1515452 (Refugee)

1515452 (Refugee) [2018] AATA 1759 (30 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515452
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:30 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 April 2018 at 10:47am

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Good Christian – Social group – Involvement in government sanctioned Church – Victim of alienation – Ostracised by classmate – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, rr 1.03, 1.05A, 1.12, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 October 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of China, applied for the visas on 16 December 2014.
The first named applicant (the applicant) appeared before the Tribunal on 24 April 2018. The Tribunal was assisted with the use of an interpreter in the Mandarin language.
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) of the Act. 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) of the Act, 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.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children.
The second named applicant is the daughter of the applicant and was born [on date], and is therefore over 18, and an adult. To be a dependent child, an adult child must be dependent on the applicant pursuant to r.1.03 of the Regulations. The term ‘dependent’ is defined in r.1.05A. In terms of applications for a protection visa, it requires the dependent person to be wholly or substantially reliant on the other person for financial, psychological or physical support.
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 (the Department) – 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to DFAT Country Report – China, 21 December 2017, a copy of which was given to the applicant in the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicants have provided a copy of the decision of the delegate which indicates as follows. The applicant arrived in Australia on 26 October 2014 on a [temporary] visa. The application for the protection visa was lodged on 17 December 2014. On 23 June 2015, the second named applicant was added to the protection visa application.
The second named applicant had travelled to Australia on 30 November 2013 on a [temporary] visa.
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born in [year] in Hebei Province, China. The applicant was married [in] May 1994. The applicant is of the Han ethnic group and is a Christian. From March 2003 until June 2013, the applicant lists an address in [Xinhua] District, Shijiazhuang City, Hebei. From June 2013 until October 2014 the applicant lists an address in Xinhua District, Shijiazhuang City, Hebei. The applicant completed [a number of] years of schooling ending in Middle School in [year]. From 1996 until 2008 the applicant worked in a [shop]. From November 2008 until October 2014 the applicant worked as [an occupation] at [a workplace]. In addition to the applicant’s daughter, the second named applicant, the applicant lists a son, together with his wife, living in China. The applicant also lists both parents and brother and two sisters living in China.
The application forms completed by the second named applicant indicate that she is not making her own claims for protection. She is therefore relying on being a member of the same family unit as the applicant.
The applicant provided a written statement as part of the application for the protection visa, which provides as follows (not corrected for spelling or grammar):
I am [name], born on [date]. I joined church activities with relatives since I was young. At that moment, I did not really understand what church all about just because I was too young. However, there was a feeling of security and relax whenever I went to the activities, and I would act very actively in the church. In my memory in fresh, I would share my experience to my classmate in school, in the day after of the church activities. I got used to those habit of Christian such as praying. Classmates looked at me like a stranger when I prayed before meal. They started to alienate me and until the end they gave me lots of nickname such as extra-terrestrial and screwball. It caused me a serious psychological injury. The activities not only brought me happiness, but also memories of sadness and frustration. Since then, I did not go to the activities anymore, and pray had became part of my life. I would pray and talk to Jesus secretly, whenever I had difficulties.
When I grew up, I recognized the reason of those experience that I had got through. Church activities are not allowed in China, not even a family size church activities. If they discover by the government, they will give a strictly suppressed, and participants will be arrest. If they acted badly, some of them could be sentenced to die. China is such a country that without freedom of religion.
Until month end of October this year, I came to [Australia]. I could feel the freedom, democracy and respect to different religion and integrated multicultural atmosphere is very strong. There were Falun Gong campaign, Monnon missionaries and Christians chant poetry publicly to praise the Lord. The day I spent in Christian activities suddenly came up in my mind, and just hit the church activity in Campise. It may be a guide from the Lord, so I participated in, where was without barrier of language and weird sight from others. I feel wann to come back to the Lord, as wann as a child found his/her mother. Only a month of travel in here, I could feel the consequence of religion freedom, could be true and honest to my belief without discrimination from dissenter.
I do not want to live without the Lord, he gives me a warm and brothers and sisters give me concern. I do not want my life without them, in which I urge you to consider my situation. Please give me an opportunity to stay in Australia and follow the step of the Lord, and serving the Lord.
