant was in fear of harm in China and that he sought advice from agents/ solicitors on this basis.
The Tribunal finds that the applicant told the compliance officers, when he was discovered unlawfully present in Australia, that he could return to China, because he was aware that he faced no real chance of serious harm or real risk of significant harm in China.
For the reasons set out in this decision, the Tribunal finds that the applicant has shown a pattern of behaviour towards immigration officials and the Australian immigration system that indicates he will take disingenuous actions like unnecessary study, act unlawfully like overstaying his visa, and be untruthful in particular to immigration officials to achieve his desired immigration outcome, that is, to stay in Australia.
The Tribunal accepts that he wanted to remain in Australia and believed that a spouse visa was the best way, and finds that he has engaged in relationships with three Australian permanent residents/citizens to date in order to obtain a favourable migration outcome.e
Involvement in Christianity: The applicant did not claim to have had any religious involvement in China; the Tribunal so finds. He only claimed to have started his involvement in February 2016. The Tribunal accepts that the applicant was not involved in religion prior to February 2016.
The Tribunal put to the applicant at hearing that it was concerned that he became involved in Christianity only after his protection visa claims were refused by the delegate. As put to the applicant pursuant to s.424A, the Tribunal considered that this also indicated that his Christian and other activities in Australia, including his relationship with his fiancée [Ms B], a Christian, were undertaken also merely to remain in Australia. The Tribunal put to the applicant that it had concerns that his claimed devotion to Christianity and his activities and his relationship with his girlfriend may have been undertaken in order to strengthen his refugee claims, and if it found this, it would have to disregard his Australian activities in considering his refugee claims. Further, it would consider that if he is not genuine, he would not undertake any Christian activities in China, and would not face harm for that reason. Further, it would find when considering the complementary protection criteria that there is no reason for the Chinese authorities to be aware of his activities in Australia (the Tribunal notes this was not a claim made by the applicant). In response, the applicant said that his relationship and his religion is genuine and it is blessed by God. He is very obedient to God. He wants to express the gospel to every human being and to be saved. The applicant told the Tribunal that the establishment of relationship with girlfriend has helped him to know more about Christianity and he wants to do better evangelical activities.
The Tribunal finds that the applicant became involved in Christianity and carried out Christian activities after his claims had been refused by the delegate, solely in order to strengthen his refugee claims. It does not accept his assertion that he became involved for reasons of being upset or spiritually empty.
Thus, while the Tribunal accepts that the applicant has learned about Christianity; been baptised and confirmed, and has engaged in relationships at and through the church, and has attended courses and shown to others an interest in Christianity and in becoming involved in Christian activities, as well as some minor proselytising, the Tribunal is not satisfied that he has done any of his activities for genuine reasons, but instead that these are steps he has taken in order to remain in Australia. The Tribunal finds that he has engaged and continues to engage in such conduct for the sole purpose of strengthening his refugee claims.
The Tribunal does not accept that the applicant will engage in Christian activities in China because it has found that he is not a genuine Christian. It finds that he is prepared to take any action to obtain permanent residence in Australia.
In considering his refugee claims, the Tribunal finds that he has not undertaken Christian activities in China, it disregards his Christian involvement and activities in Australia, and it finds there is no reason to consider that he faces a real chance of serious harm for being involved in Christian activities or for being so imputed in China.
In considering his complementary protection claims, the Tribunal does not disregard his activities in Australia. It finds that he has not undertaken Christian activities in China, and that although he has undertaken Christian activities in Australia, he has done so in order to strengthen his claims, not because of a genuine interest in Christianity. It was not suggested that his activities in Australia would be known to the Chinese authorities, and there is no evidence before the Tribunal to suggest that the Chinese authorities are aware that he has engaged in Christian activities in Australia. The Tribunal considered there is no reason to consider that he faces a real risk of being considered as involved in Christianity, nor that he will be involved in Christian activities in China.
The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of religion (imputed or otherwise). The Tribunal considers there is no basis to find that the applicant would face any harm in China on the basis of religion. The Tribunal is not satisfied that there is a real chance a risk that the applicant may be of adverse interest to the authorities, or anyone, in the future, for reasons of religion.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him, or on his behalf.
Complementary protection
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) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant (or his father or family members) have experienced any of the past harm or threats as claimed.
The Tribunal has accepted that the applicant is an educated male with qualifications and work experience and that he has his parents and [sibling] in China. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason in China.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case China, there is a real risk that he will suffer significant harm for the purposes of 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).
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

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

Christine Cody
Member

ANNEXURE A - RELEVANT LAW

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.
Refugee criterion
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country. 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. 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.
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.
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.
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
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’).
‘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. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal 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.

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

[2017] AATA 1349

28 July 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction