1515017 (Refugee)

[2018] AATA 1423

1515017 (Refugee) [2018] AATA 1423 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515017

COUNTRY OF REFERENCE:                  China

MEMBER:Melissa McAdam

DATE:9 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2018 at 10:45am

CATCHWORDS

Refugee – Protection visa – China – Religion – Christian – Local Church gathering participant – Applicant unable to describe in detail the teachings – No evidence of the applicant being wanted in China – confused and contradictory account of facts – No real chance or risk of harm to the applicant in China –  Department’s investigation – Bogus document – Entered on a false passport

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 438, 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 claims to be a citizen of China, applied for the visa on 12 March 2014 and the delegate refused to grant the visa on 21 October 2015.

3. The applicant was represented in relation to the review by her registered migration agent.

   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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. 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.

    SUMMARY OF CLAIMS AND EVIDENCE

    Protection visa application

19. The following is a summary of the claims and information provided by the applicant in her Protection visa application:

    a.The applicant was born on [date] in Fuqing, Fujian province, in China.  She submitted a copy of her Chinese ID card and a copy of her Chinese Marriage Certificate.  In China she lived in [a named] village apart from one year from August 2007 to August 2008 when she lived in Quanzhou City in Fujian province; approximately 21 months when she lived in [Town 1] in Jiangxi province between January 2009 and October 2010; and from January 2011 to October 2013 when she lived in [Village 1] in Jiangjing Town in Fuqing City.

    b.She arrived in Australia on 16 December 2013 on a Visitor visa using a false name. She submitted a copy of the false passport she used to enter Australia.

    c.She is a devout Christian and a major activist for the Local Church, also known as ‘The Shouters’. The Local Church is regarded as an evil cult by the Chinese government. She has been chased by the Public Security Bureau (PSB) and had to leave China.

    d.Her parents were farmers and wanted the applicant to study hard. She was not a good student. She refused to go to school anymore after she completed Junior High School. Not long after this her friend found a job for the applicant in Quanzhou city, which was far from the applicant’s home town.  Her parents were angry with her for not continuing school. She went to Quanzhou in August 2007 and worked there [in] a [store].

    e.In January 2008 she met a young man [Mr A], who worked [in] Quanzhou. He was also from Fuqing. They fell in love and developed a close relationship.  However they started to quarrel. In April 2008 the applicant left Quanzhou and returned to Fuqing after a big quarrel.

    f.In May 2008 the applicant found out she was three months pregnant. She returned to Quanzhou but could not find [Mr A]. Her parents were upset but tried to help her. In [2008] her daughter was born.

    g.In January 2009 she followed [Ms B] who she had studied with at school to [Town 1] in Ji’an County in Jiangxi Province.  [Ms B]’s uncle, [Mr C], worked at [a] factory and helped them find jobs there. They lived together with [Ms D] and her husband [Mr E], who were also from Fuqing, in [Town 1]. 

    h.[Ms D] and [Mr E] were devout Christians and secret members of the Local Church. During the following months they slowly evangelised the applicant and [Ms B] and led them to study the Recovery version of the Bible

    i.In June 2009 the applicant and [Ms B] were baptised at their home in [Town 1].

    j.In July 2009 [Ms D] and [Mr E] established a secret meeting group of the Local Church in [Town 1]. There were nine members, all from Fuqing. They secretly gathered three times a week on Fridays, Saturdays, and Sundays, normally in the evenings.

    k.In October 2010 the applicant returned to Fuqing to see her parents and daughter. With [Ms D]’s help she got in contact with the Local Church in her hometown.  She attended a Training at the Local Church where she again met [Mr A], who had also become a Christian. He told the applicant he had looked for her and heard she had his daughter. He told her her parents disliked him and regarded him as a bad person so refused to tell him anything about the applicant, and did not allow him to see their daughter.

    l.She found that [Mr A] had greatly changed. They both fell in love again. On [date] January 2011 they married.

    m.On [date] their son was born.  Because they had violated the Family Planning policies they had to pay a big fine.  Corrupt officials extorted money from them. They could not legally register their marriage until [date] May 2012.

    n.In July 2012 [Ms B] asked the applicant to help her obtain [goods] for low prices in Fujian to transport to [Ms B]’s new [shop] in Jiangxi.  From then on the applicant travelled between Fuqing and Jiangxi every month to take [products] to [Ms B] and also bring her the Recovery bible and other Local Church promotional material.

    o.In 2013 the Local Church in [Town 1] had 100 members, mostly local residents.

    p.On [date] October 2013 while the applicant was in [Town 1], [Ms D] and [Mr E] organised a secret Local Church meeting in [Town 1] which was raided by the police. [Ms B] and the applicant were late to the meeting because they were organising stock at [Ms B]’s store so they avoided the raid. Assisted by [Ms B]’s uncle they both immediately left Jiangxi and returned to their hometown in Fuqing. The applicant was afraid the police would come to arrest her so she did not remain at her home but went to hide at a church sister’s place at the mountain village in [Town 2].

    q.On [date] October 2013 many police went to the applicant’s home looking for her. Her mother, brother, and husband’s families have been questioned and investigated by the police many times.

    r.The applicant is regarded as a key member of an evil cult who played an active role in the establishment and development of illegal groups in [Town 1]. She has learned that [Ms D] and [Mr E] and other activists have been arrested and detained by the PSB in Jiangxi.

    s.On [date] December 2013 a snake head arranged her departure from China on a passport under a false name. She learned before she left China that [Ms B] was arrested by the police in Sanming, Fujian.

    t.In Australia she attends the Local Church actively.

    Departmental Interview, 24 July 2014

20. The following is a summary of the claims and information provided by the applicant in her Departmental Interview:

    a.The applicant confirmed that the information in her Protection visa application is all correct and there are no mistakes in it.

    b.The applicant worked [in] Quanzhou from August 2007 for a few months and then worked in a [factory] in Jiangxi from January 2009. She worked for about half a year there. She worked there for more than six months. She worked there for one year. She has not worked anywhere else in China. She did not go back to Jiangxi to work because she met her boyfriend and he supported her since then. 

    c.She and her husband married when they reached the legal age of marriage. She lived in [Village 1] in Fuqing City before she came to Australia.  She has one [brother] in China.

    d.She obtained the falsified passport [in] 2013.

    e.She came to Australia to obtain protection. She arrived on 16 December 2013. She lodged her Protection visa application on 12 March 2014.  She tried several places found for her by church sisters and brothers.  These places told her how much money it would cost and would not listen to her story. She then found her current agent.

    f.In Australia she does not work. She borrowed money to support herself. Then she was given work rights. She did not know anyone in Australia but the church people loaned her money.

    g.Her husband, daughter and son are in China. Her husband does nothing in China. He is [an occupation]. [Details of children].

    h.She was in contact with her husband in the past but now he cannot charge his mobile phone with credit. She last contacted him in January. 

    i.She did not know about Protection visas before she came to Australia but her agent in Australia told her. She did not remain in [Country 1] on her way to Australia because she did not know where she was. She just stayed in a hotel for three days there. She was accompanied to Australia by a person she referred to as ‘uncle’.  He told her not to leave the hotel in [Country 1]. She does not know who he was or his name.

    j.She was wanted in China. She has no proof of this. The police are after her because she participated in a Local Church gathering.

    k.She decided to apply for a Protection visa after the brothers and sisters told her to. This was as soon as she came to Australia. She did not lodge the application until a few days before her visa was to expire because people did not want to listen to her claims. Then the brothers and sisters at church told her to talk to her current agent.

    l.She left China because she can’t live there and had to flee.  The police were trying to catch her because she participated in a Local Church gathering.  The police consider them shouters, an evil cult.

    m.She has not had any difficulties with the authorities in China.  In October 2013 [Ms D] and [Ms B] organised a secret gathering and the police came but luckily she was not there. She thinks someone confessed and gave up her name.  She will be arrested if she returns to China.

    n.She got involved in the Local Church even though it is prohibited because they need to restore the concept of Jesus.  She does not go to a registered church because there is no Jesus there.  She has not been to a registered church.  They have pastors but her church does not have pastors. 

    o.She did not marry her husband in 2008 because they were young and they argued. Later God made them be together. She met him in January 2008. They separated in April 2008. She met him again in January 2010.  He went to see her family in 2010.

    p.She started practicing Christianity in June 2009. She started participating in the gatherings in July 2009.  Before this she was not involved in Local Church activities.  She was baptised in June 2009.  She had her child before marriage and was humiliated. She went to Jiangxi and found the church.  This was after they spread the gospel to her.  Baptism means accepting Jesus as your saviour. You immerse yourself in water and then stand up.

