1507952 (Refugee)

[2016] AATA 4805

1507952 (Refugee) [2016] AATA 4805 (23 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507952

COUNTRY OF REFERENCE:                  China

MEMBER:Judith Troeth

DATE:23 December 2016

PLACE OF DECISION:  MELBOURNE

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

Statement made on 23 December 2016 at 9:50am

CATCHWORDS

Refugee – Protection visa – China – Religion – Christian – Political opinion – Opposition to one-child policy – Proselytising

LEGISLATION

Migration Act 1958, ss 65, 36, 499
Migration Regulations 1994, Schedule 2

CASES

ZC &Others (Risk-Illegal Exit-Loan Sharks)China v Secretary of State for the Home Department, CG(2009) UKAIT 00028

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).

   The applicant claims to be a citizen of China. The Tribunal is satisfied that the applicant is a citizen of China, as a legal passport in the applicant’s name was sighted by the Tribunal at the hearing. The Tribunal is satisfied that China is the applicant’s country of reference for the purpose of assessing protection obligations under the Refugees Convention. It is also satisfied that China is the applicant’s receiving country as defined in Section 5 of the Migration Act for the purpose of assessing the complementary protection criteria. The applicant applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] May 2015.

2. The applicant appeared before the Tribunal on 29 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Reverend A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. 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.’

6. 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).

7. 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.

   The issue in this case is that the applicant fears returning to China because of his opinion on the one child policy, and his religion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS

8. The applicant arrived in Australia [in] June 1998 holding a [temporary] visa (granted under the alias [Alias 1]).He applied for a protection visa [in] August 1998. That application was refused and the applicant overstayed his Bridging visa. He remained in Australia unlawfully from [March] 2001 until he approached the Department voluntarily and was granted a Bridging visa [in] January 2014.

9. The applicant claims to have been detained by the authorities in 1992 for one week for proselytising in public He was not charged, but it was one of [number] warnings given to him by police. Six of the warnings were before his arrest and [the rest] of them were after it. 

10. He objects to China’s one child policy. He and his wife have three children, born in [specified years]. After the second and third child were born, he was taken to the village authority and made to pay a fine. The fine was [amount]CNY (about $[amount] AUD) for the second child, and more for the third child. It was also the time of the census and he also paid a bribe (approximately $[amount] AUD) to get a hukou for the third child to access medical and educational services. The Tribunal asked him how he managed to pay this sum and he replied he had many brothers. His wife was sterilised to avoid having more children.

11. He was very angry about the one child policy, and wrote a poem on the subject in 1992,   which he posted on the board at the village hall. He claims that after this, there was a lot of talk and he had to run away to his brother’s [business] about [distance] away where he could work. He claims he needed to work and make a living and proselytise to the workers. In the Tribunal hearing, he claims the time in the [business] was in1992, but when talking about the hukou payment for the third child, he talked about being in the [business] in 1994.The Tribunal inquired about the discrepancy in the dates, but his response was that the conversation was making him confused.

12. He agreed that he had not suffered any harm as a result of his disagreement with the one child policy, apart from the imposition of the fines, to which everyone is subjected if they break the law. He claims that his father was detained for [number] years as a result of his son breaking the law.

13. The applicant claims he belonged to a local church in China and was attending a gathering in 1998 when the village authorities burst in and arrested [number] people. He was able to escape because he hid in a [location] outside the house. After everyone had left the house, he went into hiding in another member’s house for six days. It was not far from his own home, but he did not dare go home because ‘The Government knew where I lived’.

14. He went home after six days; he agreed with the Tribunal that this was the only instance of harassment because of his religion. Seven months later he decided to go to Australia, as he decided there was no hope in China because of the family planning policy and he had no freedom for evangelising. He had evangelised previously in his own local area by visiting friends and relatives. He did this without an invitation and visited houses up to four times per week. He also evangelised to the workers in his brother’s [business]. The Tribunal asked why he was not apprehended for this, but he said it was inside the [business].