The applicant provided to the Department a Certificate of Baptism from [Church 1], dated [in] June 2015. The applicant provided a letter from [the] JP of [Church 1] dated [in] September 2015 indicating that the applicant has been attending church since November 2014 and had also attended Bible study group. It indicates that he was baptised [in] June 2015. The letter indicates that the applicant has a good attitude to his Bible knowledge and to become a good Christian. The applicant also provided six letters, all dated [in] September 2015, being a similar typed letter with the name, date and phone number of the signatories handwritten, indicating that the applicant is a member of [Church 1], that they know the applicant well, that they want to support his application to stay in Australia and that he is a good Christian. The applicant provided photographs and a DVD of his baptism.
The applicant provided to the Tribunal additional documents. These include letters from [the] JP of [Church 1] dated [in] November 2017 and [in] April 2018 indicating that the applicant was baptised [in] June 2015 and is undertaking activity in order to become a good Christian. Undated letters are provided from five individuals who indicate they are members of [Church 1] who know the applicant well. They write to indicate that the applicant is a good Christian to support his application to stay in Australia. Rosters and other documents, mostly in Mandarin text, are provided of [Church 1]. The applicant provided a CD, which he told the Tribunal contains generalised information relating to baptism, and photographs taken in December 2017, which show the applicant at the beach with other individuals, who the Tribunal has assumed are church colleagues.
Independent information
DFAT information
DFAT Country Report – China, 21 December 2017 provides variously as follows:
China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.
Several hundred million people observe to some degree aspects of Buddhism, Daoism and ‘folk religion’. Despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
Government Framework regarding religion
Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.
The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureaux, have significant discretion in implementing the regulations.
Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational. Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools. Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.
In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention.[1]
[…]
[1] DFAT Country Report – China, 21 December 2017, paras 3.15 – 3.24
Christians
In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.
Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or imputed) and Protesters/petitioners).
Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or imputed)). DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
Protestants
The Three-Self Patriotic Movement (TSPM), established in 1949, oversees China’s ‘post-denominational’ (i.e. non-denominational) Protestant church and its estimated 23 million members. The ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation. The Chinese Christian Council (CCC) and the TSPM supervise approximately 60,000 registered Protestant churches and several hundred thousand affiliated meeting points. Approximately 200 pastors graduate every year from China’s single seminary and 20 CCC-run Bible schools. Qualifications from foreign seminaries are not recognised in China.
Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 60 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities. DFAT considers credible reports of authorities pressuring house churches by cutting off electricity or forcing landlords to evict members. Some members of house churches have been able to use registered church facilities for weddings, or to purchase bibles. Others have reported difficulties in hiring even commercial facilities such as hotels or restaurants because of their association with illegal churches. Christian organisations report that house church members have been arrested in 2017 for refusing to register with the TSPM, and of Christian schools being closed for ‘brainwashing’ children.
The Zhejiang provincial government’s 2013 urban renewal campaign led to the demolition of several hundred unregistered churches. The US Commission on International Religious Freedom reports over 1,500 church demolitions or removals of crosses since 2014. The government has punished church leaders who oppose the campaign with heavy sentences (up to 14 years) on public disorder charges, as well as apparently unrelated charges such as embezzlement. Authorities have also targeted lawyers defending them (see Human Rights Defenders (including Lawyers)).[2]
[2] DFAT Country Report – China, 21 December 2017, paras 3.37-3.42

In a 2016 report Freedom House categorises provinces in China in terms of the levels of religious persecution within those provinces (with the categories being low, moderate, high and very high). Fujian province is listed as ‘low’.
Hearing, credibility, findings and assessment
Applicant
The Tribunal is satisfied that the applicant is a citizen of China, and accordingly his claims will be assessed against China.
The Tribunal has the following credibility concerns with the applicant’s claimed church activities in China and the genuineness of the true religious motivation for the applicant joining a church in Australia.
Firstly, the applicant has provided inconsistent evidence as to involvement in a government sanctioned church in China, while an adult.
In the hearing, the Tribunal asked the applicant whether he had had church involvement in China as an adult, following his childhood experience. The applicant indicated that he moved to the provincial capital after he got married at the age of about [age]. In response, he said that a few years after his arrival in the city, in his [age], he attended a government sanctioned church. He said that he attended this church three or four times over the course of a year. He said that this church did not appeal to him as he needed to feel at home, and he did not feel at home in this church.
The Tribunal put to the applicant, pursuant to the procedural requirements of s.424AA of the Act inconsistent evidence given by the applicant in his interview with the delegate. In that interview the applicant answered ‘no’ to the question as to whether he had ever attended a government (authorised) church in China. In response, the applicant indicated that he did not remember answering this question and that he may not have understood it.
The Tribunal does not accept this as explaining the inconsistency. In the recording of the interview, it is clear that the applicant was directly asked if he had ever attended a government church, and his answer was ‘no’. The Tribunal can accept that the applicant may not remember being asked and answering this question, but the Tribunal considers, from the record, that both occurred. The Tribunal is not persuaded that the applicant would be confused as to this relatively straightforward question, or would not have understood it.
This clear and direct inconsistency undermines the applicant’s credibility as to his claimed Christian activities while in China.
Secondly, the applicant has been inconsistent as to the nature and extent of his church activity with his uncle while a child. As put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act, in the interview with the delegate the applicant gave the clear impression that he attended church services with his uncle as a child and learned and became an adherent to Christianity. Such impression was also created in the applicant’s written claims, in which he says he was ‘very actively’ involved in the church.
In contrast, in the Tribunal hearing, the applicant initially gave evidence that he did not, in fact, attend the actual church services with his uncle, but would play with the children in the yard while his uncle attended. The applicant stated that his knowledge of the church was gathered from what he was told by others, rather than from actual participation in church activities.
In response to this inconsistency, the applicant changed his earlier evidence in the hearing to indicate that he did, in fact, attend some church services as a child with his uncle.
The Tribunal considers that the applicant’s written claims, together with evidence in the interview with the delegate, have been inconsistent with evidence given at the beginning of the Tribunal hearing indicating that he did not actually attend church services or activities, other than playing with children in the yard while his uncle attended church services and hearing indirectly as to what occurred.
The Tribunal also notes the following. It is clear from the applicant’s direct evidence to the Tribunal that he did not in fact develop a firm belief in Christianity until he came to Australia. This, too, is inconsistent with the applicant’s written claims that he was ostracised by classmates as a child due to his religious practices, such as praying at school before meals and sharing his religious experiences with other children. It is not consistent to the Tribunal that the applicant would have done these things had he not developed a commitment to Christianity.
Thirdly, the applicant was inconsistent in the Tribunal hearing as to whether there were family/underground churches operating in his provincial capital where he lived for many years.
In the hearing, the Tribunal asked the applicant about his Christian activities in the many years until he came to Australia in his [age], after he decided that the government sanctioned church he attended in his [age] was not suitable. The applicant was asked whether he ever attended a family church. In response, the applicant indicated that there were no family churches in the capital of Hebei Province. After discussing with the applicant independent evidence, including in the portion of the DFAT report on China extracted above, the Tribunal indicated that family/underground churches were a considerable segment of church activity in China (DFAT reporting that there were around 30 to 60 million unregistered protestants in China) and the Tribunal had difficulty accepting that there would be no family/underground churches in a provincial capital.
In response, the applicant changed his earlier evidence to say that it was not the case that he knew that there were no family churches in his province, but that he did not know if there were or not.
The applicant, therefore, in the course of hearing gave directly inconsistent evidence on this issue. The Tribunal is not persuaded that the applicant would have been confused by the question leading to his initial answer. The Tribunal considers that the change in response was a product of the Tribunal questioning the plausibility of the applicant’s original answer. The change in evidence reinforces more significant credibility concerns identified relating to claims by the applicant as to Christian activity or inquiry into Christian activity in Hebei Province.
Fourthly, the applicant has provided inconsistent evidence as to one of his sisters in China being involved with the Christian Church. The Tribunal put to the applicant, pursuant to the procedural requirements of s.424AA of the Act, evidence given by the applicant in the interview with the delegate that one of his older sisters in China was a practising Christian.