    q.The Local Church pray God words every day and call out the name of Lord God. They are called the shouters because they call the name of God every day. The church focus is upon Jesus.

    r.Her husband is part of the Local Church in China. He is the same as her and they were active in the Local Church together. He has not had problems because the applicant is more serious than he was. She practices every week and he just occasionally accompanies her. He is similar but not like her going to Jiangxi to meet the brothers and sisters there.

    s.[Mr C] told the applicant she was wanted and that she should leave and hide.  He was involved in the Local Church but did not participate in the gathering. [Ms B] escaped with her boyfriend.

    t.The Local Church believes in the restoration of God. There is nothing else it believes in. The church is to restore Jesus to be everything.  Jesus is restored by believing in Jesus and we are the limbs of Jesus and should eat, drink and enjoy Jesus.

    u.Lee ChangShou went to America to restore the gospel. That is not all but she did not read much.  He is not still alive. She does not know when he died. Watchman Nee spread the gospels for God and was locked up for 20 years. He is not still alive. Lee wrote notes to the bible. She can’t remember what books have been written. She has read the works of Watchman Nee and the study of the bible.

    v.The applicant was not involved in any other church activities in China. She fears arrest in China.  They had secret gatherings. There was nothing else.

    w.She attends the Local Church in [Australian suburb 1]. She gets there by train. She knows the route but cannot say it. She does not know its address. She attends it once a week in the evening service. She attends it three times a week, for prayer reading and bible reading and a youth meeting. The  prayer meeting is on Wednesdays. There are no meetings Monday or Tuesday. They don’t have a pastor.

    x.She occasionally attends a city church. It is called [name] Church.  

    y.She started attending the Local Church a few days after she arrived. On the third day she met a man at a train station who spread the gospel. She told him she is part of [a certain] church. 

    z.The Local Church considers sin very important. As long as they go to the church and confess to Jesus and change then God will forgive them. At the Local Church gatherings they enjoy Jesus and read the holy word, nothing else.

    aa.She cannot go to a government sanctioned church because it does not have Jesus.

    bb.The Local Church is different from other Christian churches because the Local Church  believes in the child of God; their bible and prayers are different; they believe every word in the bible is the revelation of the holy spirit; they call out the name of the lord aloud; they read the bible differently, using the pray method; and they don’t celebrate Christmas or Easter.

    cc.She was attracted to the Local Church by a brother and sister who spread the gospel to her.  She met them in a [factory] in Jiangxi where they spread the gospel. She got God and felt so relaxed and all her burdens lifted.

    dd.The delegate put country information to the applicant that in Fujian the Local Church gatherings are tolerated. She responded it is not true because they are arresting the Eastern Lightning people and the government think they are the same.

    ee.There are no other reasons she cannot return to China.

    ff.She submitted photographs to the Delegate. They are of brothers and sisters praying together. One photo is from China, of her with an old man. He is [name deleted].  

    gg.She has not asked her husband if he has ever been to Australia because she is very busy.

1. The applicant submitted her original Chinese ID card to the delegate. She also submitted several photographs of herself with other people and a letter on ‘Local Church in [Australian City 1]’ letterhead, dated [July] 2014, confirming that the applicant has been meeting regularly with the church since December 2013, signed [‘Responsible Brothers’].

   Delegate’s Decision

2. The Delegate accepted that the applicant had travelled to Australia on a falsified passport. The Delegate accepted the claimed identity of the applicant.

3. The Delegate did not find the applicant’s claims to have been active with the Local Church in China, credible. The Delegate did not accept the applicant is a member of the Local Church.  The Delegate found that the applicant had fabricated her protection claims.

   Information to the Tribunal

   Pre-Hearing Submission

4. On 13 February 2018 the applicant submitted several photographs of herself with other people, stated to be “Photos of the applicant’s church activities in Australia”, and a letter on ‘Local Church in [City 1]’ letterhead, dated  [February] 2018, confirming that the applicant has been meeting regularly with the church since December 2013, signed by [‘Responsible Brothers’].

   Tribunal Hearing

5. The applicant appeared before the Tribunal on  21 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The following is a summary of the information she provided at the hearing:

   a.She confirmed that all the information in her Protection visa application is correct and there was nothing she wished to change or add to.

   b.She was born in Fuqing. She has also lived in Quanzhou city, from August 2007 until April 2008.  She lived in Jiangxi province from January 2009 until October 2010.  She then returned to Fuqing until July 2012.  After this she went back to Jiangxi province and moved back and forth between there and Fuqing.  She also lived in Jiangjing in Fuqing City in 2011 until [May] 2012 when she and her husband registered their marriage. During that period of time she also went back to her village.

   c.She married her husband on [date] January 2011 according to local traditions and they registered their marriage on [date] May 2012.  They started living together in December 2010 in Jiangjing in [Village 1].

   d.Her husband is in China in his own home in [Village 1] but she doesn’t have contact with him.  They have two children who live with her husband. She very rarely contacts her children. She last contacted them during Chinese New Year in 2015.

   e.Her marriage ended on [date] November 2016.  She divorced her husband because the police kept him under investigation all the time and he was very unhappy about this.  The police did this because they could not get her and they believed she was in touch with him.  She divorced in Australia. She submitted her Divorce Order from the Australian Federal Court.

   f.She does not know if her ex-husband has been to Australia. She has not asked him about this.  She did not discuss with him her travel to Australia, because at the time she was fleeing. He was kept under investigation at the time so how could she contact him.  She was staying in [Town 2] at the time. She was there for just two or three days.

   g.Her agent [confirmed] that he knew the applicant’s husband had been to Australia, but that he did not tell the applicant.

   h.Her family borrowed tens of thousands of yuan to pay for her travel to Australia. They started borrowing the money after she arrived in Australia.  This was to repay [Mr C] who had paid for her travel.  He did this while she was in [Town 2].

   i.She went to [Town 2] on the night of [date] October 2013. She left China in December 2013.  She was living in [Town 2] up until she left China.

   j.She fled to [Town 2] and stayed there for a couple of days before she came to Australia.  She stayed in [Town 2] for two or three weeks and then came to Australia.

   k.While she was in [Town 2] she contacted her family but she did not contact her husband. 

   l.She telephoned her husband but he missed the phone calls. 

   m.She can’t return to China because the police will get her. Her life is at risk. The police in Jiangxi believe she belongs to an evil cult. They allege she is a member of the ‘Shouters’.

   n.She went to Jiangxi in July 2012 because [Ms B] was running a [shop] and asked the applicant to transfer wholesale [goods] to her there.  She agreed to help her because [Ms B] was her classmate and sister in the congregation.  The applicant took the opportunity to bring the Recovery version of bible and other materials to Jiangxi.  She obtained these from Fuqing city.

   o.It took the applicant just over ten days to travel to and stay in Jiangxi. She did not take her [baby] and young child with her. They stayed with her mother-in-law when she went to Jiangxi. She went to Jiangxi once a month.  She did this just because [Ms B] needed her help. She was not employed by or working for [Ms B].  She stayed in Jiangxi to spend time sorting out the [goods] and to attend the congregation on Fridays and Sundays. 

   p.The applicant joined the Local Church in June 2009, when she was baptised. Her first experience with the Local Church was her baptism in June 2009. She started attending her congregation in July.

   q.Her first contact with the Local Church was not really her baptism in June 2009.  When she went to Jiangxi in January she met two people, [Mr E] and [Ms D].  She got to know the Lord in March 2009 when they preached to her the Recovery version.  By preach to her she means they asked her to read the bible in the form of prayer.  They did not preach to her. They asked her to read the bible with them in the form of prayer.  Together they read the Recovery version of the bible. What they read in the bible were the words from the lord in prayer.  Specifically what they read in the bible was the bible.

   r.She was baptised in June 2009 because in March she read the bible in prayer. One night she was crushed by something dirty and felt like she was going to die.  All of a sudden she saw a light and a hand showing her the way ahead. It suddenly occurred to her it was God calling to her to come back. The next day it occurred to her that when they read the bible they read the first version John chapter one, that God is light there is no darkness in him.

   s.She resumed her relationship with her husband in October 2010. She does not know how long he had been attending the church. He told her he had been looking for her for a long while.  She does not know how long he had been living in Fuqing.  She knows nothing about him before they met again in October 2010.

   t.She had last seen her husband in Quanzhou.  When she met him again in Fuqing she asked him where he had been and he told her he had been looking for her for a long time. He met her parents to try to find her but they disliked him and refused to tell him where she was. She doesn’t know when he met her parents. She didn’t ask him much.   She did not ask her parents when they met him. They did not tell her anything regarding him.

   u.The Jiangxi police want to arrest her because they believe she belongs to Shouters, an evil cult.  They believe she is an important member.  They believe this because she was reported, so they have evidence. [Ms D] reported her because she was arrested and interrogated by the police. 

