1514892 (Refugee)

1514892 (Refugee) [2016] AATA 3967 (9 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514892
COUNTRY OF REFERENCE:                  China
MEMBER:Nicola Findson
DATE:9 June 2016
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 June 2016 at 9:34am
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

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).
The applicant is a [age] single man from the Jiangsu Province in China. The applicant claims that he is a follower of Yiguan Dao. He fears that if he returns to China, he will be harmed by the Chinese authorities and will not have freedom to practice his religion.
The applicant applied for the visa [in] May 2015, and the delegate refused to grant the visa [in] October 2015. The delegate was not satisfied that the applicant was a credible witness or that he had a well-founded fear that he would be targeted for persecution by the Chinese authorities. The delegate was not satisfied that there was a real risk that the applicant would suffer significant harm if he returned to China, and therefore he was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 23 December 2015, 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 was represented in relation to his review by his registered migration agent. Although, the applicant’s representative did not attend the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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. There are two reports published in relation to China. A DFAT country information report and a thematic report on unregistered organisations and other groups in China. The tribunal has had regard to both reports. The second report indicates there is little information regarding Yiguan Dao in China.
Background and protection claims
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
In his application for a protection visa, the applicant declares that he was born on the [date] in Zhenjiang, in the Jiangsu Province, China. He also declares to be a citizen of the People’s Republic of China and not to hold citizenship, or to be a national, of any other country.
The applicant departed China and arrived in Australia [in early] 2006, as the holder of a student visa. [In] May 2006, the applicant was granted a further student visa, which ceased [in] 2008. After this time, the applicant remained in Australia unlawfully, until his car was intercepted during a road side stop [in] April 2015, and he was identified as an unlawful resident and detained by the Department.
As to the questions on the application asking why he left China and what he fears will happen to him is he goes back, the applicant states that he came to Australia to study in 2006. He further states: “Later my parents came along as well. My parents are really harsh and strict on me…Eventually I left home for freedom. I didn’t return home due to my self-esteem and continued living on my own thought of way of life. Occasionally, one of my friends brought me to a Yi-Kun-Dao (Tao) temple at [suburb]. I have never practiced Dao since my family is atheist… I was inspired and started to have interests in Tao and determined to practice it. I went to practice, listening to lectures and reading books about Tao on the first and 15^th date of every lunar month. …Later I found out that practising Tao is prohibited by Chinese government. Yi Kun Dao is recognised as evil cult…Tao’s followers are persecuted. It is fairly dangerous to practice and evangelize Tao in China. I have read news about police raiding on underground family Tao temples and I am desperately feared and worried about it. To me, practising Tao in China is extremely dangerous and threatening than anything else. Currently my family (parents and [sibling]) has been successfully granted permanent residence through business migration. For me now, there nothing more than having family reunion, developing Tao faith and become a contributory element to Australian society. …I fear to be deported as I have NO family members and social ties in China, that leads me a vulnerable situation for survival.”
The Delegate’s Decision
In a decision record, the delegate sets out her findings and reasons for refusing to grant the applicant a protection visa. Having considered the written statements submitted by the applicant and his responses at the Department interview, the delegate was not satisfied that the applicant was a credible witness. The delegate found the applicant’s failure to provide evidence of his study in Australia; his awareness of his unlawful status in Australia since 2008; his failure to contact the Department; and his significant illegal income raised serious doubts about his credibility. The delegate also found that the applicant’s delay in submitting a protection visa application raised serious concerns about the immediacy, gravity and credibility of his claims of fearing persecution in China. It was the delegate’s assessment that the delay indicated that until 2015 when the applicant was located by the Department, he did not have a genuine fear for his safety. As to the applicant’s claim that it would be difficult for him to subsist if he was to return to China, the delegate found that his ability to navigate life and find employment in Australia without communication skills, his trade skills, and his competence to open a business, suggested a capable and resilient young man with a set of skills and abilities that would enable him to subsist in his own country. Further, the delegate set out that there was nothing in his profile to suggest that he would be denied subsistence for a Convention related reason in China. The delegate also found that the applicant’s protection visa application was motivated by other factors rather than his concern for his safety for Convention related reasons.
Application for review
[In] November 2015, the applicant applied to the Tribunal for review of the delegate’s decision. No further evidence or submissions were received from the applicant or his representative in addition to the application for review form, which attached the delegate’s decision.
Evidence presented at Tribunal hearing
The applicant confirmed that he was born on [date], in Zhenjiang City, Jiangsu Province, China. He told the Tribunal that his Chinese passport is now expired.
The applicant told the Tribunal that the rest of his close family - his parents and [sibling] - live in [City 1], Australia. The applicant’s [sibling] came to Australia shortly after the applicant to study, and his parents followed on business visas 4 or 5 months after that. The applicant’s parents and [sibling] were granted Australian citizenship in [mid 2000’s]. His parents own and operate a [certain] shop in [suburb]. They sometimes return to China for business opportunities. They no longer own any property in China.
The applicant told the Tribunal that his family do not hold any religious beliefs.
The applicant told the Tribunal that when he came to Australia, he was in a rebellious stage of his life and his parents were very strict on him. He told the Tribunal that in November 2007, he left home, and did not maintain any contact with his parents or [sibling] after that time.
The only relative of the applicant that remains in China is his maternal [relative]. She lives in the applicant’s home area of Zhenjiang City.
The applicant claims that while he was still living with his family, he started believing in Yiguan Dao. He was introduced to this religion by a friend – [Mr A] - he had met while they both worked together at a restaurant.
The applicant told the Tribunal that he attended [name] College and completed a 6 month language course. After that, he went on to complete three terms of Year [number] at [name] College. The applicant told the Tribunal that he could provide evidence to confirm this study.
The applicant told the Tribunal that at the beginning, in [City 1], he worked on a casual basis for many different places. He worked in [various employment]. In 2009, the applicant moved to [City 2], to avoid his family finding him. When he arrived, in order to survive, he worked in similar casual jobs to those he had worked in [City 1]. In 2013, the applicant partnered with a friend who owned a construction business – [name] - and he learned a trade through this experience. There were a few other employees, mostly Taiwanese nationals holding working holiday visas, also working for this business.
The Tribunal was told that when the applicant was detained by the Department, he contacted his family and they have since reconciled and speak regularly by phone. The applicant told the Tribunal that his parents had engaged a representative to assist him with remaining in Australia. He explained that he had been told that because of his age, it would be difficult for him to stay on the basis that he was a last family member. The representative had suggested that because of the applicant’s religion, he would be able to apply for a protection visa.
When asked to explain his claim to fear harm if he returns to China, the applicant told the Tribunal that his religious beliefs are strictly persecuted by the government in China. He told the Tribunal that the friend who had introduced him to Yiguan Dao, [Mr A], had returned to China several years ago. In 2010, [Mr A] told the applicant by telephone that he regretted returning to China because Yiguan Dao followers were reported to authorities and detained, and he urged the applicant not to return. The applicant also said he has read news about the Chinese government’s persecution of Yiguan Dao. He told the Tribunal that the government of China will not allow anyone belonging to Yiguan Dao to be present in China. The applicant said he has not spoken with [Mr A] for about 2 years.
When the Tribunal asked the applicant about Yiguan Dao, he responded that after 1949, the Communist party did not allow the religion to exist and labelled it an evil religion. He said that after the war with Japan ended, Yiguan Dao followers discovered that their religious beliefs were not compatible with what communist party believes and they were labelled as traitors. He said since then, this religion has always been persecuted in China. And, even now, Yiguan Dao is not legally recognised by Chinese govt.
The applicant told the Tribunal that what had attracted him to Yiguan Dao was that if you believe, you will have longevity. He said that Yiguan Dao helps you to live a righteous life and to live the way nature intended. He said Yiguan Dao protects you from danger and changes your life. He said it can help followers find the essence of life, truthfulness, and kindness. It can also diminish the evils of the world and help people find eternity.
The Tribunal asked the applicant to tell it about the importance of being a follower of Yiguan Dao and how he incorporates the beliefs and principles in to his everyday life. The applicant responded that there are principles he adheres to and practices. He prays to a central God (Ming Ming Shung Di) and also pays respects to other minor Gods (Gi gong and Wei Pu Sar). He told the Tribunal that he will firstly pay respects to the central God and then the minor ones. He said at work if Yiguan Dao followers help others, then they will be credited. The applicant also told the Tribunal that he adheres to 8 principles of the ancestors. He told the Tribunal 4 of these principles - righteousness, intelligence, faithfulness and obedience.
The applicant told the Tribunal that while he was living in [City 1], on the 1^st and 15^th of every month as well as every Wednesday and Saturday, he would attend a “spiritual place”. And, when he did, he would pay respect to his Ancestors, listen to the Pastor talk, then join in a group discussion. The spiritual place in [City 1] was located at [address]. There would generally be [number] followers who would attend the spiritual place. He clarified that this was not a temple, but an elder’s house. He said the preachers were different each time he attended the spiritual place. He recalled that one preacher was called ‘[name]’ and that he was a friend of [Mr A]’s. The applicant added that whenever he was free, he would practice his religion at home. He also said that as long as a Yiguan Dao follower is helping others, this counts as a practice of the religion. The applicant told the Tribunal that he had been donating to a charity – [name] - for 5 years.
The applicant told the Tribunal that when he relocated to [City 2], he made attempts to find a local spiritual place, but was unsuccessful. He said that he inquired as to where he could go with a follower in [City 1], but was told there were no spiritual places in [City 2]. He was told that he could choose to practice via the internet or set up a spiritual place himself, at his home. The applicant told the Tribunal that he chose to continue his practice of the principles of Yiguan Dao by himself, at his home via the internet.
The applicant has not associated with any other Yiguan Dao believers in [City 2]. The applicant said that he is not aware of any other Yiguan Dao followers in [City 2].
When asked to explain why he had remained in Australia unlawfully for so many years, the applicant told the Tribunal that he did make inquiries with some migration agencies as to his visa situation, while he was in [City 1] and when he first arrived in [City 2], but no one could help him. He told the Tribunal that some agents had refused to help him, while others suggested that he find an employer to sponsor him or get married. The applicant was not able to tell the Tribunal the names of any migration agents he had approached.
The Tribunal invited the applicant to comment on the delegate’s concern that he gave contradictory answers to the Department about when he learned that Yiguan Dao was prohibited in China. The applicant explained that he first became aware that Yiguan Dao was banned in China in February 2008. However, he said that he first learned that China persecutes Yiguan Dao in 2010, from his friend, [Mr A]. The applicant said that in 2011, [Mr A] repeated to him that Yiguan Dao was persecuted. He also said that in 2015 after he was taken in to detention, his parents told him that Yiguan Dao was persecuted.
The Tribunal put it to the applicant that there was a long delay between his discovery that Yiguan Dao was persecuted in China and the making of the application for a protection visa. It explained that it might conclude that such a delay indicated that he did not have a genuine fear of returning to China. The applicant replied that he did not know the requirements of applying for a protection visa or that Australia would protect him for his beliefs. The applicant said that none of the migration agents he had spoken to had raised applying for a protection visa.
The Tribunal referred the applicant to country information regarding the situation for Yiguan Dao followers in China. That information states Yiguan Dao is a prohibited religion in China. However, the reports indicate that there is no information of followers of Yiguan Dao being targeted for harm by the Chinese authorities in recent years and that Yiguan Dao operates with some tacit recognition by the Chinese authorities. The applicant responded that he had already explained why the Chinese Government persecuted Yiguan Dao followers. He also told the Tribunal that from 1949 up until now, Yiguan Dao has been unlawful. He said that he had been unable to access the internet since he had been taken in to detention, but he doubted that the practice of Yiguan Dao would be legalised all of a sudden.
The Tribunal asked the applicant to comment on the delegate’s concerns that he was not a Yiguan Dao follower. The applicant responded that he had told the delegate how he had practiced and he is telling the truth. He said that when he was first introduced to Yiguan Dao, he was taught the principles and he practised with [Mr A]. He said he had attended and borrowed books from the spiritual place in [City 1] and read about Yiguan Dao at home. The books he read were called: ‘Principles of Yiguan Dao’; ‘Why do we follow this religion’; and ‘The true meaning of Yiguan Dao’.