This was explained as relevant because, in contrast, earlier in the hearing, the applicant, in response to a question by the Tribunal, said that neither of his sisters were, or had ever been Christian. In response, the applicant indicated that he was honest and he did not know why he previously said that his sister was a Christian.
Whilst tangential to the applicant’s own claims, this inconsistency buttresses credibility concerns identified in relation to the applicant. It reinforces credibility concerns identified as to the applicant’s church activities and connections in China.
Fifthly, the applicant’s sudden joining of a Christian church in Australia, immediately on arrival, in the context of past belief and practice, as found by the Tribunal, is more consistent with the applicant becoming a Christian as a means to found an application for a protection visa rather than demonstrating a genuine commitment to Christianity.
The above proposition was put to the applicant in the hearing. This was on the basis that, on the applicant’s own evidence, he had had no Christian involvement nor had investigated options in the more than 10 years prior to coming to Australia. If the applicant had had an interest in Christianity sparked as a child it might be considered that he would have more meaningfully explored options to practice either lawfully, or without significant risk of state sanction. In response, the applicant said that his childhood experience, in which the family church had been shut down, had scarred him against becoming involved in the future.
The Tribunal accepts that the shutting down of a family church with which the applicant had had peripheral involvement in as a child may have created lasting memories and concern for the treatment of unregistered churches by Chinese authorities. However, as the DFAT report makes clear, there is localised differential treatment by Chinese authorities towards Christian activities, and that many practitioners in family churches manage to attend and worship. Parishioners of state sanctioned churches are able to worship within government limits.
The Tribunal is not persuaded that if the applicant had a genuine desire from childhood to pursue Christianity that he would not have made more significant efforts to do so in a setting with no, or limited risk, from the government. The Tribunal does not accept the applicant’s evidence in the hearing that he attended, on a few occasions, a government sanctioned church in his [age], based on inconsistent evidence in the interview with the delegate, identified above.
That means that, in the Tribunal’s determination, the applicant had no involvement in Christianity in China from the age of [age], nor was it meaningfully explored by the applicant as an option. The Tribunal is not persuaded that a family church with which the applicant had some peripheral involvement as a child being shut down would have been so scarring on the applicant that it would have prevented him from exploring in any way options for Christianity in the many decades that he remained in China. This is in the context of many tens of millions of Chinese managing to practice as Christians in both registered and unregistered churches.
The Tribunal does not consider that the complete failure of the applicant to explore Christianity in China from the age of [age] until he came to Australia in his early [age] is consistent with the applicant joining a church in Australia, for genuine reasons, within days of arriving. The Tribunal considers that church involvement in Australia has been for opportunistic reasons.
The Tribunal considers cumulatively these five credibility issues. They result in the Tribunal not being satisfied that the applicant has been truthful in relation to his claimed Christian activities in China, or that his motivation for joining the church on arrival in Australia was based on genuine belief or for genuine reasons.
The Tribunal is prepared to accept that the applicant would attend a family church gathering with his uncle as a child in order to play with other children outside the assembly. However, the Tribunal is not satisfied that the applicant developed a meaningful religious belief as a child or that he developed any meaningful interest in pursuing Christianity. The Tribunal is not satisfied that the applicant prayed or talked about church which caused his classmates to tease and ostracise him.
The Tribunal is prepared to accept that a family church that his uncle attended, where the applicant played outside, was closed down by authorities due to not being an authorised.
The Tribunal is not satisfied that the applicant took part in or investigated any Christian activities in China from the age of [age] until coming to Australia in his early [age]. The Tribunal is not satisfied with the truth of the applicant’s claim, for the first time in the hearing, that he attended a government sanctioned church in his [age].
In all the circumstances, including the Tribunal’s finding that the applicant neither investigated or participated in any religious activities in adulthood while in China, the Tribunal considers that the applicant joining a church in Australia, within days of arriving, was as a means to found a claim for a protection visa, rather than demonstrating a genuine belief in Christianity, and a desire to practice Christianity.
The Tribunal acknowledges third-party and other evidence indicating that the applicant has been involved in the church in Australia for a number of years. Although the Tribunal does not consider that the applicant joined the church for genuine reasons, it is possible that he may have developed a genuine Christian belief during his years of attending.
