1509608 (Refugee)

[2016] AATA 4883

1509608 (Refugee) [2016] AATA 4883 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509608

COUNTRY OF REFERENCE:                  China

MEMBER:Luke Hardy

DATE:22 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2016 at 4:45pm

CATCHWORDS
Refugee – Protection Visa – China - Religion – Imputed member of Eastern Lightning – Related to a member of Eastern Lightning – Whether authorities would impute applicant with membership – Lack of basis for claim - Witness Credibility – Vague and inconsistent evidence

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

CASES
MIAC v SZQRB [2013] FCAFC 33

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, [Mr A], is a citizen of China. He arrived in Australia on a student visa [in] October 2002. He was granted a further student visas, the last valid to [April] 2007. In the meantime, he visited China between [January] and [February] 2006. [Mr A]’s status in Australia became unlawful [in] April 2007 until he obtained a bridging visa upon lodgement of his protection visa application [in] September 2014.

3. The Minister’s delegate refused to grant [Mr A] a protection visa [in] June 2015, and [Mr A] then sought review of that decision in the Refugee Review Tribunal, which merged into the AAT on 1 July 2015.

4. [Mr A] appeared before the Tribunal on 22 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted in the presence of an interpreter in the Mandarin and English languages, although [Mr A] asked to be allowed to give his evidence in English.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

5. The overall issue in this case is whether [Mr A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Claims

6. [Mr A], who comes from Liaoning, told me that he is an only child, his father a retired [worker] and his mother a retired [occupation]. He claimed to me that both parents now live mainly off state pensions. He told me his parents own their [apartment] in Liaoning although they have been divorced since 2014. He told me his father now lives with his parents ([Mr A]’s paternal grandparents) in Liaoning. He claimed his mother continues to reside in the apartment. He told me that both of his parents are living at large in the community, i.e., that neither is in any form of detention.

7. [Mr A] told me he was sent to Australia in 2002 to [study]. He said that after he matriculated he went to a college to study [a particular field] and that he changed courses after a time to study [a vocational field], the reason being that the [qualification] at the time appeared to provide a cheaper and more certain pathway to permanent residency in Australia. He confirmed later in the hearing that his mother in particular supported his efforts to secure permanent residence in Australia. [Mr A] told me his college went bankrupt in or around 2007, leaving him here as an unlawful non-resident. In spite of his high level of competency in English, he did not apply for a protection visa for another seven years.

8. Asked to explain why he did not wish to go back to China now or in the reasonably foreseeable future, [Mr A] said his father had been in trouble there. He also said his mother feared for him because she had already used up all her money to put and keep him in Australia. He said there would be nothing for him back in China, that he would have difficulty finding employment and would not adjust easily to the socio-economic environment there in view of having been away from the country for so long. Asked about his father’s problems, he said the police keep searching for his father due to his father’s religion. He then clarified that the search to which he was referring had taken place back in 2006-7 and had resulted in his father being detained for two weeks (he initially said “two months” and corrected this, confirming the “two weeks” claim later in the hearing.

9. [Mr A] told me his father’s religion is the banned religious movement “Eastern Lightning”, which has been labelled an “evil cult” by the Chinese government. He claimed that neither he nor his mother ever had or have any interest in Eastern Lightning, which is also known to its followers and others as “Almighty God”.

10. The name of Eastern Lightning in Chinese is Quannengshen. Background relating to this church is here provided by DFAT[1]:

    Church of Almighty God/Eastern Lightning/Real God Church

    3.35 The Chinese government banned the Church of Almighty God in November 1995. The organisation is an offshoot of the Shouters group. The group is also known by other names, including, "The Church of the Almighty God", "The Congregation", "Oriental Lightning", "Seven Spirit Sect", "Second Saviour Sect", "True Light Sect", "True Way Sect", and "New Power Lord's Church”. It was founded in 1989 by Zhao Weishan, a physics teacher who grew up in Henan province but later fled to the United States. Adherents believe Jesus has returned to earth as a Chinese woman known as “lightning Deng” (Yang Xiangbin, the wife of Zhao Weishan). Members believe they are in a constant life-or-death struggle against the “Great Red Dragon” (a reference perhaps to the Chinese Communist Party) and that membership of the group would save them from impending apocalypse. Chinese media reports claim the group has more than one million followers divided into seven levels, with lower-level followers unconditionally obeying their superiors. Official sources say most members are under-educated rural women aged around 50 years.

    3.36 State media reports detail abductions; extortion; beatings; murder; seduction; and aggressive proselytising as part of the group’s practice of recruiting new members and punishing non-believers. For example, 35 members of an evangelical Christian group were reportedly kidnapped by members of the  Church of Almighty God in 2002. According to media reports of a man who reportedly joined the group "under cover", followers are first initiated by attending bible study classes and being taught orthodox Christian doctrine but later "abnormal teachings" are introduced. Members are encouraged to break away from family and are taught that non-believers are considered "impure" and "evil". Low-level believers are reportedly told that the church will give them and their family immortality. Large-scale arrests (more than 100) of Almighty God members have reportedly taken place in Qinghai, Guizhou, Ningxia, Henan and Liaoning provinces in recent years.

    3.37 In May 2014, a Chinese woman was reportedly beaten to death by six members of Church of Almighty God at a McDonald’s restaurant in Zhaoyuan, Shandong. According to state media reports, the six members (five adults and a twelve year old child) walked through the restaurant collecting phone numbers from diners. When the woman refused to give her number, she was reportedly beaten with chairs and a metal mop handle. The woman later died in hospital. Two of the six alleged perpetrators were executed on 2 February 2015. Three others were each sentenced to life, ten and seven years in prison for their role in the attack.

    3.38 The McDonald’s case has triggered an official crackdown on “cult” organisations. According to a news report published by the English version of the state-owned China Daily, the Ministry of Public Security said Chinese police would "severely attack" religious cults and punish those who participate in such movements. More than 1,500 cult members have reportedly been detained, and others have been arrested and sentenced to prison terms. For example, in July 2014, twenty-five cult members were given jail terms from three and a half years to eight years in the Ningxia Hui Autonomous Region. In Henan, five people were given prison sentences of three to three and a half years for editing and handing out leaflets about the church. Four women in Liaoning also received prison sentences of three and four years organising illegal activities and distributing publicity material for the group.

    3.39 Credible sources have told DFAT that the government’s efforts to crackdown on Christian “cult” organisations are primarily aimed at identifying and punishing the leaders. Disciples are generally seen as vulnerable victims who have been taken advantage of by “opportunistic people who are trying to make money”. DFAT assesses that the government’s current crackdown on “cultish” organisations, could result in members of unregistered church movements being mistreated by authorities who conflate unregistered church membership with membership of a cult. Stigma and suspicion of cult members can make it difficult for them to access lawyers who are willing to defend them; and lawyers who are willing to take on such cases are often themselves targets of adverse attention by authorities.

    [1] DFAT Thematic report: Unregistered religious organisations and other groups in the People’s Republic of China, 3 March 2015

11. More details of core beliefs of this sect can be found in the article “Jesus Is Back, and She's Chinese” in the 5 November 2001 edition of TIME magazine.

12. Essentially, [Mr A] claims fear of persecution in China because of his father’s Eastern Lightning affiliation; as articulated by [Mr A], this is a claim about imputed “religion” and “membership of a particular social group” the group in question being the family of his father.

13. In his 2014 protection visa application, [Mr A] claimed his father began following Eastern Lightning in June 2007, which would have been around three months after [Mr A] himself began overstaying his last substantive visa in Australia. He said in his protection visa application that the police caught his father at an Eastern Lightning gathering and arrested him, but did not detain him due to his evident affiliation with the group being a “first offence”. He claimed his mother kept telling him over the telephone from this time onward not to come back to China because relatives had begun to shun her and his father’s employer had undertaken some kind of “disciplinary action” against him. [Mr A] claimed that seven years passed “in a twinkling” and that his family home was raided by the police [in] June 2014. He claimed that his father was out at the time and that only his mother was home. He claimed this happened in the wake of the notorious McDonald’s murder of “27.5.2014”. He claimed that the police found several books pertaining to Eastern Lightning. He claimed his father was dismissed from his company and had to go into hiding. He claimed his mother was called to a police station and asked to divulge the whereabouts of her husband and also his own. He claimed his mother did not divulge anything and was threatened with detention. He claimed that after this incident he felt he could not date to return to China.