When asked if there was any other reason whatsoever he feared returning to China, the applicant replied that he was at risk because he has no close relatives in China now and that it would be difficult for him to survive there because he left so many years ago.
The Tribunal explained that it would put information to the applicant pursuant to s424AA of the Migration Act which, subject to his comments, would be the reason or a part of the reason it would affirm the decision under review. It explained the applicant had the opportunity to seek an adjournment and speak with his representative before providing a response to the information.
The Tribunal put to the applicant that since being taken into immigration detention in April 2015, he had made an application for a protection visa – 9 years after arriving in Australia; 7 years after the last visa granted to him had expired; and 5 years after he learned that Yiguan Dao followers were persecuted in China. This might lead the Tribunal to think that he does not genuinely fear harm if he returns to China. It also cast doubt over the genuineness of his claimed fears about returning to China. The Tribunal put to the applicant that it was reasonable to expect someone who genuinely feared returning to their home country would take steps to find out how to obtain protection.
There was an adjournment before the applicant provided his comments in relation to the information put to him by the Tribunal. As to the delay in applying for a protection visa, the applicant told the Tribunal that he did not apply earlier because he did not know it was possible to apply for protection on the basis of his religion. He said he had sought advice from migration agents about what he could do, but no-one could help him. He apologised for not making inquiries with the Department of Immigration earlier.
The applicant was also given time to speak with his adviser when she returned from leave after Christmas and New Year, and to provide further comments in relation to the information put to him by the Tribunal.
Post hearing submissions
After the hearing, the applicant provided the Tribunal with receipts as to the contributions he has made to [charity] since the 2011-12 financial year; various ATO documents, including Activity Statements issued to [business name], and a Notice of Assessment for the year ended 30 June 2014 in the name of the applicant; as well as Letters of Offers to study from the [name] College and [name] College, dated [in] October 2005.
Further submissions as to why the applicant did not apply for a protection visa earlier than he did; the problems he will face if he returns to China; and the circumstances of persecution on Yiguan Dao in China, were also provided. The submissions set out that the applicant was unaware of what a protection visa actually was and that he did not think that his religious belief would qualify for protection in Australia. The submission also sets out that as a faithful Yiguan Dao follower, the applicant’s mission is to tell the truth and to help others. However, the consequences of doing this in China are dangerous – he would be sent to jail and deprived of the freedom of belief. The applicant also reiterates that his family and life are in Australia now. As to the situation of Yiguan Dao in China, the applicant submits that it has no public arena, no public believers, and no publications openly available. An article from the Boxun Beijing Times, published on 25 June 2010, and setting out the history of the Yiguan Dao movement in China, was attached by the applicant.
Country Information – Yiguan Dao
The Yiguan Dao, was founded in Shandong province in the 1920s by Zhang Tianran (Zhang Guangbi, 1889–1947). [1] Roughly translated, Yiguan Dao means unity way or the way of pervading unity and it claims to unite “‘the world’s five great religions’: Buddhism, Taoism, Confucianism, Islam, and Christianity”. [2] The sect spread widely throughout Japanese‑occupied areas within China during World War II. The religion was outlawed in China in 1951 resulting in members being arrested or driven underground. With the death of Zhang in 1947, many of the remaining followers found their own way to Hong Kong and Taiwan, escaping communism in China. They established their own group, mainly following their ancestral temple’s name from China, spreading the teachings of Yiguan Dao.
