1513047 (Refugee)

[2018] AATA 518

1513047 (Refugee) [2018] AATA 518 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513047

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2018 at 11:25am

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Fears harm – Mother organises underground churches– Economic claims – Previously held a student visa – Withdrew application for a permanent visa – No well-founded fear of persecution – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 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 and Border Protection (DIBP) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of the People’s Republic of China. He applied for the visa on [date] October 2014 and the delegate refused to grant the visa on [date] September 2015. He subsequently lodged an application for review of the decision on 23 September 2015.

3. The applicant appeared before the Tribunal on 9 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

3. 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:

4. 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.

5. 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’).

6. 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 DIBP –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.

Material provided to DIBP as part of the claim

10.Along with the usual forms, the applicant provided the following material to the department as part of his claim

• English translated statement of the applicant dated [October] 2014 which stated the basis of his claims

• Certified copy of his PRC passport issued on [date] 2008

• Certificate of baptism and confirmation at [Church 1] on [date] December 2009

• Photographs of the applicant at [Church 1] at his baptism and confirmation.

11.The applicant declared that he was a citizen of the PRC from Dandong City in the Liaong Province and was a Christian. He declared that there was no religious freedom in China and was asking for protection to be allowed to stay in Australia. In August 2005, his father was hospitalised [and] [his] mother prayed with the family daily for God to heal his father. His father made a recovery and that his mother truly believes in God. As a result of this recovery, his mother often went to house meetings and praised God and the applicant joined as well.

12.On [date] July 2007, the applicant was at a house meeting with his mother when police arrived. The police took the applicant’s mother, an elder and some aged members away for questioning. His mother was interrogated for more than 20 hours and was only allowed home once a [fine] had been paid. During this time, the applicant was grabbed by the police when questioned, was shoved into a chair and was hurt physically and mentally. The police warned the applicant that he would get arrested if caught participating in unlawful gatherings again.

13.Police increased surveillance on the family which the applicant found intimidating. His parents did not want him to get hurt again so his parents decided to send him to Australia to study overseas in a country with religious freedom.

14.He arrived in Australia on [date] August 2009 but he wasn’t worried at that time because he got to know the Chinese Church in Australia where he studied the bible and prayed. However, on [date] December 2010, his father called him and told him that his mother was arrested again because of organising a gathering at the family home. His mother was sent to a detention centre for three months and [fined]. His mother had been arrested for organising an illegal gathering at their house. His father also told him that police would come to the house and ask for his mother to report to the station from time to time. His mother continues in her beliefs about God. His parents told him not to come back to the PRC.

Interview with the Minister’s delegate

15.In his interview with the assistance of a Mandarin interpreter, the applicant adopted his written statement and said that there was nothing further to add to his claims.

16.The applicant stated that he started going to Church in October 2005 after his father got [severely injured]. Prior to 2005 he didn’t know anything about Christianity. He became interested in Christianity because he had a neighbour who believed in Christianity who would come and preach. He then decided to go to Church because it gave him hope. He was not sure of the Church denomination but knew it was Christian. He went to Church with his parents sometimes but other times they did not go as a family. Initially, the applicant would go to house gatherings and then started going to Church which was an approved government Church.  The priest from the registered Church was aware of these meetings which were attended by people who went to the registered Church, but were also attended by people who did not go to the registered Church.

17.On [date] July 2007, he was at a house gathering and police came. They arrested his mother who was released the next day. The applicant was not harmed in any way, but he was scared. After this incident, he continued to attend house gatherings and attend the registered Church, but the house gatherings were not at a fixed time because of fear of police monitoring.

18.Police continued to come to his family house to check on the house at various times. They asked about house gatherings. He continued to go to Church and attend gatherings because he didn’t think it was fair to stop his practice. He continued his practice when he arrived in Australia and attended [Church 1]. He goes to Church weekly, but said that he missed Church the previous Sunday because he was sick. As well as attending Church on Sunday, he goes to bible study which is after Church on Sunday. He got baptised on [date] September 2009 because he wanted to be a true Christian.

19.He told the delegate that he was advised by his father in December 2010 that the applicant’s mother had been arrested and was held for three months by police for holding a house gathering at the family home. He was fearful of being arrested by police if he returned to China. He claimed protection in Australia in 2014 because he didn’t know about protection visas before that time.

20.He told the delegate that he believes in God and that God is Jesus. Jesus was born in Israel and was a carpenter who began to preach the gospel because he knew it was his mission. Jesus told people that He is the way and the truth.

21.The delegate subsequently refused the claim for protection. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied that the applicant’s fear was well-founded.

22.The delegate was also not satisfied that the applicant had a real chance of being subject to significant harm should he be returned to the PRC and that the applicant was not a person in respect of whom Australia had protection obligations.

Tribunal hearing

23.At the Tribunal hearing with the assistance of a Mandarin interpreter, the applicant gave evidence that he came to Australia on a student visa [in] August 2009 to study English at an educational institution in Sydney, the name of which he could not remember. He found the course ‘beyond him’ and he was under financial pressure. He did not complete his course. The student visa was cancelled on [date] January 2010. He had been working [during] his course and despite some initial financial support from his parents, he was largely funding himself.

24.The applicant stated that after his student visa was cancelled, he did not do anything but stayed in Australia because he was scared of going back to the PRC. He told the Tribunal that he did not apply for any other visa apart from his protection visa that was lodged on [date] October 2014.

25.He stated that he ‘formally’ started practising Christianity once he came to Australia, but first started to get ‘in touch’ with Christianity’ while in China.

Findings, Analysis and Reasons

I am satisfied that the applicant is a citizen of the PRC

26.I make this finding on the basis of the applicant’s passport. The PRC is the country of reference for this case.

I am satisfied that the applicant is a Christian and that the grounds of his claim relate to religion

27.I make this finding on the basis that the applicant attended church services at both a government registered and religious gatherings in homes in China. I am satisfied that the applicant has continued with religious observance in Australia. Although the applicant’s evidence demonstrated an understanding of Christianity, I am not satisfied that the applicant is a devoted Christian who practices his faith without exemption. In the interview with the delegate, he told the delegate that he had not gone to Church the previous Sunday because he was ill. At the Tribunal, he told me that he did not go to Church the previous Sunday before the hearing because he had work. He had married at a government registry in Sydney and not in Church. He did bible studies in Australia with a friend but was not sure how many sessions he had with him. This would involve him going to his friend’s house, but the last time he went was three months ago and he couldn’t specifically remember what they discussed. He also went to [Church 1] because it was the closest church where Mandarin was spoken. He is clearly someone who is flexible in his religious practice and not a dogmatic Christian.

28.It is not the job of the Tribunal to assess whether someone is a ‘good Christian’, but the religious practices of an applicant is relevant to their future conduct should the applicant be returned to their country of nationality.

I am not satisfied that the applicant has a well-founded fear of persecution.

29.In the PRC, the applicant attended both a government-registered church as well as house gatherings. He was not involved in organising house gatherings but attended with his mother who was an organiser of the house meetings. He has not previously been detained and the only incident where he had direct contact with the authorities in China was when he was shoved into a chair when police attended a house church and arrested his mother. I accept having your mother detained would be frightening. There is no suggestion that the applicant will become more religiously active in the PRC than he is in Australia. He did not get baptised or confirmed in the PRC because he was young and not fully committed. I accept that a person who becomes a Christian may take some time to do so and that it is not instantaneous.

30.When asked about his religious practice should he be returned to the PRC, the applicant stated that he would go to a house church because he now thought that his nearest government registered church was Catholic, and that a government registered [Church] would be too far away for him to attend Church. He also stated that the many of the registered churches in his home town were closed so he could not attend them.

31.Integral to this is the delay in applying for protection in Australia which demonstrates to me that the applicant does not have a well-founded fear of persecution. In his evidence, the applicant stated that once his mother was arrested and imprisoned for three months in December 2010 he realised he would face persecution in the PRC for his religious beliefs. despite this, he did not apply for protection until [2014]. I do not accept his reason for the delay being that he did not know about protection and that he had no one to help him. He was married to his wife, went to his Church and was working. He had come to Australia on a visitor visa and would have made enquiries with the DIBP if he had genuine fears about returning to China.

32.While the applicant stated that he did not return to China because he was fearful, it is important to note that the applicant’s student visa was cancelled in January 2010. He then became liable to return to China. He gave evidence to the Tribunal that he did not return to China because he was fearful of such a return, but his evidence was that he only became fearful in December 2010. Between the cancellation of his student visa and December 2010, he remained in Australia and did not depart. As he was not fearful of a return to China during this time, there is no explanation for his failure to depart Australia apart from the fact that he simply did not want to return to China for reasons other than a belief in his religious persecution. I find it likely, based on the fact that the applicant is working, that his reasons to remain in Australia were economic reasons, and continue to be so.

33.I also have concerns about the truthfulness of the applicant. He presented as someone was willing to tell untruths or part truths if he felt that it would assist his claims.

34.When I asked the applicant whether he had applied for any visas other than his student visa and his subsequent protection visa, he told me he had not. When I put to him that it appeared he had applied for a [parmanent] visa (which was subsequently withdrawn) he told me that he did not know that he had applied for such a visa, and that his then-[relative] must have done it. When asked by me why he had not disclosed this, he said that he had no knowledge of it, but admitted he had signed documentation in support of the application. I found this lack of candour to be particularly troubling and suspect that the reason he did not disclose this application was an attempt to stop me from suggesting that his protection visa application was only lodged after he had exhausted another migration option, thereby undermining his claim.

35.The applicant also told me that the Mandarin language service at  [Church 1] was held at 8am on Sundays. However, when confronted with the conflicting account he gave to the delegate that the language service was at 9am on Sundays, he told me that he goes to the Church at 8am for the 9am service. I do not accept that explanation. The applicant was asked specifically what time the service was held and he told me it was 8am. According to its website, [Church 1] holds Mandarin language services at 9am on Sundays. The fact that the applicant got this mass time wrong indicates to me that he wished to convey to me genuineness to his application that was not a reality. I therefore have concerns about the truth of a lot of what the applicant says.

36.Be that as it may, and taking the applicant’s claims at their highest, I am not satisfied that this applicant, who was ‘shoved’ by the police in 2007, and whose mother was imprisoned for 3 months in 2010, is of any interest to the Chinese authorities. There was no evidence before me of police seeking out the applicant or of the applicant having any prominent role in a church in either China or Australia. Further, the applicant was able to depart China without incident, and there is no evidence that authorities in China are aware of the applicant’s attendance at Church in Australia. Even if Chinese authorities were aware of the applicant’s activities associated with his Christianity in Australia, I do not find that the applicant faces any real chance of serious harm if he were to be returned to China. As noted in the delegate’s decision, reports suggest that there are approximately 100 million Christians in China, and more than 3 million Christians in the applicant’s home province, and I was not presented with any material to suggest that mere attendance at an unregistered Church in the applicant’s home province will attract adverse attention and serious harm by the police.

37.For the reasons given above, I am 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).

I am not satisfied that there are substantial grounds for believing that there is a real risk of significant harm

38.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) because the applicant does not face a real risk of being harmed on return to China. I find that he is of no interest to the Chinese authorities.

39.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

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

Nathan Goetz
Member