1513983 (Refugee)

[2018] AATA 1527

1513983 (Refugee) [2018] AATA 1527 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513983

COUNTRY OF REFERENCE:                  China

MEMBER:Ms Christine Long

DATE5 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2018 at 12:47pm

CATCHWORDS

Refugee – Protection visa – China – Religion – Christian – Underground Christian church attendance – Police harassment and detention – Bribery for passports – Return visits to China – Disregarded conduct engaged in by an applicant in Australia – Credibility issues

LEGISLATION
Migration Act 1958, ss 36, 65, 91R(3), 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 a protection visa on 7 November 2014 and the delegate refused to grant the visa on 16 September 2015.

3. The applicant appeared before the Tribunal on 23 November 2017 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

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

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

   CLAIMS AND EVIDENCE

10. The Tribunal has before it the Department’s file in relation to the applicant’s application for protection visa which includes his application, a CD of the recorded interview with the delegate on 27 July 2015 and a copy of the delegate’s decision record.

    Claims made in Application for Protection Visa

11. In his application the applicant states that he was born in Fuqing, Fujian in China in [year]; he is a Chinese citizen. He indicates that he is Han, Christian. He indicates that he married in [Australia] in October 2014; he indicates that his child was born in [Australia] in [year]. He indicates that he left his country legally [in] December 2006 and that he arrived in Australia [in] December 2006 as a student. He gives details of his passport issued in China in [2006] expiring in [2011]. He states that he had to pay local police “for the documents of passport application”. He also gives details of his current passport issued at the [Consulate] in [2011] valid until [2021]. He indicates that his most recent Australian immigration visa was his student visa issued in [Australia].

12. The applicant indicates that he lived at the same address, which he provides, in Fuqing, Fujian in China from [year] until December 2006, just before he left China to come to Australia. He provides details of his schooling in Fujian and [Australia] and indicates that he was a student before he came to Australia.

13. The applicant indicates that he has returned to his home country since arriving in Australia.

14. The applicant indicates that he talks to his parents over the phone every now and then.

15. In a statement made in support of his application for protection visa the applicant states that he came from a Christian family and that his family have been persecuted by the Chinese government because of their long term involvement with underground Christian church activities. They sent him to Australia to seek freedom of belief as they feared he might suffer the persecution and ill treatment that they have been through. The applicant continues that several generations of his family were committed Christians and he was nurtured in the love of Jesus Christ. He attended church gatherings with his parents since he was little and “we prayed and read the Bible together”.

16. In the statement the applicant continues that the family churches are constantly harassed by authorities and they have to change their meeting places; they are held in the houses of the brothers and sisters of the church. He states that it is difficult to avoid the attention of the local government. His church has been harassed by police and government officials over the years on many occasions and more than once his parents have been warned and threatened by them. He describes an event in August 2005 when during a bible reading meeting at his/his parents’ house [number] police officers broke in and they were accused of having an illegal religious meeting. Police pushed them out of the house to police cars to take them to the police station and they were beaten; there were about [number] attending the meeting including himself. Several church brothers and sisters were injured. His parents were taken to the local police station and the police issued a Detention Notice the next day stating that his parents were attending a cult meeting and disturbing social order; they were detained [number] days and were harassed and questioned about other church members. His parents were warned to attend the official church and forced to sign a declaration that they would not attend underground church activities. They cannot accept the official church which put the communist government ahead of Jesus Christ.

17. The applicant continues in his statement that since 2005 when his parents were detained they have often been harassed by local officials; community officers often showed up at their house and questioned them; they were closely watched by the local government especially during days of official ceremonies. Many from the church were warned and threatened.

18. The applicant states that he was recorded by local police; “they noticed my school” which made his life extremely difficult. He was many times summoned by school officials and they demanded that he give up his involvement with the church. He was singled out and mocked by teachers and schoolmates because he was Christian; the school director threatened to expel him if he was found behaving wrongly.

19. The applicant states that he cannot give up his belief and has never stopped worshipping Jesus Christ. They worshiped at home during the period they were watched by the government.

20. The applicant states that they were persecuted by the government because they attended the family church. They lived in constant fear from August 2005. His parents were worried about his safety and since that time they planned to send him overseas to a country with religious freedom. As he was recorded by local police his journey overseas was difficult; local police refused to issue the documents for his passport application and his parents had to bribe two officers from the station to get the documents ready. It was over a year until he got a passport. He left for Australia in December 2006 right after he was granted his student visa.