[1] Clart, P. 2005, ‘Yiguan Dao’, in Encyclopaedia of Contemporary Chinese Culture ed E.L. Davis, Routledge, London, p.699
[2] Bosco, J. 1994, ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’ in Rubenstein, Murray R, 1994, The Other Taiwan: 1945 to the present, East Gate, NY, p.424
Yiguan Dao remains illegal in China today but since the 1980s it has gradually been re-establishing itself as an underground movement supported by missionaries particularly from Taiwan. [3] As Yiguan Dao operates secretly in China, there is limited information on its beliefs and practices. Furthermore, due to the variety of traditions and the lack of any central authority ruling on religious matters (Yiguan Dao is described as consisting of closely related yet autonomous branch associations), local temples and their committees can innovate and reinterpret rituals and beliefs. As a result, a variety of beliefs and rituals may coexist within one area. [4]
[3] RRT Background Paper, “China – Buddhism, Taoism, Folk Religions”, January 2011
[4] Clart, P. (n.d.), ‘Way of Former Heaven (Hsien-Tien Tao) sects’, Overview of World Religions, PHILTAR (Division of Religion and Philosophy, University of Cumbria)
The most recent reported instances of followers of Yiguan Dao being adversely treated in China were the arrests of Yiguan Dao believers and destruction of Yiguan Dao temples in Fujian in 1993 and 1994. [5] Associate Professor Philip Clart (from the Department of Religious Studies at the University of Missouri-Columbia), who has published on the Yiguan Dao in China, has stated that:
(1) Yiguan Dao is a proscribed religion in the People’s Republic of China, and was radically stamped out by the Communist government in the 1950s.
(2) Efforts are under way by Yiguan Dao groups outside China (principally in Taiwan) to make converts in the People’s Republic and re-establish the religion there. The (named home province of the applicants) is a centre of such activity due to the strong presence of Taiwanese-owned companies and joint ventures in this area.
(3) The Chinese authorities do crack down on such cells when they are discovered.[6]
[5] RRT Background Paper, “China – Buddhism, Taoism, Folk Religions”, January 2011
[6] Clart, P. 2007, Email to Research & Information ‘Re: Yiguan Dao in China’, 13 October
A background to Yiguan Dao ’s status in China can be further demonstrated by Forney who reported that:
Members of the Way of Unity (Yiguan Dao) maintain their traditional, although secretive, worship in legitimate Taoist temples. Many sects operate under the guise of Buddhism or Taoism, often with full knowledge…and sometimes participation…of local authorities. Despite their apparent docility, though, the sects remain potential lightning rods for local discontent.[7]
[7] Forney, M. 1996, ‘Religion In China - God's Country’, Far Eastern Economic Review, 6 June -
The Canadian Immigration Review Board in 2009 reported on the treatment of Yiguan Dao practitioners in China in these terms. In 30 November 2009 correspondence, an associate professor of sociology at the Center on Religion and Chinese Society at Purdue University stated that he is not aware of reports of ill-treatment of members of Yiguan Dao in China (30 Nov. 2009). The Professor of Chinese Studies offered the following general information:
Yiguan Dao like other technically illegal religious groups operate at best in an administrative grey area. Depending on local conditions, they may have to exist in total secrecy or they could openly run publicly accessible and visible premises. A lot depends on the political climate and attitudes prevailing among local, regional, and provincial authorities. There are areas of China, for example, where (again, technically illegal) Protestant house churches operate openly without much interference from local authorities, while in other regions house church leaders may end up in labour camps. Yiguan Dao groups, generally speaking, are given less political leeway than Christian groups, though recently there have been signs that official attitudes toward Yiguan Dao are shifting towards a greater tolerance. [8]
[8] Canada: Immigration and Refugee Board of Canada, China: Reports of ill-treatment of Tian Dao (Yiguandao) religious practitioners, 1 December 2009, CHN103303.E, available at: >
The Tribunal reviewed too the most recent US Department of State International Religious Freedom Report for China (including Tibet, Hong Kong and Macau). [9] That report makes no reference to the Chinese authorities harming followers of Yiguan Dao.
[9] >
Having regard to the country information, the Tribunal accepts that Yiguan Dao remains prohibited in China. However, the Tribunal also places weight on the absence of information regarding Chinese authorities targeting followers for Yiguan Dao.
Attached to the applicant’s post-hearing submission is a 2010 print out, together with an English translation. It contains historical information about the formation, rise and prohibiting of Yiguan Dao in China. It does not include information about any recent harming of followers of Yiguan Dao in China.
REASONS AND FINDINGS
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out under the ‘refugee criterion’, or 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.
