1507815 (Refugee)

[2016] AATA 4969

1507815 (Refugee) [2016] AATA 4969 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507815

COUNTRY OF REFERENCE:                  China

MEMBER:Rodger Shanahan

DATE:23 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2016 at 10:44am

CATCHWORDS
REFUGEE – protection visa – China – religious group – member of the Yiguandao/ Tao community – fears being killed by the local government – credibility issues – use of false passport – delay in seeking a Yiguando community – planned to return to China if situation improved – inconsistent evidence about work in Australia –delay in applying for protection –  decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 424AA, 499
Migration Regulations 1994 (Cth) Schedule 2


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 on 21 May 2014 and the delegate refused to grant the visa on 13 May 2015.

3. The applicant appeared before the Tribunal on 9 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Protection Visa Application

4. The applicant claimed that he entered Australia on a forged passport in 2014. He found his way to a [Ms A] who he was told would be able to fix his immigration problem. He paid her money, she took his passport away and told him she would sort it out.

5. He went back three months later to get his passport in order to obtain a drivers licence but she told him that the passport had been confiscated by the Immigration Department.  He only remembered the false name in his passport was [an alias].  He claimed he had two passports; the one he entered [Country 1] with, and one he received from the Chinese consulate in [an Australian city] on [date] 2013. He heard from [Ms A] that his application had failed but he had never received any notice of a hearing.

6. He claimed that his parents were disciples of Yiguandao in China and there was an altar in their house. This was falsely labelled as a cult.  His family was discriminated against and oppressed. He was suspected of being a Taoist and was closely monitored and deprived of equal opportunity. After his father’s death they were holding a ceremony when government security guards assaulted them saying their activities weren’t approved.  Later their altar was attacked and other ornaments destroyed.

7. Before the 2004 Spring Festival he and his mother were reported practising Tao by informers and security police rushed to his home to arrest them.  In the struggle he managed to escape but his mother was covering him and was arrested he hid in a friend’s house and hired a people smuggler to leave the country.

8. When he came to Australia he knew little about local laws and didn’t know how to apply for a refugee visa; he was thinking of returning to China if the situation got better.  The situation however got worse.  He didn’t disclose his Taoist beliefs and didn’t find a Tao organisation in Australia until he did so by chance in 2007. In the past few years some priests from [Country 2] had come to preach Tao in his hometown; one was invited to their house but was discovered and their altar demolished.

9. At the start of 2014 he asked a friend to take a Tao book to his mother but it was discovered and confiscated by the police.  The police therefore found he was preaching outside China and they made his mother call them to pass on a warning from the police to stop preaching or he would be punished severely.  Because of this harm he was asking for protection from Australia.

10. He didn’t apply earlier because he was led to believe that the holders of false passports would be caught and repatriated. He also thought he would be refused because many countries label Taoism a cult. He was given contradictory information by migration agents so he was worried about his application.  Recently he was told by another adherent that a friend of his had been granted a protection visa so he was advised to try.

    Tribunal Hearing

11. The applicant claimed that he had joined Yiguandao (YGD) since he had been in Australia and submitted photos of him in a temple in [Suburb 1] two weeks previously.  He had been going to the temple since 2007; sometimes weekly and at other times once every two months. He had been doing this since 2007.  He claimed that he could provide a letter from his Tao tutor but that person was overseas currently. He was asked why this had not been provided previously given he had had years to provide such a letter and had failed to do so; he claimed that he didn’t know that such a letter would help.  He was advised that he could do so after the hearing but was not given any specific additional time.

12. He claimed that if he returned to China he would be killed by the local government because of his Tao religion which was considered an evil cult in China.  He had no other claims.  He believes in Buddhism and had been a Taoist since 2007 in Australia. In China he had been a member since the end of 2002.

13. Regarding his practice in China, his parents had been long-time followers on YGD; his mother told him that believing in Buddhism was much better than believing in government and it would make his health better.  He gradually came to know Taoism and felt much better for it from the beginning of 2003.  He began volunteering in the temple.  Once there was a worship at the temple and police and local government people came and told them they had to pay protection fees if they wanted to practice their faith in the temple.

14. The people in charge said the activity was about religion and they refused to pay any money.  Since then the police and local government made trouble; confiscated books and smashed objects in the temple.  They also warned the members that they were practising an evil cult and if they continued they would be beaten.  This was around June 2003.  The last time was August 2003 and they held a secret gathering.  Their gathering was reported and the police and local government came again, smashed things and confiscated all the books.

15. In or before 2004 they got a notice that a temple brother from [Country 2] was coming to spread the Tao news.  He came to their family house and they attended his lecture.  About eight local police and government officials came to them, said they had been warned already and he was arrested along with others.  His mother protected him and she was detained instead.  Asked how his mother could protect him from the eight officials, he said there were six members at the temple.  His mother held the policeman and allowed the applicant to escape. 

16. Asked what his mother physically did, he claimed his mother held the policeman’s leg, the applicant struggled and he ran away.  Asked how his mother was physically able to stop the policeman, he claimed she was just over [age] years old and [an occupation].  It was put to him that it sounded strange how he could escape while his [age] year-old mother held onto a policeman’s leg.  He claimed his mother was fit and the police wanted to sabotage the worship.

17. The applicant hid in his friend’s house and his mother told him not to come back as several people were still searching for him.  He then felt he couldn’t stay in his home town as it was dangerous.  He left China to seek security and safety.  He had no idea where he was going when he left China and didn’t ask.  It was put to him that it appeared hard to believe he had no idea where he was going.  He went to [Country 3] for some hours then went to [Country 1] for two days.  He then got tickets given to him by the people smuggler network, part of the same group that got him a visa to [Country 3].  He knew when he was in [Country 3] that he was coming to Australia.  When he arrived in Australia in 2004 his intent was to stay in Australia for a period of time to observe the situation in China.  Asked to explain what he meant, he claimed sought security and safety in Australia. He arrived on a forged passport.

18. He wanted to temporarily hide in Australia and seek safety and security and to wait for a stable situation in China.  Asked why he didn’t wait in [Country 1], he claimed that he was told he should go to Australia.  He was asked if he wanted to wait temporarily wait outside China to see the situation in improve, he didn’t stop in [Country 1].  He claimed the people smuggler didn’t mention he could go to Australia until he got to [Country 3]. 

19. He was asked why he didn’t just ask to stop in [Country 1] for a short period to see what the situation in China was like.  He claimed he didn’t care where he waited.  It was put to him that he claimed to want to stop somewhere temporarily yet didn’t stop in [Country 1] which was open to him.  The Tribunal had a concern that he never had the intent to stop temporarily.

20. When he arrived in Australia he took a break for six months and didn’t work.  Asked if he followed Tao when he came here, he had no education qualifications or English language.  It was put to him that there was a large Mandarin-speaking population that he could have asked.  He claimed he couldn’t find his way around.  Asked what resources he tried to use, or if he went to [a Chinese community hub] to ask questions.  He lived in [Suburb 2] in a share house with a Mandarin speaker.  He didn’t ask about language or Tao services.  He said he didn’t want to raise his situation in China and it was put to him that he could just ask about Mandarin-language services. 

21. It was put to him that he had followed YGD and escaped, and was free in Australia to apply for protection and worship and the Tribunal was interested in seeing what the applicant did to address his situation in Australia in terms of seeking Tao services or what options were open to him in his own language.  He claimed that he only wanted to stay for a short period of time; asked what period of time he thought he would stay he claimed he called his mother weekly or fortnightly to check the situation. 

22. He was asked again how long he thought he would stay, he claimed he never thought about that. It was put to him that at some stage he had to make a decision and couldn’t call his mother weekly for a decade; it was reasonable to believe that he would have given himself a set period of time to see if the situation in China had improved.  He claimed that the third week he was in Australia he called his mother who told him the police were looking for him and he should stay in Australia.

23. A month later he was in [Suburb 2] and a tenant asked him about his visa and he told them he had come through a people smuggler.  The person advised him to lodge a protection visa application and he was introduced to a migration agent/solicitor in [Suburb 2] in 2004.  He told the agent (name was [Ms A]) everything and she said she would lodge the application.  The person later took away his false passport and asked him to sign several forms.  Around three months later his friend told him to get a driving licence and he needed a passport to get one. He asked [Ms A] for his passport back but she told him she had handed his false passport back to the Immigration Department and had been confiscated.  Asked what happened to his application he claimed he asked and they needed to wait.

24. Around one year later she told him his application was refused.  He didn’t appeal and was asked why not.  He claimed he was told not to appeal by the people he lived with or he would be caught.  Asked if he checked this with anyone such as a migration agent or the Mandarin-language service at DIBP and he said he didn’t. He claimed he asked [Ms A] and she told him he wasn’t allowed to appeal as it had been refused.  He was asked why an agent would say that to him given it was his right.  He claimed the environment in Australia was new to him and he was asked what he personally did to access information about his situation.  He said he made no attempt.  After he found out he was unsuccessful in 2005 he was asked what he did, such as going to another migration agent and he claimed he hadn’t.

25. He still didn’t know there were Tao services in Australia and made no attempt to find out.  In 2007 the situation in China was bad and he worked in Australia to survive.  One of his co-workers was making a call that he overheard and heard mention of Buddhism and temple.  He secretly asked the co-worker about this and the worker said it was a YGD temple.  The applicant was told that YGD was legal in Australia and he was introduced to the temple in [Suburb 1].  He joined the temple in 2007 and had been there ever since.  He attends activities and does volunteer work.

26. Asked why he applied for protection in 2014 he claimed that he wasn’t well educated and his passport was in a false name.  He was asked if he enquired of anyone what his options were and he claimed that he didn’t.  He was also asked if he had a valid Chinese passport in his own name and he claimed he had an old one and a new one after the old one expired.  He didn’t think he could get a new one because of what had happened in China.

27. He claimed that he had a false passport that was handed to his agent, and had a valid passport that was valid until May 2005.  He was asked why he didn’t apply for protection using his valid passport, and he claimed that [Ms A] said his real passport wasn’t in the system. He was asked why he didn’t just explain the truth and he again claimed [Ms A] told him the false passport was in the system.

28. He claimed he had problems in getting the new passport in 2013.  Other people got it for him; they entered the consulate and he paid a lot of money for the passport.  It was put to him that he had applied for and been issued a valid Chinese passport and was asked what the problem was.  He claimed it cost him more than he should have paid.  He had no evidence to support this claim.  He was asked why they would issue him a passport if he was wanted in China and he claimed that he had to pay a third party.

29. Asked why he waited until May 2014 to apply for protection after he had a passport issued in October 2013.  He claimed he had no idea he could apply again and had only been told by a temple member.  He was asked why he only found out now seven years after he began at the temple and he claimed that this was what occurred.

30. He was advised about s 424AA and it was put to him that he was asked a range of questions about YGD in his DIBP interview and he displayed no knowledge of the faith whatsoever, yet he had claimed he had been a follower in China since 2002 and this may raise questions as to whether he was actually a follower of YGD. He claimed he was not well educated.

31. It was also put to him that he had been attending temple since 2007 and had been going weekly or every two months yet had said in his DIBP interview that he had only ever been taken there by a friend when they needed help cooking and had only ever worshipped there once, in 2007 when he also received his baptism certificate.  He had only cooked there three times since 2007 and this was inconsistent with the attendance regime he had claimed during the hearing.  He claimed that he needed to work in order to survive and he went when they asked him to come.  Again asked about the inconsistent attendance regime, he claimed that he went on Sundays sometimes and sometimes not and he had to work far away from there at times.

32. He was then advised about s 91R(3) and the photos were referred to. A concern was raised that given the inconsistencies, his attendance may only have been for work or to establish a refugee profile and may not reflect any interest in the religion. He claimed he wasn’t working in the temple; he had been volunteering. The photos were in response to DIBP concerns that he didn’t have enough evidence and needed to produce some photos. It was put to him that there were no letters attesting to his attendance and had just submitted some photos from 10 days ago, yet he claimed he had been attending since 2007 and had done nothing between 2004 and 2007. He claimed he could not prove this as he didn’t seek to take photos when he attended the temple.

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. The applicant claimed to have arrived in Australia on a false passport in April 2004, however no longer had a copy of the false passport in question.  I have sighted a copy of his current valid Chinese passport issued in the name in which he has applied for protection and accept that China is the applicant’s country of nationality. 

34. The applicant is a [age] year old, unmarried male.  He claimed that he feared being killed by the local government because of his adherence to the Tao religion (YGD). He had no other claim.  

35. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

36. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.

    YGD Adherence

37. I do not accept that the applicant is a follower of YGD.  During his Immigration Department interview in 2015 he displayed no knowledge of the faith.  This is inconsistent with the fact that he claimed to have been introduced to it by his parents (who were disciples in China) and gradually came to know Tao so that he was an active follower in China from the end of 2002/start of 2003.  It is reasonable to believe that someone who had followed a faith in the face of such difficulties in China and then in Australia would have had at least some knowledge by the time of his Immigration interview interview in 2015. I do not accept that a lack of education would account for the complete lack of knowledge of the faith he claimed to be devoted to.

38. He was also inconsistent in his claims to have followed YGD in Australia. Despite claiming to have followed the faith since 2002/03 he arrived in Australia in 2004 and by his own admission didn’t visit a temple until 2007 which again is inconsistent with his level of adherence to his faith under adverse circumstances in China.  I do not accept the delay was because of his unfamiliarity with Australia and lack of English.  He made no attempt to find any information about temples in Australia when there was a range of ways in which he could have attempted to source information if he had any desire or interest in doing so.

39. He was also inconsistent regarding his claims of attending the [Suburb 1] temple.  During the hearing he claimed that since 2007 he had attended the temple either weekly or every two months.  Yet during his Immigration interview he claimed that he had only ever worshipped there once, in 2007 and that he had only been taken there to cook which he had done on three occasions since 2007.  When asked to explain the inconsistency in his claims he simply stated that he sometimes went on Sundays and had to work far from the temple at times.

40. I have taken into account the photos that he provided showing him at the temple. He claimed that he had taken them 10 days prior to the hearing. I lend them little weight given my concerns stated above and the lack of supporting evidence such as letters of support from temple elders which it is reasonable to assume he would have had presented were he a regular worshipper. Although he claimed he could provide a letter from his Tao tutor none was forthcoming in the two weeks between the hearing and the decision being finalised. I have also taken into account his Tao baptism certificate (folio 2) but note that it was dated 2007. As a consequence, I give little weight to the applicant’s baptism as proof of his genuine adherence to the practice of the faith. As I advised the claimant during the interview, s.91R(3) requires me to disregard this conduct (the photo and baptism certificate) in determining whether the claimant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening his refugee claim.

1. Because I do not accept that the applicant is or ever was a follower of YGD, it follows that the applicant was never the focus of local authorities or police for being a Taoist, that he was arrested and escaped or is wanted by the authorities in China.  This is supported by the delay on the part of the applicant in applying for protection in Australia.  Despite claiming to have arrived in 2004 he did not claim asylum until a decade later in 2014. 

2. Although he claimed he applied through a solicitor/migration agent in 2004 I am not satisfied that this is the case.  To begin with, it relies on the applicant’s evidence only which I have found to lack credibility. He also claimed that the application was filed using the applicant’s ‘false’ passport rather than his ‘real’ passport which was valid until 2005 and that this was done on the agent’s advice.  He also claimed that people he lived with and the agent told him that he was not allowed to appeal the decision.

3. I find it implausible that an agent would submit an application under a false passport when she knew he had a valid one in his possession, or that she would tell him he was not allowed to appeal.  I also do not accept that he would have failed to check this advice, or advice given him by his unqualified housemates with the Immigration Department using a Mandarin service in order to check the veracity of his agent’s and housemates’ claims.

4. Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason now or in the reasonable foreseeable future.

   Complementary Protection

5. Although I have disregarded the applicant’s temple attendance and baptism for the purposes of the applicant’s refugee claims, I have had regard to them in assessing his claims relating to s.36(2)(aa). Because I do not accept that the applicant has been or is a genuine follower of IKT I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

6. As a consequence I also do not accept 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

   CONCLUDING PARAGRAPHS

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).

8. 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).

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

   DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

    2. 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).

    3. 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’).

    4. 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 – to the extent that they are relevant to the decision under consideration.