1510165 (Refugee)

[2016] AATA 3787

1510165 (Refugee) [2016] AATA 3787 (18 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510165

COUNTRY OF REFERENCE:                  China

MEMBER:James Jolliffe

DATE:18 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2016 at 12:53pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. The matter was remitted by consent from the Federal Circuit Court of Australia on the basis that the applicant had not been advised of a previous Tribunal hearing date. The Refugee Review Tribunal had issued a decision on 15 April 2015 affirming the decision not to grant the applicant a protection Visa. The applicant had not attended a Tribunal hearing in relation to that decision.

4. The applicant appeared before the Tribunal on 7 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   Relevant Law

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Department and Tribunal files relating to the applicant and information from a variety of sources.

11. The issue in this case is the applicant claims to fear harm if he returned to China on the basis that he attended a Christian “house” church in China and that he is a Christian.

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

13. In his protection Visa application which was lodged in February 2014 the applicant claimed that he was born in Chengdu city in Sichuan province in China on [date]. He gave his religion as “Christian” in his application. He claimed that he married in 1994 and that he had no right to enter or reside temporarily or permanently in any other country apart from China. He claimed to have arrived in Australia in January 2014 on a [temporary] visa. He claimed he was issued with a Chinese passport [in] 2013. He claimed to have travelled to [Country 1] and [Country 2] in July 2013 for about four days. He claimed to have resided in Chengdu city between January 2004 and January 2014. He claimed to have received [number] years of education in China. He claimed that he worked as [occupation] in China between 1984 and January 2014. In information provided in support of his protection Visa application he said he had a wife and [child] in China. He also claimed to have his mother and [sibling] living in China. He provided a copy of his passport in support of his protection Visa application.

14. The applicant provided a statement dated February 2014 in support of his protection Visa application. In summary in that statement he claimed there was no religious freedom in China and that he and his family had been persecuted because they attended underground gatherings in China. He claimed that after he left school he had been working part-time in the [industry] and that after he got married his [child] was born in [year]. He claimed he found it difficult to keep a stable job and it became difficult for him to support his family. He claimed that he had drunk a lot and was “grumpy” and argued with his wife and he was not close to his [child]. He claimed a friend told him about Jesus and that in September 2010 his friend ([Mr A]) took the applicant to a family gathering and the people at the gathering had been friendly to him and that he and the others learned the Bible and sang hymns together. He claimed he also learned how to pray. He claimed he became happier. He claimed that he began to understand about Jesus and that his friend told him about Jesus. He claimed that believing in religion improved his mood and he stopped getting drunk. He claimed his relationship with his wife and [child] improved and that he also found a stable and well paying job and he started to believe in Christianity. In summary he claimed that in July 2011 his mother had a [medical condition] and that his other brothers and sisters in the family church prayed for his mother and that she recovered. He claimed this event caused him to feel the “eternal life to those who believe in God”.

15. He claimed his wife was very happy because of his changed mood and that she also began to believe in Jesus and also attended family gatherings. The applicant referred to Christians in China only being allowed to attend “three self patriotic church” which the applicant said was controlled by the Chinese government and was not faithful to God. The applicant said that he was involved in organising family gatherings at home because he did not want to attend the patriotic church. He said they had to have secret underground gatherings. The applicant claimed that in April 2012 he had attended a family gathering at his friends home but it was interrupted by the police who came and arrested those who were attending. He claimed they were charged with attending “cult activities” and he claimed his friend was detained for a month and fined [amount] RMB. He claimed he and the others were detained for one night and fined [amount] RMB. He claimed this did not cause he and the others to stop believing in Jesus but they attended family gatherings secretly and in February 2013 he organised a family gathering at his home but he did not attend the gathering because was looking after his sick mother. He claimed that the police had come to his home and taken his family and friends and damaged items in his home. He claimed his wife was charged as the organiser of the gathering and was detained for three months and that “other brothers and sisters were detained for one week. In prison, my wife and brothers and sisters were tortured. They were not allowed to sleep and were beaten”. He claimed his wife was released after paying a fine and that after she was released she had to report to the police station regularly and his family was monitored. He claimed that the family decided to go abroad and in July 2013 he went with the tour group but because the tour was managed strictly he did not have the chance to seek asylum. He claimed that after he returned to China he found an agent and got a Visa to come to Australia. He claimed his wife couldn’t get a passport and had to stay in China. He claimed after he came to Australia his wife asked him not to go back to China and that the police had found that he had gone overseas and wanted him to return and surrender himself. The applicant claimed he would definitely be arrested if he returned to China and claimed that in China there was no democracy or religious freedom or freedom of speech. He claimed after he came to Australia he found a Chinese church with his friends help and he then found  out about applying for a protection Visa. He was seeking protection in Australia.