Country of reference
The Tribunal has considered the documentary evidence provided to the Department by the applicant and referred to in the delegate’s decision record. Having regard to this evidence, the Tribunal finds that the applicant is a national of China.
On the basis of the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is China.
Credibility issues
The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
The Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (see Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal raised with the applicant during the hearing that it considered his credibility was an issue.
After reviewing all of the evidence before it, it is the Tribunal’s assessment that the applicant is an unreliable witness and this overall finding is a matter of central importance in the Tribunal’s determination of this application for protection. He did not provide convincing evidence of his following of Yiguan Dao. In particular, the Tribunal finds that the applicant was at best general in his evidence on matters which the Tribunal considers he would have been able to give clear and detailed evidence. For example, when asked about Yiguan Dao, the applicant gave the Tribunal a very brief history of how the practice of it came to be banned in China. This history was set out in an article provided by the applicant following the hearing. Also, the applicant was only able to provide information about the beliefs and practices of Yiguan Dao believers in very general and limited detail. And, he gave very superficial evidence about how he incorporated Yiguan Dao beliefs and principles in to his own everyday life. He mentioned praying; adhering to the principles of the ancestors, of which he could only recount 4; and donating to a charity. Further, he told the Tribunal that he was unable to locate a Yiguan Dao temple for him to worship at during the many years he has lived in [City 2].
The Tribunal finds the significant delay in the applicant lodging his application for a protection visa, further undermines his claims and his credibility. The Tribunal rejects the applicant’s explanation for the delay when he claims he did not know applying for a protection visa was open to him, as it finds him a person capable of informing himself of his visa options in Australia. The applicant has lived in Australia since 2006 (unlawfully since 2008); has worked since his arrival, including establishing a business with a friend; and has had access to migration advice and assistance since arriving in Australia. The Tribunal considers it difficult to fathom that the applicant would not have taken steps to discuss with any migration agent, or the Department, his claimed involvement in an illegal religion, in relation to which he could face harm if returned to China. The Tribunal notes that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
For these reasons, the Tribunal finds the applicant to be an unreliable witness and the findings that follow are made in light of all the evidence and in light of the Tribunal’s assessment of the applicant’s unreliability as a witness.
Well-founded fear of persecution
Follower of Yiguan Dao
The applicant’s protection claims have been set out in earlier paragraphs in this decision record. In summary, the applicant has claimed fear of harm if he returns to China because he is a follower of Yiguan Dao.
After considering all the evidence in this case, and for the reasons discussed below, the Tribunal does not accept that the applicant faces a real chance of serious harm on return to China in the foreseeable future on the basis of his religious beliefs.
The assessment of claims based upon religion has been the subject of judicial and scholarly commentary and guidance, in Australia and other jurisdictions. Acknowledging both the legitimacy – indeed, the necessity - and difficulty of assessments of the genuineness of such professed beliefs, Merkel J relevantly observed in Mashayekhi v MIMA [2000] FCA 321:
14. Furthermore the RRT, although acknowledging the applicant's language restrictions, his fear of the consequences of actively embracing Christianity and some knowledge of Christianity, nevertheless concluded that such factors did not explain the inadequacies of the applicant's knowledge of the Bible and the names of the Disciples.
15. While I accept that, in varying degrees, the matters relied upon by the RRT for not accepting the applicant's account of his conversion to Christianity can be logically probative of the genuineness of the alleged conversion, the weight to be given to such matters depends upon the extent to which the alleged conversion in Iran bore some similarity to the background knowledge the RRT was purporting to bring to bear on that issue. However, little was revealed by the RRT on those matters.
16. While the course pursued by the RRT may not have resulted in reviewable error under Pt 8 of the Act it is important to emphasise that, if the RRT is to fairly and justly discharge its important functions under the Act, it is critical that it:
1. be sensitive to the cultural, social and religious difference that exists in so many of the societies with which its cases are concerned;
2. does not arrive at or state its findings of fact on such issues with greater confidence than the circumstances of the particular case may warrant.