15. He did not apply for a legal passport, as he said the Government had a prejudice against people from his area (Fuching in Fujian county).Too many of them go abroad and become illegal immigrants in another country, and say bad things about China. He then applied for a fake passport in another name, and though he said there was a police investigation over this at the time, he agreed that it had not continued, and he is unlikely to be pursued on this matter if he returns to China. When he applied for a legal passport, there were no issues in obtaining one.

16. Since his arrival in Australia, he has attended church (Methodist) regularly and is described by the minister in [charge] as ‘honest helpful and committed’. The witness who attended the Tribunal hearing, [Reverend A], also described the applicant as very devoted, a good Bible student and a regular attendee at church activities.

17. The applicant also claims to have set up a blog since his arrival in Australia. He claims it is with his church members in China and they communicate and share the gospels. He claims that he published many comments about freedom of belief and attacked the hypocrites of the patriotic churches. He claims the authorities deleted the blog, forced his family to ring him and tell him to stop spreading gospels.

18. The applicant claims that in 2013, via phone calls from his family, he learnt that police had set up surveillance to his house and kept on disturbing his family.

    ASSESSMENT OF CLAIMS

19. The applicant claims to be fearful of persecution relating to his objections to China’s one child policy. He claims that it is a human right to have children. Apart from the fathering of the children, he claims that his one public act of objection was the poem which he showed publicly in the village, and then he fled. He had already paid the civil penalty for having more than one child and it is unclear to the Tribunal from his evidence what further retribution he expected. His Chinese home was in Fujian province, and the Tribunal consulted a DFAT publication of ’Fujian Provincial People’s Congress Standing Committee’s Decision on Amending Fujian Population and Family Planning Regulations’, published in March 2014.While the new regulations would not affect the applicant and his wife, there is an indication of a liberalising of family policy to take into account different family circumstances. This was brought to the applicant’s attention, but his response was “Even after nineteen years if the Government comes to me it will be too much and will be a burden to me”. The applicant was vague about where in the village he posted the poem and what the contents were. The Tribunal does not accept that he made known his views on the one child policy by publicly posting a poem in the village. He claims to have worked and slept in his brother’s [business] for three years. He could give no details about the size of the [business], the number of workers or how it was possible for him to live in such conditions. His evidence on this matter was vague, confused and not credible. The Tribunal does not accept that he wrote a poem about the one child policy, posted it publicly and then fled to work and live in his brother’s [business].

20. In his written statement to the Tribunal, the applicant claims that his wife became a Christian under his influence. However, when asked at the hearing how he met his wife, he says he met her at a local church, where she was already a member of the congregation .He explained the contradiction by saying the error had occurred during translation. This is a difference in the substance of the claim, and the Tribunal does not accept that the wife became a Christian because of the applicant’s influence.

21. In the following paragraphs (22-27) the information from the Departmental interview and the RRT hearing is from the delegate’s decision record, a copy of which has been provided to the Tribunal by the applicant.

22. The applicant gave confusing answers about going to work and hiding in his brother’s [business]. Early in the hearing, he gave the date as 1992,and then later in the hearing he claimed to have gone there after  the larger fine for the third child which was in 1994.His response when challenged about the discrepancy was to say that the discussion was making him feel confused. Arriving at the [business] is claimed to have been both after the raid on the local church (early 1990’s- date unspecified) and after the poem was posted in 1994.It is not plausible that the applicant could evade capture for over three years while hiding, working and evangelising in a [business] owned by his brother. The Tribunal does not accept that the applicant hid, worked and evangelised in a [business] owned by his brother.

23. The account given of his religious activities in China also lacks credibility. The account given to the Tribunal indicates a low level of evangelising at a local level, visiting houses of his friends and neighbours to talk about the gospel. However, the Tribunal notes that at the Departmental interview, the applicant claimed to have been warned to stop evangelising in public by police about [number] times. By contrast he did not mention the [number] warnings by the police at the Tribunal hearing. In his evidence to the Refugee Review Tribunal in 2000, he refers in a vague manner to evangelising for [a church], without specifying place or audience. In his evidence to the Tribunal he spoke about evangelising to his fellow workers at his brother’s [business], while working there. The Tribunal questioned him about his brother’s attitude to this as he was the employer. The applicant replied that as it was his brother, he did not mind. Due to the contradictory evidence about the evangelising, the Tribunal does not accept that he evangelised in China or Australia, but accepts that he has undertaken some limited low level church activities in both China and Australia.

24. The Tribunal does not accept that the applicant was at a local church gathering, which was interrupted by the authorities. In his account to the Tribunal, he claims that [number] people were arrested; in his earlier accounts he had claimed [much larger number] people had been arrested (RRT hearing 2000). The Tribunal does not accept that he hid in a house not far from where he lived for six days so the authorities would not find him. By his own account he lived in a small rural village, and it would have been easy for the authorities to find him.

25. The applicant has claimed that his wife was sterilised, but the dates vary. In the Refugee Review Tribunal in 2000, he claimed that his wife was sterilised in 1991, and this date was also given in the departmental interview [in] May 2015. However, the third child was born in 1994.The Tribunal asked the applicant about the various dates previously given, and he replied that the lawyer had drawn up the documents and it was the lawyer who had made the mistake. The Tribunal does not accept that his wife was sterilised, either voluntarily or by force. The Tribunal does not accept that a husband with avowed strong feelings about the one child policy would confuse the dates of that event, nor would he leave it to a lawyer to record the date, so the Tribunal concludes that this event was invented to reinforce the severity of the policy. The applicant had earlier claimed in the RRT hearing in 2000 and the departmental hearing in 2015 that his house had been demolished as part of the punishment for contravening the one-child policy. However, no mention was made of this at the Tribunal hearing. The Tribunal does not accept that the applicant’s house was demolished.

26. Similar discrepancies were noted in the claim that his father had been detained for [number] years, which was made to the Refugee Review Tribunal in 2000. [In] May 2015 (departmental interview) the applicant claimed that his father had been detained for [lesser number] years. When asked at the Tribunal about the difference, the applicant said his father had been detained for [number] months. He could not account for giving different lengths of time for his father’s detention. The Tribunal does not accept that his father was ever detained due to the discrepancies in the evidence of the applicant on this issue.

27. The Tribunal asked the applicant about the blog he has claimed to be operating in Australia in 2013.According to him he publishes controversial comments about the church and has been stopped by the authorities. When asked at the Tribunal hearing who reads the blog, he said he did not know, he just put the material on the computer. He did not receive feedback from any replies. The Tribunal notes that, at the departmental interview in 2015, the applicant said he had not posted material on the blog, but his wife had, and it was her blog. The witness at the Tribunal hearing, [Reverend A], confirmed that there was a blog, but could not provide any details. The Tribunal discussed with the applicant that the difference in some of his statements would make it difficult to assess his case, but he had no comment to make. The applicant claimed in his written statement that his wife had been threatened with arrest after the blog was shut down but she was not arrested. The applicant’s evidence regarding the blog was changeable, confused and unconvincing and the Tribunal does not accept that the blog ever existed, that it was closed down by the authorities or that he or his wife were threatened with arrest, or that his family were forced to ring him in Australia to tell him to stop posting on the blog.

28. The applicant claimed in his written statement to the Tribunal that because he was under government persecution in China, he was not able to get a passport under his real name when he left China. He claims therefore that he was forced to bribe a smuggler. Allegedly, the Chinese government investigated the matter, the smuggler was arrested and pressure was put on his family to persuade him to return to China. He entered Australia under the alias of [Alias 1] in 1998.When this claim was discussed with the applicant at the Tribunal hearing, he claimed that although there was an investigation, he had heard nothing more about the matter since 2006. The delegate’s decision notes that, on the matter of the use of fraudulent passports and penalties for such use, information is limited. DFAT’s Beijing post responded to an information request from the RRT in 2009 to say that the post was not aware of any verified information regarding any incidents where Chinese nationals, having left the PRC using a fraudulent passport, have faced criminal sanction  on their return. However, PRC’s Criminal Law and, separately, Public Security Administration Punishments Law contain articles relating to illegal crossing of borders, including through the use of fraudulent passports. Similarly, the UK Asylum and Immigration Tribunal and Immigration Appellate Authority in ZC &Others (Risk-Illegal Exit-Loan Sharks)China v Secretary of State for the Home Department, CG(2009) UKAIT 00028 which examined the application of Chinese entry and exit laws found individuals in violation of those laws are not reasonably likely to be imprisoned or subjected to administrative detention for having left China unlawfully. When the applicant applied for a new Chinese passport in 2013, there were no questions asked, indicating that he is not of adverse interest to the authorities for having used a fraudulent passport and the Tribunal does not accept that his fear of returning to China for a Convention reason is well-founded. On the basis of the above reasons there is no real chance of serious harm and no real risk of significant harm.

1. The applicant produced at the Tribunal hearing letters of recommendation from a member and a minister at [a church], which he has apparently attended since coming to Australia. He also produced photocopies of photographs which purport to show the applicant at church events. The applicant was accompanied at the hearing by [Reverend A] of the [Methodist] Church in Australia. The unconvincing evidence and discrepancies raise doubts about the extent of the applicant’s practice and the depth of his faith in China. The Tribunal does not accept that he proselytised in China, nor in Australia. However, the Tribunal accepts his claim to have attended Christian worship in China, and accepts that he attended a local church in China, but as a low-level worshipper, not as a leader or an organiser. Similarly, it is also accepted that he attends a Christian church in Australia on the same basis, and it is accepted that he would continue his Christian practice were he to return to China, at the low level attendee at the church.

2. The applicant claimed in his written statement to the Tribunal that in 2013 police had set up surveillance on his home and were disturbing his family. When asked about the level of surveillance at the Tribunal hearing, the applicant said that it was the village authorities, who were phoning his wife and family once or twice a month, and were visiting them every two to three months. Given the Tribunal’s earlier findings about his claims and his profile, it is not accepted that he is a person of interest to the authorities. The Tribunal does not accept that his family are being disturbed or are under surveillance.

   FINDINGS

3. The Tribunal does not accept that the applicant has been the subject of persecution because of his religion. The Tribunal does not accept that the applicant evangelised his Christian faith in China or in Australia, or was of adverse interest to authorities because of his religious activities. The Tribunal does not accept that the applicant’s usual practice of the Christian religion would attract adverse official attention or raise his profile to one of any prominence in China, and find there is no real chance the applicant would be prosecuted or imprisoned for practising his faith. In light of available country information, which states that ‘In the applicant’s home province of Fujian, Christian worship in both registered and unregistered churches is widespread, and authorities in Fujian are amongst the most liberal of Chinese provincial authorities in their attitudes to Christian worship’ (CIS26836 ‘Protestantism in China : A Dilemma for the Party-State” I January 2011),and which was put to the applicant, but he did not have any comment to make. The Tribunal does not accept that his fear of harm on the basis of his religion is well founded. The Tribunal also finds that, based on the above findings and reasons, that there is no real risk of significant harm to the applicant on the basis of his religion.

4. The applicant had no issues with the authorities when he applied for a passport, and the Tribunal is satisfied that he is not a person of interest to the authorities on this matter.

5. The Tribunal does not accept that the applicant publicly objected to the one child policy and was of adverse interest to the authorities. The applicant was clear at the hearing that he had suffered no harm for violating the one child policy, and has paid all the penalties already. As nineteen years has elapsed since he left China, the Tribunal does not accept that there is a real chance that if he returns to China he will suffer serious harm in the reasonably foreseeable future for this reason. The Tribunal also finds that there is no real risk of significant harm to the applicant on the basis of the one child policy or his alleged objection to the one child policy.

6. 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).

7. 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).

8. The Tribunal does not accept that there is a real risk of suffering significant harm for the applicant if he is returned to China.

9. For the reasons set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

10. 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.

    Judith Troeth
    Member