21. The applicant said that soon after arriving in Australia he found a church and attended church meetings almost every weekend. At the church they love and help each other; they sing and praise Jesus Christ and His great love.

22. The applicant states that in Australia he met his wife in October 2010 and they lived together from August 2011. Their daughter was born in [year]. They were registered for marriage in October 2014.

23. The applicant states that he has been in Australia for 8 years and he attends church activities regularly; he has got to know many fellow church goers. He did not know that he could apply for a protection visa because of his experience in China. He knew nothing about the law and was worried that a refugee application might cause trouble for his parents in China. His church members suggested he should lodge an application to regularise his migration status.

24. The applicant states that he left his country because he was persecuted by Chinese authorities due to his involvement with the underground Christian church; he was ill treated at school and often threatened by school and local officials. He fears that if he returns to China he will face threats to his personal safety and dignity and will be deprived of his freedom of faith. He will be harmed by the Chinese government because the underground church is forbidden in China and he is a committed Christian who does not accept the teaching in the official church. If he returns he will attend the underground church and face the danger of persecution. He cannot get protection from the harm he fears in China because it is the authorities who will persecute him.

25. The applicant also indicates in his application that his wife (dob [year]) and his daughter (dob [year]) have previously applied for refugee status in Australia on 18 February 2013 and that he himself applied for a student visa for Australia in 2006.

26. The applicant was interviewed by the delegate about his claims on 27 July 2015.

    Claims in Application for Review lodged 15 October 2015

27. In his application for review the applicant makes no new claims. His application to the Tribunal for review attaches a copy of the delegate’s decision record made 16 September 2015.

    Claims made at Tribunal Hearing on 23 November 2017.

28. At the Tribunal hearing the applicant produced his passport issued in Fujian in [2006] noted as expiring in [2011]; a copy is placed on the Tribunal file. He also produced his current passport issued in [Australia] in [2011] noted as expiring in [2021].

29. At the hearing the Tribunal spoke to the applicant about his visa history for Australia, including a period when he was without a visa to stay in Australia; his study in Australia; the obtaining of his passport and visa for Australia in China; his background and family in China, including his family’s investment business in Henan Province; his return to China from  Australia on two occasions and his experiences in China during his stays there on those occasions; the reason that he left his country in 2006; his delay in applying for a protection visa in Australia; the claims of his wife and child for protection prior to his application for protection; the practice of his religion in Australia; his knowledge of Christianity; his claims about what will happen to him if he is returned to China.

30. The Tribunal allowed the applicant further time following the hearing, until 8 December 2017, to provide additional evidence in support of his claims.

31. On 8 December 2017 the Tribunal received an undated statement in support of the applicant’s claims. The statement is expressed to be from a person who is a [Relative A] of the applicant who states that he migrated to Australia 15 years ago, that the applicant and himself grew up in Christian families as their grandparents were committed Christians who held church gatherings where people from all over came to read the Bible, pray and sing hymns to praise God. The writer states that he cannot remember when this kind of church meeting became illegal in China but they had to reduce the number of people coming to the meetings and meet secretly. The writer states that the applicant fled to [Australia] from China soon after their [relative] died in 2007, “following his dream of seeking truth and love of our Lord Jesus”.  The applicant asked to see the church as soon as the writer collected him from the airport and during the time he lived with the writer at his house went to the [specified] Church each Sunday to worship. They also attended a bible study group in [Suburb 1] and a prayer meeting held on Saturday morning. The applicant has shared his feelings with the brothers and sisters in the church saying that it was God’s love that brought him to this free country. The writer states that the applicant moved to [Suburb 2] a few years ago and found a local church there. Although they no longer go to the same church they still talk all the time and encourage each other with God’s word and pray for each other.

    FINDINGS AND REASONS

32. Essentially the applicant claims that he left China and cannot return there because he feared/fears harm from Chinese authorities/police because he is a Christian who has attended, and will attend, underground/family Christian religious gatherings in his country and also because of his family’s underground Christian activities in China. He claims that he is from a Christian family and that his parents have been harassed, watched by local officials, detained and ill treated in China because of their long term involvement with underground Christian church activities. He claims that his parents sent him overseas to a country with religious freedom. He claims that he was singled out and mocked by teachers and schoolmates at school because he was a Christian and because he was recorded by local police. He claims that it was difficult for him to leave China because local police refused to issue him documents so that he could obtain his passport; this he claims was because of his/his family’s religious activities. Before the Tribunal he claimed that his parents moved to Henan province because of their harassment and ill treatment from authorities for their religious activities in Fujian. Before the Tribunal he also claimed that when he returned to China from Australia, on the second occasion that he did so, he had difficulties there when local police stopped him and others praying at a gathering at his family’s residence in Henan Province. The applicant also claims that he has attended Christian churches regularly in Australia since his arrival.  He did not know that he could apply for protection in Australia; church members suggested he should apply to regularise his migration status. Implicit in the applicant’s claims is that he cannot get protection from the harm he fears in his country.

33. The Tribunal accepts that there is country information available which indicates that members of unregistered, family or house churches in China may sometimes attract adverse official attention and may be at risk of official discrimination and violence. See for example the section entitled “Christians” in DFAT Country Information Report, People’s Republic of China, 21 December, 2017. Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returns to China, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case China, there is a real risk that the applicant will suffer significant harm.

34. The Tribunal accepts and finds that the applicant is who he claims to be; he produced to the Tribunal at the hearing his passport issued at the [Consulate] in [Australia] [in] 2011; the passport is noted as valid until 2021. This passport is noted as issued to replace his prior passport, which he also produced. His prior passport is noted as issued in Fujian in [2006] valid until [2011].

35. Having regard to the details in the applicant’s passport which the applicant produced to the Tribunal at the hearing, the Tribunal finds that after arriving for the first time in Australia [in] December 2006, on a student visa granted [in] December 2006, the applicant returned to China on two occasions. The Tribunal finds that the applicant left Australia [in] September 2007 and returned to China; he then left China [in] October 2007 and returned to Australia [later in] October 2007. He left Australia again [in] December 2008 and returned to China. He left China [in] February 2009 and returned to Australia from China [later in] February 2009. The applicant told the Tribunal that he returned to China on the first occasion when his [Relative B] married and then he returned again  [for a family event] and perhaps also for new year celebrations. He told the Tribunal that he did not have any difficulties exiting or re entering his country using his passport and visa.

36. Based on the applicant’s evidence to it at the hearing the Tribunal finds that the applicant’s mother and father and his [siblings] remain living in China and that his brother and father are involved in an investment business organising a [business] in Henan Province. The applicant told the Tribunal that his sister is married and a housewife and that she lives in [another] Province and that his parents and his brother now live mainly in Henan Province. The applicant said that his father and brother are involved in organising a [business] in Henan to be rented out to others, like an investor. The applicant said that his parents went to live in Henan Province from  2007 after he (the applicant) left China. He said that his parents continue to return to Fuqing every few months because his grandparents live there.

1. The Tribunal finds that on the two occasions that the applicant returned to and stayed in China, after leaving there in 2006, he stayed with his parents in Henan Province and also returned to Fuqing in Fujian. He told the Tribunal at the hearing that when he returned to China from Australia he stayed in Henan Province with his parents and went back to the family home in Fuqing for a couple of days on each occasion to visit his grandparents.

2. The Tribunal does not accept as true that the applicant had difficulties in his country when he returned there from Australia as he claimed before the Tribunal. When the Tribunal asked the applicant whether he had any difficulties in Henan Province when he was staying there with his parents he said that he did not have any trouble the first time (in 2007)  but on the second occasion (in 2008/2009)  there was some trouble. He said that about 10 or 20 days after his arrival back in China the second time he was praying at a gathering of about [number] people at night in their residence in Henan Province when [number] police from the local police arrived and stopped them praying; a church member was detained because he became excited. When the Tribunal asked the applicant if he had ever mentioned this incident before he said that he had not done so. The Tribunal told the applicant that it had concerns that he was telling the truth about this incident given that he claims it occurred in 2009 and he had not mentioned it until the Tribunal hearing. The applicant then said variously that he had spoken about other incidents, that it came without warning, that he did not have time to tell about it and that he had been asked other questions. The Tribunal does not accept that these explanations for not mentioning such an incident are reasonable or plausible. Also the Tribunal does not consider that it is consistent with this claim that although the applicant places this incident in the first two to three weeks of January 2009, he remained in China in 2009 until [February] although he had a passport and visa and could have left the country and returned earlier to Australia. The Tribunal considers that the applicant’s claim that he had difficulties in his country when he returned there in 2008/2009 from Australia is recent invention by the applicant to improve his chance of getting a visa to remain in Australia.

3. The Tribunal does not accept as true that the applicant left his country and cannot return there for the reasons that he claims. It does not accept as true that he was recorded by local police and that his parents had to bribe local police to get his documents, for the reasons that he claims, so that he could travel to Australia. In the Tribunal’s view if the applicant left his country in 2006 because he and/or his family members had difficulties there, and feared harm there for the reasons that he claims, he would not have returned to China on two occasions after leaving there, and remained in that country for over a month on the first occasion, and for nearly six weeks on the second occasion, and attended a religious gathering there as he told the Tribunal he did. When the Tribunal asked him how his return trips to China were consistent with his claimed fear of harm from authorities in China because of his/his family’s religious beliefs and activities he said that “I still had the visa” and that he stayed in Henan Province with his parents. The Tribunal does not consider that these explanations reasonably explain why the applicant would return to his country and stay for the periods he did if he genuinely feared/fears harm there for the reason/s that he claims. According to his evidence to the Tribunal although he had a visa to return to Australia he remained in Henan province at his parents’ house, after the claimed incident with police there, until [February] 2009. Also, as the Tribunal understands, although he claims he had trouble from local police in Fujian, he does not claim that the harm he fears in China is restricted to the locality of Fujian, where he was living with his parents prior to travelling to Australia the first time, so his explanation that he returned to Henan rather than Fujian is not a reasonable one in the Tribunal’s view; he in fact claimed before the Tribunal that he was confronted by local police in Henan Province too when he was there at a gathering of about [number] people at his parents’ residence. He also told the Tribunal that he did in fact return to Fuqing in Fujian for a couple of days on each visit back to China to see his grandparents. In the Tribunal’s view the if the applicant truly feared/fears harm in his country for the reasons that he claims he would not have returned to China, twice, for essentially family celebratory occasions there namely his [Relative B’s] marriage and [another family event], and also for new year celebrations. In the Tribunal’s view the applicant’s return visits to China on two occasions, in 2007 and in 2008/2009, are not consistent with the applicant’s claimed fear of harm from authorities in China because of his/his family’s religious beliefs and activities.

4. Further in the Tribunal’s view if the applicant left his country and came to Australia in 2006 for the reasons that he claims he would have claimed protection in Australia before November 2014, especially given that the applicant was without a visa to stay in Australia for a period after the renewal of his student visa was refused by the Department and the Department’s decision about the student visa was affirmed by the Migration Tribunal. The applicant agreed with the Tribunal that there was a period of time when he was without a visa to stay in Australia; he said that he appealed about his student visa renewal refusal, he was informed by his agent that the appeal was not successful and after the outcome of that appeal he was without a visa to stay in Australia. The delegate’s decision record about his protection visa, which was provided by the applicant with his application for review to the Tribunal, indicates that the applicant’s bridging visa associated with his appeal in relation to his student visa ceased [in] December 2011; he was without a visa to remain in Australia from that time until he applied for protection in November 2014.  The applicant indicated in the statement made in support of his application for protection visa that he did not know he could apply for protection because of his experiences in China, although he had “heard about refugee”, and that it was during a conversation with church members that they suggested he should lodge the application for protection as soon as possible to “straighten his migration status”. The Tribunal considers that given the applicant’s visa history, and also that of his wife and child, the applicant was aware well before November 2014 of the availability of protection visas.  He told the Tribunal that his wife and child applied for protection visas after the birth of his child ([in year]) although their claims were different.  His statement made in support of his application for protection visa indicates that he lived with his wife from August 2011 after meeting her in October 2010.  When the Tribunal discussed its concerns about his delay in lodging his protection visa application the applicant told the Tribunal that he has always been aware of the availability of protection visas in Australia but he thought this would impact on his parents. The Tribunal does not accept that this explanation for the delay is true.

5. The Tribunal also does not accept as true that the applicant and/or his family members had, or have, difficulties from authorities in China as the applicant claims for the reasons that he claims. It does not accept as true that the applicant was recorded by local police at his school or harassed at school for the reasons that he claims in his application for protection visa. Further the Tribunal does not accept as true that the applicant’s family members moved to Henan province from Fujian because they were experiencing harassment and ill treatment from authorities there because of their religion and religious activities. When the Tribunal asked the applicant why he left China in 2006 he said that in 2005 there was a meeting of about [number] people in their home; about [number] people came and many were detained. He said that he was not detained but his parents were detained for [duration] and required to write a statement and promise not to attend meetings. The Tribunal asked the applicant were there any other incidents that involved his parents that he knew of. The applicant said that he left China so he did not have much idea about what happened. When the Tribunal queried this given that the applicant had said earlier in the hearing that he contacted his parents by video each two weeks, he said that was only after the birth of his child and in any event they only discussed family matters and they would not tell him. He then repeated that he did not know about any other incidents involving his parents apart from the one (in 2005). When the Tribunal later asked the applicant about whether his brother was having any difficulties in China because of his father the applicant said that his brother works with his father and so if his father has trouble his brother also has trouble. When the Tribunal then reminded the applicant that he had only mentioned the one incident that his father had in 2005 (in Fujian) and asked him again if there had been any other incidents involving his father that he knew of he said “should be” but then said that he was just speculating about that. When the Tribunal reminded the applicant that the delegate’s decision record, a copy of which he had provided with his application for review, indicates that the applicant had claimed that his parents had been arrested on three occasions since 2006 when he came to Australia, the applicant then said that he told the delegate that his parents had been arrested on three occasions and that was correct.  When the Tribunal asked the applicant more about these three incidents, such as when they were and when he had found out about them he said that he could not remember, that it was a long time ago, that they had told him about them when he called and he could not remember whether the incidents occurred before he returned to China in 2007 and in 2008/9. He then said that the incidents all happened in Fuqing although he earlier told the Tribunal that his parents moved to Henan in 2007 after he left China in 2006 to come to Australia. When the Tribunal asked the applicant why he only mentioned one incident (in 2005) involving his parents when asked earlier in the hearing, he said that he was confused, that he thought the Tribunal meant earlier, and that he was not present at all the incidents. The Tribunal does not consider that the applicant’s explanation for not mentioning the later three incidents is reasonable or plausible. The Tribunal considers that if it were true that these incidents had occurred the applicant would have known more details of these incidents and he would have mentioned them when first asked by the Tribunal and would not have needed to be reminded of these claims. The Tribunal finds that the applicant is not a truthful witness; the Tribunal finds he has given untruthful evidence to it about the incident in 2005 and also about the later three incidents that he claims occurred involving his parents after he left China in December 2006.

6. The Tribunal does not accept as true that the applicant’s father/family members are having difficulties in China as the applicant claims for the reasons that he claims. He told the Tribunal that his mother and father and his [siblings] remain living in China and that his brother and father are involved in an investment business organising a [business] in Henan province. When the Tribunal asked the applicant how his father and his brother managed to live in Henan and carry out their business, investing in the [business], if they were having trouble from authorities because of their/the family’s religious activities he then said that he does not think the business is good but also said that he does not have any idea, knows little of the business and that his father did not tell him anything.  The applicant told the Tribunal that his sister is married and a housewife and that she lives in [another] Province; he does not claim that his sister has had any difficulties in China because of his/his family’s religious activities.

7. While the Tribunal accepts that the applicant has sometimes attended Christian churches in Australia and has some basic knowledge of Christianity, the Tribunal considers that the applicant’s responses to its questions about his knowledge of Christianity, and about what Christianity means to him, were not consistent with the applicant’s claims that he has been a Christian, and involved in Christian activities, since childhood and has attended Christian churches and other Christian activities regularly in Australia since arriving here as a student in December 2006.  He told the Tribunal that he goes to church every week, if he is not working, and that he has attended a church in [Suburb 3] and a church in [Suburb 4] which he has attended for a few years. When the Tribunal asked him what Christianity means to him he said it means to worship God, and not other gods. When the Tribunal asked him what he does to worship God he said that he prays, meets on Sundays and reads the Bible. When the Tribunal asked him more about his prayers, what he did in the meetings and what he understands is in the Bible he said that he celebrates Jesus, Jesus protects people and all people are sinners; he prays for forgiveness.  He said that he has attended church since childhood. He commenced a prayer for the Tribunal which the Tribunal accepts that he knows. When the Tribunal asked him about the Bible he said that he only knows one chapter but that he could not recall the whole chapter but he can tell about deeds Jesus did.  When the Tribunal asked the applicant to describe  more about what Christianity means to him he said Jesus changed water to wine, he saved ten people at one time and he believes that, that Jesus is great and crucified himself to save the world, that there are many trees in the Bible such as the tree of life and the tree of knowledge, that after Jesus was crucified he came back to life and that is celebrated at Easter, that the birth of Jesus is celebrated at Christmas and shepherds found Jesus when he was born.

8. The Tribunal finds that the reason the applicant has attended churches in Australia and gained some knowledge of Christianity in Australia is to give him a better chance of remaining permanently in Australia and the Tribunal finds accordingly. The Tribunal does not accept that the applicant is a genuine Christian. It does not accept as true that he practised Christianity in China or that he will practise Christianity on return to China. The Tribunal does not accept as true that the applicant attended, or will attend on return to China, underground Christian church/ family or house/unregistered Christian church in China and/or that he suffered, or will suffer, harm in China for that reason if he returns there. As noted above the Tribunal accepts the applicant has some basic knowledge of Christianity and that he has attended Christian churches in Australia. Subsection 91R(3) of the Act, which was generally discussed with the applicant at the hearing,  provides that in determining whether a person has a well founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. It states as follows:

   s.91R(3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)     the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

   Where conduct in Australia is an issue, the applicant has the practical burden of satisfying the Minister (or Tribunal) that it was otherwise than for the purpose of strengthening his or her claims to be a refugee. As regards the refugee criterion the Tribunal is not satisfied that the applicant attended Christian churches and activities in Australia, and gained some basic knowledge of Christianity in Australia, otherwise than to strengthen his claim to be a refugee and the Tribunal disregards that evidence for the purposes of the applicant’s application for protection as a refugee within the meaning of the Refugee’s Convention (the refugee criterion).

9. S.91R(3) is not of course applicable to the Tribunal’s consideration of the complementary protection criterion.

10. For the purposes of the complementary protection criterion the Tribunal finds that the applicant would not be of interest to authorities in China because of his practice of Christianity in Australia including his attendance at Christian churches in Australia. He claims in the statement made in support of his application for protection visa that he has attended Christian church in Australia from “soon after arriving in Australia” and has not claimed that he has had any difficulties on his returns to China because of his attendance at churches and Christian activities in Australia. According to his application for protection and his evidence, since first leaving China in December 2006 the applicant has legally left China twice, in 2007 and in 2009, and has entered China twice, in 2007 and in 2008, using a passport and visa in his own name without any difficulties from authorities there. When the Tribunal asked him at the hearing whether he ever had any difficulties exiting or re entering his country using his passport and visa in his name he said no.  

11. The Tribunal considered the document in support of his claims submitted to the Tribunal by the applicant following the hearing, on 8 December 2017, namely the statement expressed to be from a person who is a [Relative A] of the applicant. Although the document provided a mobile telephone number and an address for the writer of the document the Tribunal did not contact that mobile number or address as it could not ascertain with certainty to whom it would be speaking or otherwise communicating. Given that the Tribunal has credibility concerns about the applicant and given that the document is expressed to be from a relative of the applicant, whom the Tribunal considers may not be impartial, the Tribunal finds that the document is not reliable evidence of the facts in it and gives that document no weight. The Tribunal also notes that although the writer of the document recalls the specific details that when he picked the applicant up from the airport in [Australia] one of the first things the applicant did was ask him, “where is the church, can you take me there so I can have a look?”, stating that he (the writer) was grateful to our Lord that he (the applicant) had such faith at such a young age, the writer does not recall the correct date of the applicant’s arrival in Australia; the writer states that the applicant fled from China after “our [relative] passed away in 2007” but the writer’s passport indicates that the applicant first arrived in Australia from China in December 2006.

12. The Tribunal finds that there is not a real chance that the applicant will be persecuted in his country for reasons of his race, religion, nationality, membership of a particular social group or political opinion, or any one of those reasons.

1. Further the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   CONCLUSION

2. 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).

3. 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).

4. 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

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

   Ms Christine Long
   Member