However, the cumulative impact of the many credibility concerns identified suggest to the Tribunal significant untruthfulness and opportunism on the part of the applicant. They result in the Tribunal not being prepared to give the applicant the benefit of the doubt that he has developed a genuine belief in Christianity to any meaningful extent, or that he would wish to continue to practice Christianity in China.
On that basis, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on being a practicing Christian in China, because the Tribunal is of the opinion that he would not wish to practice.
There is no independent evidence before the Tribunal that would indicate that the applicant faces a real chance of serious or significant harm in China based on his involvement in a Christian church in Australia, and the Tribunal so finds.
If the Tribunal is wrong, and the applicant has developed some commitment to Christianity as a result of joining a church in Australia for opportunistic reasons, the Tribunal considers that the applicant would be able to continue to practice as a Christian in China in a state sanctioned church without facing a real chance of serious or significant harm.
The Tribunal is not satisfied, on any basis, that the applicant has such conviction to a particular religious path that his desire to practice Christianity would not be satisfied by involvement in a state sanctioned church. In the hearing, the applicant articulated that he could not practice in the state sanctioned church because there is no genuine connection between parishioners and that it is very big.
The Tribunal acknowledges that there are some limitations on the operation of state sanction churches in China as set out in the DFAT report. However, none of those restrictions were articulated by the applicant in the hearing as to why he could not practice in a state sanctioned church. The Tribunal does acknowledge that the state imposes boundaries on church activity such as not to interfere with allegiance to the state and its interests. However, the Tribunal is not persuaded that the applicant has a desire to proselytise in public or advocate against state interests or practice his religion in any way that would cut across state limitations.
Therefore, to any extent that the applicant wished to practice Christianity on return China, the Tribunal considers that the applicant would be able to worship in a state sanctioned church without facing a real chance of serious or significant harm.
In making its findings and assessment, the Tribunal has taken into account supporting letters from [the] JP of [Church 1], and other individuals from the church attesting to the applicant being a good Christian, and other documents from the church provided by the applicant.
Second named applicant
In the Tribunal hearing, the applicant indicated that the second named applicant works full-time [and] that the applicant does not support his daughter, nor does she rely on him. The Tribunal noted to the applicant that as an adult, to be dependent on the applicant, she needed to be wholly or substantially reliant on the applicant for financial, psychological or physical support.
In response, the applicant changed his evidence to say that, in big matters, rather than small matters, he does support his daughter. He indicated that he pays the rent.
The applicant gave directly inconsistent evidence on this issue in hearing within a matter of minutes. This is consistent with other instances in which the applicant has changed his evidence in response to the Tribunal raising issues and concerns.
The inconsistency and shifting in this evidence together with the cumulative impact of the various other credibility issues identified in relation to the applicant cause the Tribunal to not be satisfied that the second named applicant is dependent on the applicant. The Tribunal is prepared to accept that the applicant makes a contribution towards rent, where he and the second applicant live, but is not otherwise satisfied that he pays the whole of the rent or that the second applicant is dependent on the applicant.
In the evidence of the applicant in the interview with the delegate in October 2015, he indicates that the second named applicant also attends his church [and] is about to be baptised. In the Tribunal hearing, however, the applicant indicated that his daughter has not yet been baptised. He said that it would be difficult for him to characterise her level of religious involvement.
The second named applicant did not make claims on her own behalf. Although the second named applicant might have made her own claims to be at risk of harm on return to China based on her Christianity, she did not make such claims. She also did not attend the interview with the delegate nor attend the Tribunal hearing to which she was invited.
It is not for the Tribunal to construct claims not made unless, at least, reasonably implicit. The Tribunal is not satisfied that the applicant has taken the opportunities provided to her to raise a claim on the basis of religion. The avoidance of doubt, the Tribunal is not satisfied on the evidence before it that the second applicant faces a real chance of serious or significant harm based on religion or on any other basis.
Both applicants
In summary, the Tribunal is not satisfied that either applicant has a well-founded fear of being persecuted for reasons set out in s.5J(1) of the Act.
In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants been removed from Australia to China, there is a real risk that they will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
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.
…

[2018] AATA 1759

30 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction