1512987 (Refugee)

[2018] AATA 570

1512987 (Refugee) [2018] AATA 570 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512987

COUNTRY OF REFERENCE:                  China

MEMBER:Roslyn Smidt

DATE:1 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2018 at 4:42pm

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Family detained – Confiscation of the family home – Failed to seek protection in timely fashion – Evidence distorted, confused and unpersuasive – Credibility

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), or (c), 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who is a citizen of China, applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] September 2015.  The applicant appeared before the Tribunal on 26 February 2018 to give evidence and present arguments.

   THE RELEVANT LAW

3. 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.

4. 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).

5. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND

8. The applicant is [an age] single man from Fujian Province in China. He arrived in Australia [in] May 2008 on student visa. He ceased studying after about two and a half months. His student visa expired [in] March 2011 and he became an unlawful entrant. [In] October 2014 he applied for a protection visa.

9. The applicant’s parents and [number] siblings remain in China. At the hearing the applicant stated that his father had been part owner of a [business] which employed a staff of between [number] workers. His father [runs the business]. The business was quite successful and enabled his father to cover the costs of his student visa and studies. However, his father later faced problems and in October 2014 he ceased to be part owner of the [business]. He now sometimes works for other people.

   SUMMARY OF CLAIMS

10. The applicant claims that he comes from a Christian family and attended a family church on Thursday and Sunday in China with his parents from about the age of [age]. The church continues to operate in China and his parents continue to attend.

11. The applicant claims that he was detained and ill-treated once or twice before coming to Australia because of his involvement with this church.  He also claims that his parents were also detained before he departed China and that his father has been detained, lost property and been driven out of business since his departure from China because of his attendance at a house church.

12. The applicant claims that he remained in Australia after he ceased to be a student in 2008 because he was afraid that he would be arrested or face other serious harm if he returned to China.

13. The applicant claims that he has attended various Mandarin speaking churches in Australia since about October 2008.

14. The applicant claims that if he returned to China he would attend a house church and that he would therefore be at risk of serious or significant harm from the Chinese authorities.

    COUNTRY INFORMATION

15. The following overview comes from the DFAT Thematic Report Fujian Province, People’s Republic of China (16 December 2016).

16. Large numbers of people in Fujian worship in Three-Self Patriotic Movement (TSPM)- and Catholic Patriotic Association (CPA)-linked places of worship. Asia Harvest, a Christian US NGO, estimates that there were 1.88 million TSPM-linked worshippers in Fujian and 908,000 CPA-linked worshippers in 2011. More recent data on the number of TSPM- and CPA-linked places of worship in Fujian is difficult to obtain. However, TSPM- and CPA-linked places of worship (including prominent crosses outside places of worship) are clearly visible in Fujian. In-country contacts suggest that there are approximately 120 CPA-linked places of worship across Fujian and over 200 TSPM-linked places of worship in and around Fuqing City alone (including one that holds over 2,000 worshippers at any one time).

17. DFAT assesses that direct interference by local authorities in the operations of TSPM- or CPA-linked churches in Fujian rarely occurs (particularly compared to other areas in China) and that worshippers at TSPM- and CPA-linked churches are generally able to openly practice their religion, including with a significant amount of public visibility (by attending clearly identified churches, for example) without interference. Beyond basic operations, some TSPM- and CPA-linked churches in Fujian also provide social services, such as palliative care, which in-country contacts said was encouraged by local authorities.

18. Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.

19. Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.

20. Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches that operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.

21. Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.

22. Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

    Religious practices in China

23. For the following reasons I found the applicant’s claims regarding his religious practices in China and the problems he faced because of them to lack credibility.

24. In the first place, the applicant did not apply for protection until nearly six and a half years after he arrived in Australia, about six years after he ceased to attend classes as required by his visa and over three years after his visa expired.  At the hearing I observed that he must have been aware that his student visa only permitted him to remain in Australia as long as he continued to study and asked why he had remained in Australia after he stopped attending classes.  He said that he feared he might be arrested and jailed if he returned to China. I asked why he had not approached anyone to seek help or advice given these circumstances. He said that he was young and had no family in Australia and did not know what to do, so he thought he would just work and see what happened. I asked why he had not sought advice or assistance from anyone at the Mandarin speaking churches he had attended since 2008. He said that he had been too afraid to seek help from anyone.  I asked what had prompted him to apply for protection in 2014. He said that a friend had alerted him to the possibility of obtaining a protection visa.

25. I advised the applicant that it was my understanding that knowledge of the possibility of seeking protection was widespread in the Chinese community, and that Mandarin speaking migration agents advertised this in the Chinese media. I advised him that in these circumstances his failure to seek protection until about six years after he arrived in Australia cast doubt on his claims. He maintained that this claims were true.

26. I do not accept that the applicant remained unaware of the possibility of applying for protection until six years after his arrival in Australia. Nor do I accept that he was afraid to ask anyone, including others in the Chinese community or people at the churches he claims to have attended prior to 2014, for advice or assistance. In the absence of any plausible or persuasive explanation for his failure to seek protection in Australia in a timely fashion I am not satisfied that he genuinely feared serious or significant harm in China at that time.

27. Secondly, I found the applicant’s evidence regarding the problems he faced in China because of his claimed attendance at a house church confused and unconvincing. In a written statement provided on [date] October 2014 he claimed that he and his mother were detained in August 2007 and ill-treated while in detention. During his interview with the delegate [in] July 2015 he repeated this claim[1] and added that his father had paid a large amount in bail to secure their release. At the hearing he said that he had been detained for [number] days in October 2007 and detained again for [number] days in December 2007. I noted that he had previously mentioned only one detention prior to leaving China. He said that the number of times he was detained was not important and it did not matter whether it was one or two or three detentions. I advised him that while I acknowledged that it was not uncommon for applicants to be confused about details such as the precise date of past events I had difficulty accepting that he would have been unable to recall whether he had been detained once or twice. He maintained that his claims were true.

    [1] The delegate’s decision indicates that the applicant stated that he was detained [in] December 2007, but I have listened to the tape and this is not correct. He stated he was detained [in] August 2007.

28. I do not accept that the applicant would have been confused about the number of times he was detained prior to leaving China. If he had been detained twice I believe that he would have stated this clearly in submissions made prior to the hearing. In light of his failure to seek protection in a timely fashion and his willingness to concoct claims and distort evidence (see also below), I am not satisfied that he was detained at any time for practicing his religion prior to leaving China.

29. Thirdly, I found the applicant’s evidence regarding the problems his parents faced following his departure from China confused and unpersuasive.

30. In written submissions provided with his protection visa application he said that after he left China the authorities began to use illegal methods to try and make his parents give up their beliefs. In September 2008 the local government demolished his parents’ home to build a road and did not pay any compensation. When his father went to the local authorities to ask for an explanation he was told he would not get compensation because his house had been used for illegal gatherings. The authorities also reported him to the police who detained and beat him.  He was forced to admit that he had been involved in illegal gatherings and promise to stop. 

31. During his interview with the delegate he said that his father began to face problems after August 2007. About a month after the applicant arrived in Australia his [workplace] was confiscated and he was unable to [work]. This happened because the authorities knew he was involved in the church.  Following this about [number] homes, including his family home, were demolished by the local authorities. His parents were offered compensation of [amount] RMB but they refused this as it was insufficient. When they attended a meeting with the local authorities they were told that they would not receive any compensation because the house had been used for illegal gatherings. They moved to live with an [relative] in another village. The police reported his father to the local council and he was detained for [number] days and ill-treated to force him to admit his guilt. He was charged with disrupting government work and the harmony of society.

32. At the hearing I asked the applicant about the problems his parents had faced after he left China. He repeated the claim that his father’s business had been disrupted and claimed that his [workplace] had been destroyed. He also claimed that his parents had been detained [in] August 2014 while they were attending a meeting of their church at someone else’s house. I noted that the applicant had spoken about his father being detained when he complained about the lack of compensation for the demolition of his house, but he had never claimed that his parents had been detained while attending a church gathering after he left China. The applicant maintained that his claims were true and said that everything was linked to his family’s involvement in a house church.  I asked how he knew that the problems relating to compensation were related to religion. He said that it was always the same police who caused problems for his family and added that even if these problems were not linked to his father’s religion the police were still causing problems for him.

33. I accept that the applicant’s family home was taken by the local authorities in order to make way for a road. I also accept that his father may have been denied adequate compensation and detained because of a dispute with local authorities in relation to these developments. However, I do not accept that his parents were detained at a gathering of their house church in August 2014. If this had been the case I believe that it would have been mentioned in his earlier submissions.

34. Fourthly, the applicant’s claim that he was a committed Christian prior to arriving in Australia is at odds with his evidence that he did not attend church in Australia until at least six months after he arrived. If he was such a committed Christian that he had continued to attend gatherings of his church in China until he left for Australia, despite being detained and ill-treated, I believe that he would have found a suitable church to attend as soon as possible after he arrived in Australia. While I would not have rejected his claims for this reason alone I find it another indication that he has not provided an honest account of his religious beliefs and activities prior to his arrival in Australia.

35. At the hearing I noted that the delegate had accepted that the applicant had been a practicing Christian in China and had been detained because of this. I advised him that while I had not yet reached a conclusion on these claims in light of his failure to lodge an application in a timely fashion and the other issues raised during our discussion I had doubts about this claim and asked if there was anything further he wished to say. In essence he maintained that his claims were true.

36. After considering all of the relevant evidence I am not satisfied that the applicant was a practicing Christian in China. As discussed above, his failure to apply for protection for a number of years indicates that he was not fearful of harm when he arrived in Australia. Furthermore, his failure to begin attending church until at least several months after his arrival in Australia suggests that he was not a committed Christian at that time. Finally, as discussed above, there are a number of problems with his evidence regarding the problems which he and his family faced because of their claimed involvement in a house church. I find that the applicant has concocted the claims that he attended a house church in China. It follows that I do not accept that he and other family members were detained or that his father’s business was disrupted or destroyed or that his family were denied compensation when their house was acquired by the government because they belonged to an underground church.

    Religious practice in Australia

1. At the hearing the applicant said that he first attended church in Australia in [a suburb] in [State] and he continued to attend for about a year in 2009, but after that attended less often because he was moving around. In 2014 he moved to [another State] and began to attend a church in [a suburb] which later relocated to [Suburb 1]. He said that it was an Anglican church and was called the [name]. He said that he knew it was an Anglican church because that is what was written on the front of the church.  He could not recall the address of the church and explained that there was free transport from [a] Station which he used to get there. He said that he attended the church at least once a fortnight. He just prayed and listened to the priest and sometimes helped to clean up. He also read the Bible at home about once a week.

2. I advised the applicant that I had checked on the internet and the church appeared to be called [another name] and it was therefore not my understanding that it was an Anglican church. He said that they were the same thing. 

3. I asked the applicant to explain the difference between the Anglican Church and other Christian churches. He said that apart from Catholics there was no difference, just the names.

4. At both the delegate’s interview and the hearing the applicant demonstrated some knowledge and understanding of Christianity and the Bible. At the hearing he said that Jesus was the son of God who died for people’s sins. When asked if he knew any of the stories in the Bible he spoke about Jesus being baptised by John and the story of the bread and fishes in the Gospel according to Mathew. He was able to name the four gospels and was aware that they were in the New Testament. He was able to give a general account of the last supper and the Ten Commandments. He knew that Genesis was in the Old Testament, that it gave an account of creation and contained the story of Adam and Eve.

5. At the hearing I noted that it appeared that the applicant attended church about once every two weeks and read the Bible at home once a week. I also noted that he had stated that all Christian churches were the same and did not appeared to be concerned about the particular church he attended. I advised him that it was my understanding that he would be able to continue to practice in this way in Fujian. He said that it was not possible to establish independent churches in China and he could not attend a registered church because he believed in God and registered churches were run by the authorities, and they believe that they are greater than God. I advised him that it was my understanding that ministers and worshippers at registered churches also believed in God. I also advised him that it was my understanding based on information from DFAT that some house churches in Fujian were tolerated. I noted that DFAT had advised that it was generally people who engaged in active and public proselytising, or who were perceived to openly criticise the Chinese Community Party or who led large unregulated congregations, who were at risk of experiencing harm, and observed that he did not appear to fit into any of those categories. He maintained that he would be at risk of harm if he returned to China and added that in some villages the local authorities repressed all house churches. He added that his [relative] had died last year and he had been too fearful to return at that time.

6. I accept that the applicant has read the Bible or at least parts of it. I also accept that he has attended some church services in Australia. However, I strongly doubt that he is a genuine or committed Christian or that he would continue to practice as a Christian if he returned to China. As discussed above, I find that he concocted the claim that he was a practicing Christian and faced problems because of this in China. This does not reflect well on his overall credibility. Furthermore, I did not find his evidence regarding his attendance at church in Australia persuasive. He claims that he attended an Anglican church in [Suburb 1] which was called the [name]. As pointed out at the hearing the large Chinese church in [Suburb 1] is [another name]. It is not an Anglican Church and according to the pictures on its website, there is nothing on the building which suggests it is an Anglican church. There is also a [Suburb 1] Anglican Church. However, there is nothing on the website of this church which suggests that it conducts services in Mandarin. I have great difficulty accepting that the applicant would have been unaware of the fact that he was attending a [certain] Church and would have mistakenly have believed it was an Anglican Church, or that he would have failed to notice that the sign in front of the church clearly states that it is a [certain] Church and does not contain the word ‘Anglican’, if he had been attending the church regularly for a number of years. It appears that he has informed himself of some of the contents of the Bible and occasionally attended the church in order to enhance his claim for protection in Australia.

7. In any event, even if I accept that the applicant has become a genuine Christian since arriving in Australia, as discussed in the country information section above, registered churches in Fujian operate in a reasonably free manner, the government is frequently tolerant of small, unregistered churches and many people attend unregistered churches without suffering serious or significant harm.  As pointed out at the hearing, those most likely to experience problems because of their religion include people who proselytize, who criticise the government or government policies or who play leadership roles in large unregistered churches. The applicant does not fit into any of these categories.  Indeed, at most he has attended church every week or two and read the Bible at home about once a week, and there is nothing in the evidence which suggests that he would engage in any other religious activities if he returned to China. There is nothing in the evidence before me which suggests that there is a real chance he would face serious or significant harm on return to China if he continued to practice in this way by attending one of the many registered churches, or one of the numerous unregistered churches which are tolerated by the government in Fujian.  And given that he views all non-Catholic Churches as being the same there appears to be no reason why he would not be able to find an acceptable church and continue practicing his religion in the same manner as he does in Australia.

8. After considering all of the relevant evidence, I am not satisfied that the applicant would be denied the right to practice his religion if he returned to China or that he would face serious or significant harm if he continued to practice his religion in China in the same manner as he claims to have practiced since arriving in Australia. Nor is there any credible evidence which suggests that he would wish or attempt to practice his religion differently or in a manner which would give rise to a real chance of serious or significant harm. In reaching this conclusion I have noted his evidence that it is not possible to establish an independent family church in China. However, as noted above, many such churches exist in his home province of Fujian. Furthermore there is nothing in the manner in which he has practiced his religion to date which suggests that he would wish or attempt to do so.

   Confiscation of the family home

9. As noted above, I accept that the applicant’s parents’ home was demolished to make way for a road sometime in 2008. According to his evidence his father was detained briefly and charged with offences in relation to a dispute regarding payment of compensation. However, there is no suggestion that he was convicted of any offence or that he has faced continuing problems with the local authorities or anyone else because of issues relating to the acquisition of his home and payment or lack of payment of compensation. And there is nothing in the evidence which suggests that the applicant faces a real chance of suffering serious or significant harm on return to China for any reason as a result of the acquisition and demolition of his parents’ home in 2008.

   CONCLUSIONS

10. After considering the applicant’s claims both individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for any reason if he returns to China within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons in the Convention.

11. The applicant’s claims for complementary protection are the same as those put forward in relation to their claims against the Convention. After considering these claims individually and cumulatively I am not satisfied that he faces a real risk of experiencing significant harm in China.  Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the China, there is a real risk that he will suffer significant harm.

12. 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).

13. 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).

14. 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 criteria in s.36(2).

    DECISION

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

    Roslyn Smidt
    Member