14. There are two key inconsistencies in [Mr A]’s claims: one, as noted above, is that contrary to his original claims, he told me at least twice how his father was jailed for two weeks by the police in 2006 or 2007; the other being that, contrary to what he told the Department, he said to me that the police found nothing at all of note or concern when they raided his mother’s apartment in 2014. Furthermore, when giving his evidence to me about his father having resided since the divorce with his, [Mr A]’s, paternal parents, he made it quite clear that the authorities know where he has been residing. In addition to this, he did not suggest to me in any way at all that his mother was or remained under any suspicion or was summoned to a police station or had been forced under threat to divulge anyone’s whereabouts at the time.

15. When I asked [Mr A] how his father manages to remain at large in the community given the reportedly murderous notoriety of Eastern Lightning and the evident seriousness of the state crackdown on the cult, he said his father has repeatedly tricked the authorities year after year with false promises to abandon the cult, which, according to him, the police seemed repeatedly to believe. He also said his grandparents live outside the city. My impression here is that he was improvising his answers to questions.

16. I asked [Mr A] what his father might be doing now that is of concern to the police he said he does not know, as he has not talked to his father. He said his mother had advised him not to talk to his grandparents. However, he claimed his grandparents have not been harmed, arrested or detained for housing his father.

17. [Mr A] suggested to me that his parents separated in 2014 over the Eastern Lightning issue, with the raid occurring after the separation.

18. I put to [Mr A] that whichever aspect of his evidence one relied upon, his father and family, including his mother had not been bothered by the authorities since 2014. I then asked him if he too might therefore be safe from relevant harm in the reasonably foreseeable future. In reply, he said he had no idea. I put to him that this vague response might make it hard for me to find a real chance of persecution in the reasonably foreseeable future. It was then that he said he might not be able to find a job. He went on to say he was used to living in Australia.

    Findings in relation to s.36(2)(a)

19. I accept that [Mr A]’s parents have separated, although not for the reasons claimed.

20. I am not satisfied that [Mr A]’s claims about his father, Eastern Lightning, the arrest in 2006 or 2007, or the 2014 raid on the family home are factual. I find on the inconsistent, unsupported and vague evidence before me that [Mr A] has fabricated his claims. His oral evidence points strongly to his having sought to a protection visa in order to achieve a migration outcome that was not attainable through enrolling in [a course].

21. In the alternative, I would give weight to the fact that, according to [Mr A]’s oral evidence, the authorities have only been interested in his father, not his mother and not his grandparents. On this basis, I find the authorities would not impute [Mr A] himself to have any links to Eastern Lightning, and I find that he would not be harmed for reasons of imputed religion or membership of a particular social group or any other Convention-related reason.

22. I do not accept that [Mr A] would have difficulty finding a job in China, let alone for the reasons claimed. I find that his claimed fear of unemployment and adjusting to life China does not involve a real chance of persecution in the reasonably foreseeable future.

23. I am not satisfied on the evidence before me that [Mr A] faces a real chance of Convention-related persecution in China in the reasonably foreseeable future. His clamed fear of persecution is not well founded. He is not a refugee.

24. For the reasons given above, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

    Findings in relation to s.36(2)(aa)

25. Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

26. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

27. Essentially, [Mr A]’s complementary protection claims rely on the same facts as his refugee claims.

28. As shown above, [Mr A]’s refugee claims have generally not succeeded as claims to protection as a refugee under s.36(2)(a) due to their lack of credibility. In the alternative, I have made findings as to the lack of a real chance of relevant harm. In view of my findings of fact on [Mr A]’s claims to protection under s.36(2)(a), and in view of the “real chance” and “real risk” tests being essentially the same, his claims in this application can no more succeed as claims to complementary protection than they have done in relation to the refugee criterion.

29. Having considered all of the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that [Mr A] will suffer significant harm.

30. Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings  

31. There is no suggestion that [Mr A] 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, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

33. 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.

34. 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).

35. 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.

36. 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’).

37. 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.