16. The applicant was interviewed in relation to his protection Visa application by a department delegate in June 2014. The delegate declined to grant the applicant a protection Visa and was not satisfied that Australia had protection obligations to the applicant. A copy of the delegate’s record of decision was provided with the application for a review.

    TRIBUNAL HEARING

17. The applicant attended before the Tribunal on 7 April 2016 to give evidence and present arguments. He confirmed his name and personal details to the Tribunal and told the Tribunal that he did not have a representative appearing for him or representing him. He confirmed to the Tribunal that he was seeking protection in Australia on the basis that he claimed to have been a member of a house church in China and he feared harm if he returned to China on that basis. He did not make any new claims to the Tribunal in terms of additional claims for protection in Australia. He produced his Chinese passport and that  was the only document that he provided to the Tribunal. He said he remains in touch with his family in China and he speaks to them once or twice a week and he confirmed that his family still resides in the family home in Chengdu in China. He claimed that if he returned to China the police would arrest him and he would be penalised and jailed because he had attended a family house church in China. He said there was no freedom of religion in China.

18. He claimed that when he obtained his Chinese passport a friend had applied for him. He confirmed to the Tribunal that the passport had been issued in his correct name and that the details about his identity in the passport were correct.. There was no suggestion from the applicant that it was anything other than a valid passport. He claimed that his friend had connections and the applicant claimed that he was on a blacklist because he had attended a family church in China. He told the Tribunal that he did not know if his friend had paid the police so that the passport could be issued but that the applicant claimed he gave "benefits" to his friend. He told the Tribunal that he had given money to his friend but he did not know what his friend had done in terms of the friends dealings with the police. He said that he works casually as [occupation] in Australia and that he is in involved in that [work].

19. The applicant confirmed to the Tribunal that he had travelled to [Country 1] and [Country 2] in 2013 before he had come to Australia and that he had been part of a tour group from China. He told the Tribunal that he had also applied for a visa to travel to [country] but he had been unsuccessful with that application. He told the Tribunal he had no difficulties travelling to [Country 2] or [Country 1] and that he had been there for about two weeks. He claimed that he was unable to apply for protection when he had been in [Country 2] and [Country 1] because he had been under the "control" of the tour guides on that occasion. He eventually told the Tribunal, after the Tribunal had asked him,  that his main purpose was to seek protection in Australia and that he had received a friend's advice to travel to [Country 1] and [Country 2] because that would make it subsequently easier for him to seek to travel to Australia. That issue had been referred to in the delegate's record of decision (see page 4 of the delegate's record of decision). The Tribunal asked the applicant why he decided to come to Australia. He said "Everything is better here in Australia" and that "everything is good". He said that the policy of the government in Australia was better for citizens and that he felt more comfortable in terms of his security in Australia. The Tribunal notes that the applicant did not refer specifically to his religious beliefs or religious freedom in responding to the Tribunal question. He told the Tribunal he had not had any difficulties travelling in or out of China on his passport. He confirmed he obtained his passport [in] 2013.

20. He was asked about his claims and he said he was a Christian. He was asked if he identified as a Protestant or Catholic but did not engage with that question but simply indicated he was a Christian (the Tribunal was trying to ascertain the applicant’s religious knowledge given that the DFAT thematic report of March 2015 dealing with unregistered religious organisations in China refers to “house” and “family” churches in the context of Protestant organisations and “underground” churches in relation to Catholic organisations in China). He was asked if he had been baptised. He queried the Tribunal as to the meaning of baptism and he told the Tribunal that he did not know what baptism was and that he had never heard of baptism. The Tribunal notes that the delegate's record of decision (see page 7) indicated that the delegate had asked the applicant about baptism. The applicant had told the delegate (according to the record of decision) that he had “not felt ready” to be baptised but his response to the Tribunal indicated he had no knowledge of the concept of baptism. He claimed he became a Christian" around 2012" and that he had become a Christian because life was hard in China and he had been doing casual work and he had a friend who had attended Christian activities. He then told the Tribunal that he had started attending Christian activities in 2010.He said those activities consisted of singing hymns and doing Bible studies and exchanging views about family issues with other people who attended the gatherings. He claimed he attended house church activities between 2010 and  2012 but he did not attend any in 2013 because he had been working. He initially told the Tribunal that he had attended three or four house church gatherings between 2010 and 2012 but then told the Tribunal he had only attended twice in that time. He said on other occasions he had gone into the meetings and left straight away and not stayed because he was afraid that the police would raid the meetings. He confirmed that his friend was named [Mr A].

21. He was asked if he engaged in any other Christian practices apart from the two gatherings that he had attended at house church meetings. He said that his friend would comfort him because of the applicant's family problems. The applicant said those problems were that he engaged in excessive drinking and he had no permanent job and that he fought with his wife. His friend had invited him to the house gatherings. The Tribunal noted that the applicant had told the Department delegate (see page 6 of the delegate's record of decision) that he had attended 10 house church meetings between September 2010 and August 2013. He told the Tribunal that he had only attended twice in terms of staying at the meetings and that he did not stay at the meetings on the other occasions. He told the Tribunal that he only knew [Mr A] at the meetings and he was not clear about who the other people were at the meetings in terms of knowing their names.

22. He was asked about his Christian beliefs. He responded initially by saying words to the effect that "he went somewhere with a friend on Sunday" and then said that he believed in Christ and that Christ teaches "what is good and what is love". He told the Tribunal that his knowledge of Christianity was not "so much". He told the Tribunal that he did not belong to any particular church denomination in China and as indicated he said he did not know the differences between Protestant Christians and Catholics. He said he attended a Christian church in China and he said he just exchanged conversations with friends in a house church and on the two occasions that he had attended there had been between eight and 10 people at the meeting. He initially told the Tribunal he attended house church meetings once a fortnight. However when he was questioned as to the details he told the Tribunal he had only actually attended and stayed for two house church meetings in the entire time he had been in China. He told the Tribunal that he had no memory of the hymns that had been sung or the Bible stories that had been told on those two occasions. He did not suggest to the Tribunal that he had any knowledge of hymns or bible stories. He was asked if he had attended church services in Australia. He said that he had attended church about two or three weeks ago and does not attend regularly. He said he attended a Christian church at [a suburb] near the station and that services were provided in Mandarin and that he attended those services with a friend if the applicant was available to attend. He could not name the church. He said he attends on Sunday and claimed that he did so once or twice a month and he claimed he also attended a Christian concert.

23. He was asked why he would not attend a three self patriotic church in China. He initially told the Tribunal he was not interested in attending that church and said he had no knowledge of that church and said he did not want to go to that church. The Tribunal did not believe that the applicant engaged with the Tribunal's questions about why he would not attend the three self patriotic church in China and he struggled to provide any real reason to the Tribunal as to why he would not attend a three self patriotic church in China. The Tribunal notes that the applicant had referred in his statement in support of his protection Visa application to why he said he would not attend the three self patriotic church in China but his answers to the Tribunal during the hearing did not indicate or suggest that the applicant had any knowledge of the three patriotic church in China. His answers to the Tribunal were not consistent with his claim in his statement about this issue. When asked about the details regarding his claims that hymns had been song and Bible stories told at the house gatherings he had attended he claimed he had a bad memory. He also said he could not remember any prayers from those occasions. He was asked about his claim in his statement he felt the eternal life by engaging in Christianity. He said by way of explanation, words to the effect, that "pray, God can bless us" and give "life". He said that his wife attends family house church gatherings in China since he has been in Australia but that she had not attended these very much before he came to Australia.

1. The Tribunal asked the applicant about the significance of Christmas to Christians. He said it was "like new year" and also said "it's also a festival" and he said he could not explain it. The Tribunal notes that the applicant did not mention Jesus Christ in the context of Christmas. He was asked about the significance of Easter to Christians and responded by saying "something like nail on the cross" and said he could not explain further. He was asked about the significance of Jesus Christ to Christians and he said words to the effect "if you believe in Jesus you will gain the life it's – good to the people in every respect". He provided no real details to the Tribunal beyond that response.

2. He was asked if anyone had explained the delegate's record of decision to him. He said no one had explained it to him and he had not seen it. He said a friend had written his statement in support of his protection Visa application but that friend had subsequently returned to China and he claimed that an agent had helped him complete his application.

3. He said he did not have a Bible and that his wife had a Bible in China but that he did not read that Bible. He was asked if he was able to tell any stories from the Bible to the Tribunal and he said he was not able to tell any stories. He claimed he had only read the Bible a few times when he had attended at the house gatherings and that he was not really interested in reading the Bible. The applicant’s evidence suggested that he had no interest in the Bible. He did not have a Bible in Australia. He said he did not engage in any private religious studies in China but claimed his wife did.

4. He was asked about his claims in his statement in support of his protection Visa application. He told the Tribunal that he had not been involved in politics in China and he had not been involved in any protest movement to China. He did not suggest he had been involved in any activities in relation to democracy movements or in relation to freedom of speech issues in China. He said that apart from his claim that he had been arrested once at a house church gathering he had not had any difficulties with government authorities in China and he had not been arrested by the police before that claimed incident and he had never been taken before a court in China.

5. The Tribunal noted that the applicant had claimed in his statement that he had been charged in April 2012 with attending cult activities. He told the Tribunal that he had no documents in relation to the claim that he had been charged and that he had not attended before a court on that occasion but he claimed he was fined(but did not have any receipt for the payment of that fine) and he claimed he was also beaten by the police on that occasion.

6. He was asked as to what happened when he had been detained by the police and he said there had been a gathering at [Mr A]’s house and that the police came and took him and the others to the police station where he was confined overnight and then subsequently fined and released. He said his friend had been confined longer and fined more because he had organised the meeting. As indicated he told the Tribunal that there were no documents and no court proceedings associated with this claim. He claimed that he was beaten and he said that a police officer had grabbed his feet and slapped his face and forced him to give a statement about what they had been doing at the friend's house and about going to a house church. He said he had been slapped a few times but nothing serious had happened to him and he had not been hurt and did not require medical treatment after he was released. He claimed that he then did not dare to attend a house church again after he was released. He claimed that he was warned by the police not to attend more meetings of the house church and that the police had paid attention to him (in terms of monitoring him).

7. He claimed that in February 2013 there had been a house church gathering in his house which he had not attended because he'd been looking after his sick mother. He claimed that the police had arrested his wife and friends and that his wife had been confined for a few months because she had organised the house church gathering and that she had been fined. He said he did not know how many people had been arrested on that occasion. He claimed his wife had been not allowed to sleep in jail and she been made to confess and that she was beaten. He said that his wife had not been charged and had not been taken to court but that she had been fined. He claimed she had been detained for three months. He did not claim that she required any medical treatment after she was released. He did not know any details about the police who had been involved and arrested and detained his wife and the others on that occasion. He told the Tribunal that his wife had applied for a passport after she had been released but that the passport had not been issued to her. He claimed his wife had told him not to go back to China after he came to Australia because the police would arrest him.

8. The Tribunal noted that the applicant told the Department delegate that his wife had been arrested in August  2013 but claimed to the Tribunal and in his statement that it had been February 2013. He said that he knew it was 2013 but could not remember the exact time but thought it was around February 2013. He said he did not visit his wife in jail because he was not allowed to and he also told the Tribunal that he could not remember the names of any of the other people who were arrested with his wife on that occasion.

9. He claimed his wife had told him around February or March 2014 that the police had told his wife that the applicant should return to China. He claimed that the police had asked his wife about him since since that date but that he could not remember the details. He said his wife still practised in the house church but she did so secretly

10. the Tribunal asked him further questions about his beliefs and if he regarded himself as a Protestant. He responded by saying he was a half Christian because he only had half knowledge and he had no knowledge about Protestant Christianity. As indicated elsewhere in these reasons the Tribunal notes the description in the March 2015  DFAT thematic report that “house” churches are part of unregistered Protestant organisations in China.

11. He was asked if he returned to China how he would practice his religion and he said he would not dare attend a house church and then said he was not sure that he would attend a house church. He again confirmed to the Tribunal that he was not familiar with the concept of baptism and did not know if his wife was baptised.

12. He was asked if he had any comments about the delegate's decision in relation to his application. As noted he told the Tribunal that it had not been explained to him and he had not seen it. The Tribunal referred to the delegate's findings which are summarised on page 8 of the delegate's record of decision and that the delegate had not accepted a number of the applicant’s claims and the Tribunal referred to those issues. The applicant said he had no comments to make on the delegate's findings.

13. The applicant said he could not relocate in China to avoid harm because he would face the same difficulties anywhere in China. He said he wanted to remain in Australia because Australia was a good place and he felt at home in Australia and he wanted an opportunity to stay in Australia.

14. The Tribunal referred to country information contained in the DFAT country report for China dated March 2015 and the DFAT thematic report for unregistered religious organisations and other groups in China dated March 2015 and a background paper available to the Tribunal dealing with Protestants in China dated August 2015. In relation to the country report the Tribunal noted that the report indicated that there were around 100 million religious believers in China including over 23 million Protestants. The thematic report also referred to a similar number of religious believers in China and the report noted that unregistered Protestant Christian organisations had members totalling between 70 to 100 million. That report indicates that the state administration for religious affairs(SARA) in China permits friends and family to hold small informal prayer gatherings without official registration and that there has been a proliferation of a sizeable unregistered Christian community in both rural and urban China and that includes house or family churches (for Protestant organisations) and underground churches for Catholic organisations. The report indicates that house churches can be found across China and vary in size and  religious practice. Gatherings of 30 to 40 people are generally tolerated although the Department is aware of cases where gatherings of fewer people have attracted negative attention by authorities but on the other hand there are also some house churches that number in the thousands and are able to operate with little to no interference from local authorities. The report indicates that a number of house churches are known to restrict their own size and activities to avoid official attention. The report indicates that members of both unregistered and registered religious organisations can face adverse attention by authorities in particular situations. Those situations include where those organisations have links with foreign influences or are  critical of the government or advocate for issues considered to be political or sensitive by the government. Difficulties can also arise where the organisations belong to large and potentially influential networks or are engaged in other criminal activities or are operating in provinces where corruption is prevalent and the potential for extortion and encountering difficulties with local authorities is potentially higher.

15. The report indicates that the three self patriotic movement was established in 1949 and in essence is China’s official Protestant church. The report indicates that unregistered Protestant churches tend to have more theological freedom than state sanctioned churches but risk adverse treatment by authorities due to their unregistered status. The report indicates that members of unregistered Protestant church organisations can experience harassment and raids and destruction of church property or might be pressured to join government sanctioned religious organisations and can face occasional violence and criminal sanctions particularly in response to land disputes with local authorities. The report indicates that some members of house churches are able to move freely between registered and unregistered churches. The report refers to the Department being aware of police raids imposed on at least eight unregistered Protestant churches in one province in September 2014 and is also aware that in 2013 unregistered churches in several other provinces were forcibly closed because they refused to register with the state sanctioned three self patriotic movement. The report also referred to other difficulties that have occurred in particular situations where members of unregistered churches faced difficulties with authorities.

16. The background paper referred to the situation for unregistered churches in China and noted that most Protestant churches exist in a grey area where they are not legal but neither are they interfered with by the government. That paper noted that the US Department of State had reported that SARA has posted a policy on its website acknowledging that family and friends have the right to meet at home for worship including prayer and Bible study without registering with the government (see US Department of State 2014 report for China-International religious freedom report 2013, 28 July, section 2, paragraph 2). That US State Department report also indicated that some house church members had been reported as saying that they now had more freedom than in the past to conduct religious services as long as they gathered in private. The report indicated that congregations had become adept at working within the regulations such as by ensuring gatherings were of fewer than 25 people. A commentator (Wielander ,G.2013, an introduction to Chinese Christianity today: Key questions and issues, published in “Christian values in Communist China, contemporary China series,Routledge,e-book) on these developments in China who was referred to in the report/background paper said that most congregations are no longer bothered by the authorities as far as their worship activities are concerned (pages 17 to 18 of that publication/article).

17. The background paper however refers to “China aid” reporting that there had been a significant change in 2014 as the Chinese Communist Party had adopted the most severe suppressive measures since the cultural Revolution by targeting the three self patriotic movement churches in addition to house churches and that a government-sponsored campaign to suppress and eradicate the house church movement had been reported across China (China aid Association 2015, China aid 2014 annual report-religious and human rights persecution in China, 30 April,page 9). That information refers to numerous house churches being forcibly closed and 100 church buildings demolished and the report/background paper appears to indicate in context that crackdown relates to larger gatherings as opposed to the gatherings of congregations with fewer than 25 members that have been referred to. The background paper also referred to factors which were likely to increase the chance of official action against a church or group and those factors were similar to the matters identified in the thematic report which has been referred to in these reasons. In that context a commentator ( David Schak, 2011, Protestantism in China-: a dilemma for the party state, Journal of current Chinese affairs volume 40) indicated that factors that could lead to interference in a churches activities included a real or perceived threat to social stability and party control in China. He also claimed that the government did not fear small gatherings but did not want large organisations of people that might become a force against it. Other factors included the visibility of the religious organisation in the context that the authorities preferred house churches to be inconspicuous and the congregations should remain small. Local officials attitudes and the particular agendas of local officials was also a factor to be considered in terms of action that might be taken against unregistered churches in particular locations.

18. The applicant provided no comments in relation to the information raised by the Tribunal.

19. The Tribunal raised with the applicant its concerns about aspects of his claims and his evidence. The Tribunal told the applicant it had a concern that he did not have a well-founded fear of harm if he returned to China based on his claim that he practised in a house church and was a Christian. The Tribunal indicated it had a concern that the applicant was a Christian as he claimed. The Tribunal indicated that the evidence did not indicate to the Tribunal that the applicant was a Christian. The Tribunal noted that the country information that had been referred to did not generally suggest that there were difficulties for house church gatherings in China where relatively small numbers of people gathered. The DFAT thematic report indicated that gatherings of 30 to 40 people were generally tolerated. The Tribunal raised its concern about inconsistent and vague evidence provided by the applicant to the Tribunal in relation to his claims and the evidence he had given to the Tribunal and the evidence that he had given to the Department delegate .The Tribunal was also concerned about the applicant’s credibility in relation to certain aspects of his claims. The Tribunal noted that the applicant’s statement in support of his application suggested he had attended more house meetings but he  told the Tribunal he had only attended two meetings and he had also indicated to the Department delegate that he had attended 10 meetings.

20. The applicant provided no comments in relation to the issues raised by the Tribunal

21. The Tribunal asked the applicant if he would like some additional time to provide any further comments or submissions to the Tribunal. He indicated he would like some additional time and  the Tribunal asked what he would be intending to provide in relation to his claims. He responded “something useful” and was vague about what information or materials he intended to provide and said he did not know if his family might post him something. The Tribunal indicated it was not clear why he was asking for additional time but allowed one week until 14 April 2016 to provide any further submissions or comments or information to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. On the basis of the materials and information provided to the Department and available to the Tribunal the Tribunal accepts that the applicant is a Chinese citizen and that his identity is as he claims it to be. The Tribunal accepts on the basis of the information and materials provided that the applicant does not have a right to enter or reside temporarily or permanently in any other country apart from China. The Tribunal accepts that China is the applicant’s country of nationality for Convention purposes and is the receiving country for complementary protection purposes.

23. The Tribunal is not satisfied as to the applicant’s claims that he has a well-founded fear of persecution if he returned to China based on his claims and his evidence to the Tribunal. The Tribunal is also not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and to some aspects of his claims.

24. The applicant’s claims to fear harm are referred to elsewhere in these reasons. The Tribunal has considered the applicant’s claims that he fears harm if he returned to China on the basis that he practised Christianity in a house church and he claims to be a Christian. The Tribunal has referred to the applicant’s evidence about his claim that he is a Christian. In essence the applicant’s evidence is that he attended two house church gatherings in China. He claims to have physically attended more gatherings but did not stay at the gatherings and simply walked in and walked out. He claimed he did not attend more gatherings because he thought the police would raid the gatherings. He told the Tribunal he did not read the bible at home even though he claimed his wife owned one. In essence he told the Tribunal he was not really interested in reading the bible. He claimed he had read the bible at the 2 house gatherings he had attended. He claimed there were between 8 and 10 people at those gatherings but he did not know the names of the other attendees apart from his friend who had introduced him to the house church gatherings. In essence he told the Tribunal that he had become involved in attending two house gatherings with his friend because he was having employment difficulties and was drinking and fighting with his wife and had family problems.

25. He told the Tribunal he was a Christian but did not know the differences between being a Protestant and a Catholic in terms of Christianity. He told the Tribunal that he did not know what baptism was and was not familiar with the concept. He struggled to provide any real details about why Christians believed in Jesus Christ, other than to indicate that if a person believed in Jesus that person would gain the life and it was good for people in every respect, and struggled to provide any explanation for the religious significance of Christmas and Easter to Christians. He said Christ taught what is good and what is love but did not expand on those comments to the Tribunal. The Tribunal noted that when asked about why he came to Australia and why he wanted to remain in Australia that he did not refer to religious freedom or make any comments that indicated that religious freedom and religious issues were reasons why he came to Australia or why he wanted to remain in Australia. The applicant’s evidence about those issues has been referred to elsewhere in these reasons. He was unable to tell the Tribunal about any prayers or hymns that he claimed were referred to in the two house gatherings that he had attended. He did not suggest to the Tribunal that he could provide any details about any bible stories. He claimed that he had attended some church services since he had been in Australia but was overall vague in terms of the details about those activities and was unable to name the church where he claimed to have attended those services. He said he did not attend church services regularly in Australia and he said that he attends on Sundays with friends if he is available to do so. The applicant’s evidence about why he did not attend the three self patriotic church in China has been referred to elsewhere in these reasons but in essence, notwithstanding his claims in his statement, he said he had no knowledge of that church and he didn’t want to attend that  church.He did not indicate to the Tribunal that he had any real knowledge of that church or gave the Tribunal any religious or philosophical reason why he would not attend the church.

1. The Tribunal has referred to inconsistencies in terms of the applicant’s claims and his evidence. The applicant’s statement in support of his protection Visa application is suggestive of him having attended more than two house church gatherings in China and his evidence to the Department delegate, which has been referred to elsewhere in these reasons, indicated that he had attended around 10 house church meetings. The Tribunal has referred to vague aspects surrounding the applicant’s claims and his evidence. It has also referred to his evidence in relation to his claims that he is a Christian. The Tribunal has also referred to the applicant’s claims that he was arrested at a small house church gathering and detained and released after being detained for one night and had to pay a fine. He claimed that he was forced to sign a statement on that occasion and he claimed that he was mistreated on that occasion. He did not indicate to the Tribunal that there were any documents in relation to that detention and fine and he told the Tribunal he had not been taken before any court. In his statement he claimed that he had been charged with being involved with attending cult activities. He told the Tribunal he had not been charged in relation to that incident but had been fined and released. The applicant’s evidence about the two house gatherings that he had attended was that they were very small in nature and consisted of 8 to 10 people. The country information that has been referred to elsewhere in these reasons indicates that gatherings of that size would generally not attract adverse police or Chinese authorities attention. His evidence about what he claimed happened to him when he was mistreated by the police was overall fairly general in its terms.

2. The Tribunal notes that the applicant was able to obtain a passport after this claimed incident. He told the Tribunal that he had used a friend to obtain his passport because he claimed that he was on a blacklist but his evidence to the Tribunal was that he claimed he had paid his friend but the applicant was not aware if the friend had paid Chinese police or Chinese authorities in order for the applicant to be provided with a passport. He did not indicate that he had had any difficulties travelling in and out of China when he went to [Country 2] and [Country 1] or when he came to Australia. That evidence does not indicate or suggest to the Tribunal that the applicant was of any interest to Chinese authorities in terms of travelling on a passport in his own name and is not consistent with the applicant’s suggestion that he would be a person of interest to Chinese authorities. He claimed his wife was on a blacklist and had not been able to obtain a passport because she had organised a house church meeting in the applicant’s home. He claimed she was arrested and detained and mistreated on that basis and was detained for three months and fined. He claimed that there were no documents in relation to his wife’s fine and detention and he claimed she was also not taken before a court in China. He claimed he was not allowed to visit her when she was detained for three months. He claimed his wife had warned him since he had been in Australia that he should not return to China because he was of interest to the Chinese police because of his house church activities.

3. He told the Tribunal that he could remember the incident involving his wife was in 2013 but was very vague about the actual month when she was detained but nominated February after the Tribunal had asked him about the timing of his wife’s detention and arrest. The Tribunal notes that the applicant travelled to [Country 1] and [Country 2] for about two weeks in 2013 but did not seek protection in either of those countries. In essence he told the Tribunal that a friend had told him that if he travelled first to [Country 1] and [Country 2] that it would be easier for him to travel to Australia. He told the Tribunal that he wanted to seek protection in Australia. He did not claim that he had any further difficulties with Chinese authorities after his claim that he had been detained in April 2012. He told the Tribunal that he had only attended two small house gatherings between 2010 and 2012. He told the Tribunal he attended no house church gatherings in 2013. He obtained his Chinese passport [in] 2013 and travelled to [Country 1] and [Country 2] in 2013 before he came to Australia in January 2014.

4. The Tribunal after considering the totality of the applicant’s claims and his evidence and having had regard to aspects of his evidence that were vague and inconsistent does not accept that the applicant is a credible or truthful witness in relation to his claims. The Tribunal does not accept that its assessment of the applicant’s credibility is because he claims to have a poor memory and by inference sought to explain vague and inconsistent aspects of his evidence on that basis. The Tribunal’s assessment of the applicant’s credibility is based on its assessment of the totality of his evidence in the context of his claims. The Tribunal after considering the totality of the evidence and the applicant’s claims and having regard to relevant and available country information that has been referred to does not accept the credibility of the applicant’s claim that he is at risk of harm if he returned to China on the basis that he practised in a house church and that he is a Christian.

5. The applicant in his evidence to the Tribunal did not indicate to the Tribunal that he had any interest in Christianity other than to claim that he was a Christian. His evidence did not suggest to the Tribunal that he had any interest in the Bible and his evidence about his claims that he attended church services in Australia have been referred to elsewhere in these reasons. He told the Tribunal that in China that apart from the two house gatherings he did not undertake any private studies of Christianity. He told the Tribunal that if he returned to China that he was not sure if he would attend any house churches and claimed that he dare not attend house church services (presumably on the basis that he claimed he was afraid of the police raiding those services). The Tribunal’s assessment is that the applicant has no interest in Christianity and displayed no real knowledge of Christianity in terms of basic and fundamental Christian beliefs. That evidence has been referred to elsewhere in these reasons. The Tribunal has considered that the applicant claimed to have had only very limited exposure to Christianity and on that basis presumably his knowledge would be limited. However the applicant claimed that he had developed an interest in Christianity in 2010. However he had only attended two house church meetings in China. He did not indicate to the Tribunal that he had any interest in the Bible and could not nominate any prayers or hymns that were said or sung at the house gatherings. He was not familiar with the concept or importance of baptism in terms of his evidence to the Tribunal. His evidence about baptism seems to be inconsistent with the evidence that he had given to the Department delegate about that aspect. That aspect has been referred to elsewhere in these reasons. His evidence about the significance of Christmas and Easter to Christians did not indicate to the Tribunal that he had any real knowledge in relation to the significance of those festivals to Christians. He displayed no knowledge of any differences between Protestant and Catholic Christianity and displayed no knowledge or awareness of those Christian faiths. As indicated those aspects are significant in terms of unregistered religious organisations in China (as indicated in the DFAT thematic report). The Tribunal notes the applicant’s claims in his statement in support of his application. The Tribunal after considering the totality of the applicant’s evidence and his claims, that have been referred to elsewhere in these reasons, does not accept that the applicant is a Christian or that he has any interest in Christianity or that he would attend any Christian activities should he return to China either now or in the reasonably foreseeable future. The Tribunal, on the basis of its assessment of the applicant’s credibility and its assessment of the overall evidence, does not accept that the applicant did not attend more house church services in China because he was afraid of police raids. The Tribunal believes that it is reasonable for it to assume that the applicant would have been able to provide more knowledge about basic Christian beliefs and practices if he was a Christian who had become interested in Christianity in 2010 as he claimed. The Tribunal on the basis of its assessment of the overall evidence and the applicant’s credibility does not accept that the applicant has attended church services in Australia and does not accept that he would be at risk of a real chance of serious harm on that basis if he returned to China either now or in the reasonably foreseeable future.

6. The Tribunal has considered the totality of the applicant’s evidence and his claims and has  had regard to its assessment of the applicant’s credibility and has had regard to available and relevant country information. The Tribunal accepts that the DFAT country information and the background paper that has been referred to elsewhere in these reasons provides recent and credible information relevant to the applicant’s claims.

7. The Tribunal after considering the totality of the evidence and having considered the applicant’s claims both individually and cumulatively does not accept that the applicant faces a real chance of serious harm if he returned to China either now or in the reasonably foreseeable future on the basis of his claim that he is a Christian who practised in a house church. The Tribunal based on its assessment of the evidence that has been referred to and its assessment of the applicant’s credibility and after having regard to available and relevant country information that has been referred to does not accept that the applicant is a Christian or that he practised in a house church in China. The Tribunal in those circumstances does not accept that the applicant attended any house church gatherings in China or that he was arrested and detained and fined and mistreated by the police because he had attended a house church gathering in China. The Tribunal in those circumstances does not accept that the applicant was of any interest to Chinese authorities because he claimed he attended house church gatherings. The Tribunal because of its concerns about the applicant’s credibility and its overall assessment of the evidence does not accept his claims that his wife was detained and mistreated and fined and imprisoned because she organised a house church meeting. In those circumstances the Tribunal does not accept that the applicant’s wife was refused a passport because she had been involved in organising a house church gathering. The Tribunal because of its concern about the applicant’s credibility and its assessment of the evidence does not accept that the applicant paid a friend in order to obtain his passport in China. The Tribunal because of its concern about the applicant’s credibility and its assessment of the evidence also does not accept that the applicant has developed any interest in Christianity since he has been in Australia. The applicant did not claim that he was involved in China in any activities in relation to the democracy movement or in relation to freedom of speech issues that would put him at risk of a real chance of serious harm. The Tribunal does not accept that the evidence indicates that the applicant faces a real chance of serious harm if he returned to China for any convention based reason based on his claims.

8. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that he faces a real risk of significant harm. The Tribunal has considered the applicant’s claims and the evidence and available and relevant country information in relation to the applicants claims. It has also considered its assessment of the applicant’s credibility. The Tribunal has referred elsewhere in these reasons to its assessment of the applicant’s claims and the evidence and the available and relevant country information. The Tribunal has considered the definition of significant harm contained in the Act as well as the relevant definitions contained in s.5(1) of the Act. The Tribunal after considering the evidence that has been referred to elsewhere in these reasons and the country information and its assessment of the applicant’s credibility in relation to his claims 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 China that there is a real risk that he will face significant harm. The Tribunal does not accept that he will be arbitrarily deprived of his life or that the death penalty will be carried out on him. The Tribunal is also not satisfied that the applicant will be subjected to torture or that he would be subjected to cruel or inhuman treatment or punishment or that he would be subjected to degrading treatment or punishment as defined in the Act. As indicated elsewhere in these reasons the Tribunal does not accept, based on its assessment of the evidence, that the applicant would engage in any house church gatherings in the future if he returned to China. As indicated the applicant did not claim that he was involved in any other activities that would bring him to the adverse attention of Chinese authorities and that would cause him to face a real risk of significant harm on that basis if he returned to China.

   Overall Summary

9. 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).

10. 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).

11. 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

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

    James Jolliffe
    Member