1513671 (Refugee)

[2017] AATA 1969

1513671 (Refugee) [2017] AATA 1969 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513671

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:5 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 October 2017 at 10:22am

CATCHWORDS

Refugee – Protection Visa – China – Catholic Christian – State persecution – Applicant credibility - Lack of basic knowledge

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

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] November 2014 and the delegate refused to grant the visa [in] September 2015.

3.    In his application, the applicant stated the following:

I am a Christian but my religion is illegal in China. The local government forbidden the gathering and send police to check us all the time. I felt scared and I have no human rights. I have to escape.

I was detained several times because I was caught during the gathering. Every time the police requires a lot of money for bail. Furthermore, there was no food and a little bit drinks in the detention centre. I dare not fall asleep because I was beaten several times when I slept. I was living in fear.

The Catholic is not allowed in China unless we go to the churches running by the government. If I back home, I will be continued live in fear. There is no religion freedom in China.

4.    The applicant appeared before the Tribunal on 4 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant stated that he understood what the Tribunal was saying once it had been interpreted to him.

5.    The applicant stated he was born Catholic and attended church in China and Australia. He also stated he had been detained once by the police at mass. He also stated he had been arrested once in his hometown at a Church gathering that had occurred at the official church however he did not know why he had been arrested.

6.    When asked how many and what were the sacraments, the applicant stated there were three sacraments and identified the ‘holy body.’ The Tribunal confirmed with the applicant that he understood the word ‘sacrament’. The Tribunal also explained the sacraments were very important to Catholics as they were the ceremonies that they undertook in order to get closer to God. He was unable to state which sacraments he had had. He was unable to state when Jesus was nailed to the cross or by what name Catholics and Christians referred to that particular event as.  He also stated his memory was not good and he only read scripture at church. He also stated he attended church in Australia once per fortnight and sometimes once every three weeks.

Country information

7.    According to the Catholic Archdiocese of Melbourne: The Seven Sacraments of the Church are as follows:

CCC 1210 Christ instituted the sacraments of the new law. There are seven: Baptism, Confirmation (or Chrismation), the Eucharist, Penance, the Anointing of the Sick, Holy Orders and Matrimony. The seven sacraments touch all the stages and all the important moments of Christian life: 1 they give birth and increase, healing and mission to the Christian's life of faith. There is thus a certain resemblance between the stages of natural life and the stages of the spiritual life.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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).

1. 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.

2. 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’).

3. 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.

4. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Definition in Article 1 of the Refugees Convention in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that he will suffer significant harm.

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

6. In his application, the applicant stated that he was Christian and Catholic, that the local government had forbidden gatherings and had sent police to check on them, that he had been detained several times by the police and had also been beaten and given little food. At hearing he stated that he had been detained once and arrested once.

7. The Tribunal finds that at hearing, the applicant was unable to answer basic questions about his alleged Catholic faith such as how many and what were the sacraments. He was unable to state which sacraments he had received. He was also unable to state when Jesus was nailed to the cross or what Christians referred to that particular incident as. The Tribunal finds that the applicant’s knowledge of Catholicism as displayed at hearing was extremely poor and not consistent with someone who was born Catholic or has attended church or Catholic or Christian gatherings in China and Australia.  While the applicant has stated that his memory was not good and he only read scripture at Church, the Tribunal considers the sacraments and when Jesus was nailed to the cross to be a matter of basic knowledge for a person who was allegedly born Catholic and who attended church in both China and Australia. Given the applicant's lack of basic knowledge about Catholicism, as well as Christianity, the Tribunal does not accept that the applicant is credible or that he is Catholic or Christian or has attended Church in Australia or in China as claimed. Neither does the Tribunal accept that police were sent to check on him, or that he has been detained and arrested by the police and beaten and given little food. Neither does it accept that he believed he needed to escape China. Given that the Tribunal does not accept that any of the events the applicant alleges occurred in China have occurred or that he is Catholic or Christian, or has attended Church in Australia, the Tribunal finds the applicant will not be perceived as a Catholic or Christian or participate in Catholic or Christian gatherings if he returns.

8. 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).

9. 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 has rejected the entirety of the applicant’s claims. Accordingly, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, China, there is a real risk that the applicant will suffer significant harm.

10. 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

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

Angela Cranston
Member