   v.At the beginning there were nine people in the Jiangxi congregation but the number grew to 100 in 2013. The applicant was a leader in the congregation because she was one of the first nine participants. For a long period of time she transported bibles and other materials.  She was a leader because she attended the Friday prayer congregation, Saturday bible reading and Sunday communal congregation.

   w.On 20 October 2013 the police made a sudden raid on [Town 1] when there was a congregation. She was not there.  There were about 20 people at the congregation. They were all arrested.  They were detained for a couple of months before being released, except for [Ms D] and [Mr E].

   x.The congregation had occurred at [Ms D]’s home.  The applicant was in [Ms B]’s shop helping with the [work] at the time.  She arrived at the congregation late.  It was about 5 pm in the evening. She saw the police cars there and one police officer at the door. She left immediately.

   y.[Ms B] contacted her uncle who organised a van to drop the applicant off at a sister’s place.  This sister was a classmate of the applicant in [Town 2].  [Ms B] stayed at her uncle’s.  [Ms B] later ran away to Fuzhou city finally.  After the applicant arrived in Australia she learned that [Ms B] was arrested.

   z.She last saw [Ms B] at her uncle’s place.  [Ms B] had contacted her uncle when they saw the police and they went to his place. She did not stay with [Ms B] because when she contacted her classmate in [Town 2] she told the applicant to go to her there because it was very safe.  She did not take [Ms B] with her to [Town 2] because her classmate did not know [Ms B].

   aa.[Ms B]’s uncle lived in [Town 2].  [Ms B]’s uncle’s home was 20 to 30 minutes’ drive from the congregation. It was three hours’ drive from [Town 2].  [Town 2] was two or three hours’ drive from [Town 1]. Fuqing is about [several] hours’ drive from [Town 1].

   bb.She stayed in [Town 2] until she left China. She made a mistake previously, she was not there for 2 or 3 days or for 2 or 3 weeks. She stayed there one or two months. 

   cc.She did not return to Fuqing because the police visited her parents’ home.  She knows this because her parents told her so.  She did not return to her home with her husband’s parents because she thought the police would probably visit there too. Her husband was under investigation anyway.  Their telephone line was monitored so she could not call them.  The police asked her family to cooperate with them. Her mother told her this. Her classmate in [Town 2] told her father that the phone was monitored.  Her classmate knew this because the applicant’s parents told her. They lived very close to her classmate’s family and they told her parents their phone was monitored and they called her to tell the applicant so she was informed.  That is how the applicant’s mother found out their phone was monitored.

   dd.[Ms D] told the police about the applicant because the police did not stop interrogating her. The applicant knows this because her parents told her so. They called her classmate’s family and asked the applicant to pick up the phone.  Her parents knew because the police visited her family and interrogated them.  If the police did not produce any sort of evidence how could they know?  The police told her parents what happened. This was a couple of days after they arrested the congregation.

   ee.She started attending the church in Australia in December 2013.  The church is in [Suburb 1] but she doesn’t know its address.

   ff.Her religion is ‘Jesus is our life’. She believes him to be the trinity.  Her religion is the Local Church.  Jesus is the trinity because God, Jesus, and Jesus is the lord, spirit soul and the body.  God found the corruption of humans and as a result sins occurred so the body was crucified. God became Jesus and was crucified, and was resuscitated and raised to heaven.  This describes the Trinity, just the Trinity. Jesus is a great God.

   gg.The applicant practices her religion by praying before her meals and attending church regularly.  She eats the body of the lord and enjoys the God and reads the bible in prayer. She enjoys the lord’s words.  She also attends the prayer and bible readings.  They did this too in China but had to do it secretly.

   hh.In Australia she attends church every week.  She last attended on the previous Sunday.  At this gathering there was communion, hymn singing, bible reading in prayer and morning revival holy words. Then there is sharing from the brothers and sisters and it ends with a banquet of love.

   ii.The bible readings last Sunday were the morning revival words. They said people should become something new and possess the synchronicity of Jesus.  They read a lot of verses but the applicant cannot remember them.  They mainly talked about the idea that we are going to be a new person.  This is in the Old Testament when it deals with Hebrews.  Particular verses are from particular chapters of the bible, from the morning revival holy words.  She also remembers that a brother declared another brother had passed away and asked them to pray and attend his funeral.

   jj.She reads the Recovery Version of the bible with the congregation every week.  She also reads it every day after she finishes her work.  The bible she reads is the Recovery version of the New Testament.  She has read the complete book a few times but she can’t remember it as her memory is a bit poor.  She reads it every day.  She can remember it was completed by more than 40 apostles including Matthew, Mark, Juhan, Luke until the end which is Revelation, which is all about the end.  She confirmed it was completed by more than 40 apostles.

   kk.She has also read a story from the Old Testament.

   ll.The main stories in the New Testament are Mathew who deals with the family of God.  There is an introduction of God’s family, then it is the story of Adam and Eve.  Revelations in the New Testament deals with the completion of God’s salvation and God’s kingdom, the end. The New Testament covers human corruption and God’s redemption. She can’t remember it very well.

   mm.The Tribunal put to the applicant the effect of s.91R(3) of the Act regarding her activities in Australia. She responded that it was not relevant to her case, the photos she had submitted of her church activities were taken by someone else. She attends the church because she likes to enjoy the lord. She did not go for the purpose of getting photos.

   nn.The Tribunal put to the applicant that there was a s.438 Certificate on file regarding the Department’s investigation into the authenticity of the Chinese passport she used to travel to Australia. The Tribunal informed the applicant it did not consider these papers relevant to its assessment of her claims except to confirm her evidence that she travelled to Australia on a falsified passport. The applicant indicated she understood and had no further response.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant submitted copies of her Chinese ID documents. On the basis of these documents and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of China. The Tribunal assesses her claims against China as her country of nationality and receiving country.

   Credibility

   Church activity and problems in China

7. The Tribunal found the applicant’s account of her adoption of the Local Church faith vague and confused. She initially stated at hearing that her first experience with the Local Church was her baptism in June 2009. However she later stated this was not her first contact with the Local Church as she had met two people in January 2009 who preached to her. When the Tribunal tried to explore with the applicant how the couple preached to her the applicant gave vague and evasive responses, eventually stating that they did not preach to her but read the Recovery version of the bible with her. When the Tribunal then tried to explore with the applicant the nature of the readings she claimed to have done with couple she was not able to provide any details, eventually merely stating that what they read from the bible was the bible. The Tribunal finds the applicant’s inability to describe the nature of the readings, or passages, in the bible significantly undermines her claim to have been exposed to the Local Church in China through bible readings with two acquaintances.

8. The Tribunal considers that the applicant was not able to show she was exposed to Local Church teachings and gatherings in China. If she had been participating actively in the Local Church in China, regularly each week and up to three times a week, the Tribunal would expect her to be able to describe in detail the teachings and content of such activity. In contrast the applicant struggled to provide even a coherent outline of the Local Church and its texts.  The Tribunal does not accept that the applicant was a member of the Local Church in China.

9. The Tribunal found the applicant’s account of the police raid on the [Town 1] congregation, and the aftermath, inconsistent and confused.  In her Protection visa application statement she wrote that both she and [Ms B] immediately left Jiangxi and returned to their hometown in Fuqing.  However in her Tribunal hearing she stated she went directly from [Ms B]’s uncle’s place to [Town 2] in the mountains on the night of [date] October 2013. She also stated that [Ms B] went to, and stayed at, her uncle’s place but later ran away to Fuzhou.  In her Protection visa application statement the applicant wrote that [Town 2] was in Fuqing. However during her Tribunal hearing she stated that [Ms B]’s uncle lived in [Town 2], which was just 20 or 30 minutes’ drive away from the where the church gatherings were held in [Town 1]. She then stated that [Town 2] was about two-three hours’ drive from [Town 1].

10. In her Protection visa application statement the applicant wrote that she learned before she left China that [Ms B] was arrested by the police in Fujian.  However she contradicted this at her Tribunal hearing stating it wasn’t until after she arrived in Australia that she learned [Ms B] had been arrested.

11. The applicant also gave a confused and contradictory account at her Tribunal hearing of the time she stayed in [Town 2] prior to her departure to Australia. She initially stated that she stayed in [Town 2] for just two or three days so was unable to contact her husband before her departure.  She then confirmed that she was in [Town 2] for just two or three days.  At a later time in the hearing she stated she was in [Town 2] for “two or three weeks” and then came to Australia.  Towards the end of the hearing she contradicted this again stating that she stayed in [Town 2] for one or two months before coming to Australia.  She also clearly stated in her Tribunal hearing that she did not return to Fuqing, contradicting her information in her written Protection visa application statement.

12. The applicant gave confused evidence about contacting her husband and family while in [Town 2].  She initially stated she did not contact her husband because he was under investigation then later stated she did call him but he did not receive her calls.

13. The applicant also raised for the first time in her Tribunal hearing that it was [Ms D] who had informed on her to the police. When the Tribunal tried to explore with the applicant how she knew this she gave shifting and evasive explanations, finally reverting to circuitous speculation with no apparent basis in logic or truth.  She gave similar evasive and confused responses in regard to how she knew the police had gone to her parents’ place to look for her.

14. In view of the poor quality of the applicant’s evidence the Tribunal does not accept that the Chinese authorities are looking for the applicant or have any adverse  interest in her, because they consider her a key member of the Local Church.

    Church activity in Australia.

15. The applicant was unable to demonstrate much actual knowledge of her claimed religion or engagement with its teachings and beliefs.  She claimed to have belonged to the Local Church for almost ten years yet lacked the depth to her faith, understanding and practice of the religion, that would be expected from a long-term adherent.

1. The Tribunal found the applicant’s evidence regarding her involvement in the Local Church in Australia lacking in detail and clarity.  She could not easily explain her religion, initially stating it to be ‘Jesus is our life’. When asked what she meant by this she gave a very brief and confused account of the Holy Trinity and how Jesus relates to the Trinity. She also spoke of the  Resurrection as something that describes only the Trinity.  Given the level of confusion and error in her account of such basic Christian principles the Tribunal does not accept the applicant has read and studied Christian teachings, or the Recovery bible, as claimed.  She demonstrated a minimal and confused  level of knowledge and understanding that at times was less than superficial.

2. The applicant claimed to attend the Local Church and to participate in the weekly gatherings. However when asked to describe the Christian messages and teachings referred to in the most recent gathering she had attended, the Sunday previous to the date of the hearing, she struggled to provide a meaningful response.

3. The applicant claimed to read the Recovery version of the bible every day. Yet when asked to speak about the content of the bible she was able to state very little, and reverted to claiming her memory was poor.  When asked about the New Testament she then provided vague and confused responses some of which appeared to relate to Old Testament stories. She eventually stated she could not remember the New Testament very well. The Tribunal considers that the applicant’s responses substantially undermine the credibility of the applicant’s claim to have read and studied the bible and to have adopted the Local Church faith or any Christian teachings and faith.

4. In light of the above significant concerns the Tribunal does not accept the applicant is genuinely a member of the Local Church, or that she has adopted the Local Church faith, or that she has any interest in adopting the faith.

5. The Tribunal does accept that the applicant has attended a Local Church in Australia on occasion. She submitted several photographs of herself with other people in a Christian church setting and a letter on ‘Local Church in [City 1]’ letterhead stating that the applicant has been involved with the church. However, given its serious concerns about the applicant’s genuine adoption of the Local Church faith the Tribunal is not satisfied that the applicant has attended the Local Church or participated in church activity for any purpose other than strengthening a refugee claim in Australia. The Tribunal therefore disregards this activity in Australia in assessing her refugee claim, pursuant to s.91R(3) of the Act. The Tribunal will however consider it in assessing her claims for protection under the Complementary Protection criterion.

   Fear of Harm in China

6. On the accepted evidence the applicant is a person who has attended Local Church gatherings in Australia but who is not genuinely an adherent of the Local Church or its faith.

7. The Tribunal considers that the applicant’s attendance at Local Church gatherings in Australia would not put her at any risk of harm on return to China. There is no indication the Chinese authorities know she has been to Local Church gatherings in Australia. Even if they were aware or discover this the applicant is able to readily disabuse them of any suspicion that she is a genuine Local Church member. The Tribunal is not satisfied there is any real risk the Chinese authorities would show any sustained adverse interest in the applicant, or pursue or target her, simply because she has attended Local Church gatherings in Australia.

8. The applicant has not presented any other claims to fear harm in China and none arise on the evidence and information before the Tribunal. The Tribunal is therefore not satisfied there is a real chance or risk of harm to the applicant in China.

9. On the information before it and for the reasons given above the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in China. The Tribunal is also not satisfied there is a real risk the applicant will be subjected to significant harm on return to China.

   CONCLUDING PARAGRAPHS

10. 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).

11. 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).

12. 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

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

    Melissa McAdam
    Member