17. Notwithstanding the above matters, and the possibility that there may have been some illogicality or unreasonableness on the part of the RRT in the fact finding process pursued by it in relation to the applicant's credibility, that does not have the consequence that there has been reviewable error of law for the purposes of Pt 8 of the Act: see Minister for Immigration v Epeabaka (1998) 84 FCR 411 at 420-422.
In Wang v MIMA [2000] FCAFC 1599 (at [16]), Gray J commented:
I have some doubt as to the correctness of the approach of the RRT to this finding of
fact. The RRT receives many applications from persons who seek protection visas, claiming well-founded fear of being persecuted by reason of religion. It is inconceivable that every member of the RRT is properly equipped to assess each such applicant on the basis of the applicant’s knowledge of the faith that he or she professes. Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.
The Tribunal does not conclude from Gray J’s comments that Tribunal is precluded from inquiring into the genuineness of the applicant’s alleged religious beliefs in any circumstances, indeed that very inquiry is central to a case such as this. The Tribunal is entitled to question an applicant on his or her beliefs, and to make findings on the applicant’s knowledge, understanding and commitment to the religion.
The Tribunal notes that in WALT, the Tribunal had regard to the applicant’s lack of any real knowledge of the basic tenets of Christianity. In a joint judgment, Mansfield, Jacobsen and Siopis JJ accepted Gray J’s comment that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine: at [28]. However, their Honours went on to state (at [28]-[31]):
Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
We agree with the learned primary judge, that the Tribunal did no more than that. It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding, and his commitment. Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his “conversion”, or at the time of the Tribunal’s hearing. Nor had the appellant practised his claimed new religion in any way which he identified. The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country: cf Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 per Merkel J at 384-385, [11]-[15].
It was also open to the Tribunal, given the significant consequences of his “conversion” which the appellant asserted, to explore what he had done or learned in the practise of his new religion after age 11. It was his “conversion” which, he claimed, isolated him from his family and his village and made it unsafe to return to the country of his nationality. The issue for the Tribunal was whether the appellant had a well-founded fear of persecution by reason of his religion if he were to return to Kenya. His religious beliefs and practices up to the time of the Tribunal’s decision were relevant...

The Tribunal also notes the comments in SBCC v MIMA [2006] FCAFC 129 at [45], where Frennh, Lander and Besanko JJ held that:
Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.
Having regard to all the evidence, and in accordance with the principles laid down in the judgements cited in the preceding paragraphs, and for the reasons that follow, the Tribunal is not satisfied that the applicant is in fact a genuine follower of Yiguan Dao, but has rather advanced this claim for the purposes of securing a permanent visa to remain in Australia.
The Tribunal accepts that it is not the arbiter of religious doctrine as laid down in case law cited above. That said, the Tribunal found the applicant’s knowledge of basic Yiguan Dao facts appeared shallow and superficial, and not of the detail one might expect of someone who professes to have had an association with it for approximately 9 years. Despite being asked questions about Yiguan Dao as well as what the religion means to him and for his life, the applicant was only able to briefly describe that Yiguan Dao followers had been persecuted in China for many years and he gave a very general and unconvincing description of how he incorporates the beliefs and principles of the movement in to his everyday life. The applicant told the Tribunal that if you believe in Yiguan Dao you will have longevity, and it will change your life. He said that Yiguan Dao helps you live a righteous life and protects you from danger. He said that he prays to the major and minor Gods and, in living his life, tries to adhere to the principles of righteousness, intelligence, faithfulness and obedience. The Tribunal was not persuaded by this evidence of the applicant. He said he also helps others and donates to charity – [name] - as a way of incorporating Yiguan Dao in to his life. While this is a noble gesture, many people donate to charities for many different reasons. The Tribunal does not consider that this practice indicates a genuine Yiguan Dao believer. The Tribunal is satisfied that the applicant has little knowledge and little genuine interest in Yiguan Dao, apart from an interest in how it might secure a permanent visa for him to stay in Australia.
Further doubt is added to the applicant’s claim by his evidence that he has not attended any spiritual place to practice Yiguan Dao; he has not associated with any other Yiguan Dao followers; and he has not attempted to persuade others to convert to Yiguan Dao, since he moved to [City 2] in 2009. Rather, it is his evidence that he practices his religion by himself, in his own home. The Tribunal does not consider this to be indicative of being a genuine follower of Yiguan Dao.
The applicant has also given inconsistent evidence and unpersuasive explanations as to when he learned the practice of Yiguan Dao was prohibited in China. The Tribunal considers that this casts doubt over the applicant’s claimed fears about returning to China. The applicant did not persuade the Tribunal that he has ever engaged in any meaningful Yiguan Dao activity and nor did he persuade the Tribunal that he held any firm Yiguan Dao beliefs or that he was knowledgeable about the Yiguan Dao movement. On the basis of his evidence, the Tribunal does not accept that the applicant has been a Yiguan Dao follower in Australia or that he will practice Yiguan Dao or any other religion on return to China.
The Tribunal also considers it significant that the applicant did not apply for a protection visa until [date] May 2015, after his vehicle was stopped by police; 7 years after the last visa granted to him expired; and several years after he says he learned that Yiguan Dao followers were persecuted in China. At the hearing, the applicant said that he did not know that applying for a protection visa was open to him. The Tribunal does not find this explanation persuasive. Given the other credibility concerns as discussed above, the Tribunal finds the delay in the application for a protection visa in this case leads the Tribunal not to accept his core claims as credible or that he has a genuine fear of persecution if he returns to China.
Due to his lack of credibility, and for the above reasons, the Tribunal is not persuaded that the applicant is, or ever was, a committed Yiguan Dao follower. It follows that the Tribunal rejects that the applicant was introduced to Yiguan Dao in [City 1] in around 2007. It rejects that the applicant attended any “spiritual place” in [City 1] or in [City 2] to practice the principles of Yiguan Dao. It rejects that the applicant practices the principles of Yiguan Dao, by himself at home. The Tribunal considers that the applicant has fabricated these claims as a means to apply for protection in Australia. The Tribunal is not satisfied that the applicant will be targeted if he returns to China in the reasonably foreseeable future or that there is a real chance that he will face serious harm in China in the reasonably foreseeable future, if he returns there.
Other claims
The applicant claims he has no close family in China and that it would be difficult to subsist if he was forced to return, because he left his home country so long ago.
The Tribunal has considered the circumstances of the applicant. However, the applicant, on his own evidence, has lived in Australia and been estranged from his parents and [sibling] since 2007. In that time he has managed to live by himself, learn a trade as well as business management skills, and comfortably support himself. This indicates to the Tribunal that he is a capable and resilient individual who would manage to subsist in his home country.
Given the above, the Tribunal finds the chance that the applicant would be seriously harmed on return to China, on the basis of him having no family support or being away from China for so long, to be remote. His fear of persecution on this basis is not well-founded.
After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. The Tribunal finds that there is not a real chance that the applicant will face persecution if he were to return to China now or in the reasonably foreseeable future for a well-founded fear of persecution. The Tribunal therefore finds that the applicant’s claims that he will be persecuted if he returns to China, now or in the reasonably foreseeable future, are not well-founded.
Real risk of significant harm
As the Tribunal finds the applicant does not have a well-founded fear of persecution for one or more of the Convention Grounds, it is considered whether, pursuant to s.36(2)(aa) of the Act, there are 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”).
The term ‘significant harm’ is exhaustively defined in s.36(2A): s5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’ In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part): In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … there is a real chance that SZQRB will suffer significant harm … were he to return to [the receiving country].[246]
The Tribunal considered each integer of the applicant’s claims for protection and the evidence presented in support of those claims, in the context of the complementary protection provisions of the Act. It considered the applicant’s claims that he faces harm from the Chinese authorities because of his religious beliefs as well as because he has no family support in China and has been away from China for several years. It considered these claims individually and cumulatively. For the same reasons as set out above, the Tribunal rejects the applicant’s claims in the context of the complementary protection provisions of the Act.
Having regard to all of the evidence, the Tribunal is not satisfied that there is anything in the claims or evidence that the applicant has provided to satisfy it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that she will suffer ‘significant harm’.
CONCLUSIONS
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 s.36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nicola Findson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless 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.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2016] AATA 3967

9 June 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction