1516128 (Refugee)

[2018] AATA 5413

1516128 (Refugee) [2018] AATA 5413 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516128

COUNTRY OF REFERENCE:                  China

MEMBER:Nicola Findson

DATE:21 November 2018

PLACE OF DECISION:  Perth

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

Statement made on 21 November 2018 at 3:01pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christian – World Mission Society Church of God – fear of arrest – quality of medical treatment – ability to subsist – conduct for the sole purpose of strengthening claims – delay in applying for protection – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Andaraj Subramaniam v MIMA [1998] FCA 305
Kopalapillai v MIMA (1998) 86 FCR 547
Mashayekhi v MIMA [2000] FCA 321
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
SBCC v MIMA [2006] FCAFC 129
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZVTC v MIBP [2018] FCA 824
WALT v MIMA [2007] FCAFC 2
Wang v MIMA [2000] FCAFC 1599

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 is [an age] year-old male citizen of China who arrived in Australia [in] February 2008, as the holder of a student visa.  He applied for the protection visa on 28 February 2013 seeking to invoke Australia’s protection obligations so that he does not have to return to China, where he claims to fear harm on the basis of his religious beliefs.

3. The delegate refused to grant the visa on 22 October 2015. The delegate was not satisfied that the applicant was a credible witness or that he had a well-founded fear that he would be targeted for persecution by the Chinese authorities.  The delegate was not satisfied that there was a real risk that the applicant would suffer significant harm if he returned to China, and therefore he was not a person in respect of whom Australia has protection obligations.

4. On 24 November 2015, the applicant applied to the Tribunal for a review of the delegate’s decision.  The applicant submitted the application for review, coupled with a copy of the delegate’s decision record, which the Tribunal accepts as being submitted for the purposes of the application for review.

5. The applicant appeared before the Tribunal on 7 February and 3 March 2017, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   RELEVANT LAW

6. 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

7. 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).

8. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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.

    Background and protection claims

21. The Tribunal has before it the Department’s file relating to the applicant.  The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. 

22. In his application for a protection visa, the applicant declares that he was born on [date] in Fuqing, in the Fujian province, China.  He also declares to be a citizen of the People’s Republic of China and not to hold citizenship, or to be a national, of any other country.

23. The applicant departed China and arrived in Australia [in] February 2008, as the holder of a student visa.  The applicant’s student visa ceased in March 2010.  After this time, and up until lodging his protection visa application on 26 February 2013, the applicant remained in Australia unlawfully.

24. The following is a summary of the claims and information provided by the applicant in his protection visa application:

    ·He joined the World Mission Society Church of God – a religion not allowed in China - in 2011.  In China, Church of God members cannot pray publicly. If they are found out, they are arrested by government authorities.  Not all Christians are persecuted in China, but some – including those who belong to the Church of God - are persecuted.  He has been told by fellow church members that in China, “the believers of other religions try to lock Church of God members in small rooms and convert them from being a member of the Church of God to their own religion”.

    ·A church member he met in [City 1, Australia] went back to China, for a visit, in November 2012.  While she was in China, they chatted online and she used code words.  He asked her why she used code words and she said that her online chatting might have been under surveillance by the “internet police”.  She also told him that when she went through customs in China they tried to dismantle her bible to see if there were any hidden documents inside the bible cover”. 

    ·The government of China will harm or mistreat him if he is found to be a member of the Church of God.

25. The applicant provided an additional statutory declaration, sworn on 3 May 2013, to the Department in support of his claims.  The claims and information set out in that statutory declaration are set out in the delegate’s decision record and are summarised as follows:

    ·The applicant was interested in Christianity when he lived in China but did not go to church very often.  Sometimes he went with friends but mainly for social rather than religious reasons.

    ·He was accompanied by his mother when he came to Australia, because of his young age.  His mother stayed with him in [City 2] for about two weeks before leaving him to head to [City 1] to work.

    ·He ceased his studies because of poor attendance and moved to [City 1] to reunite with his mother. 

    ·In about September 2008, he became angry at his mother for entering into a relationship with a man he despised.  He moved to another address and did not make contact with his mother for about two years.

    ·His mother returned to China in April 2011, and called him after she had returned.  She was diagnosed with [a medical condition] in May, and they spoke often after he learned this news.

    ·He contemplated returning to China, but he had no reason to do so and his mother told him she did not want him to.

    ·His mother died in July 2011.  When she passed away, he got on his knees and prayed for her.  A few days after his mother died, two people from the Church of God knocked on his door and talked to him about God.  He thought it was an answer to his prayers.

    ·He was baptised about 3 or 4 days after his home visit, on a Saturday, at a house in [named suburb].  He remembers there being lots of people in the house.

    ·After his baptism, he went to two church events each week:  a bible study on Tuesday nights and a whole day prayer meeting on Saturdays.

    ·In addition to the bible study and prayer meeting, he goes out door knocking, usually three or four times a week, with at least one other person from his church.  He hands out brochures and a questionnaire.

    ·He believes if he goes back to China he will be persecuted because of his religion.  He has read that this will happen in an internal church newsletter.  He has also been told this by one of his church members – [Friend A] – who returned to China when she completed her studies in Australia.  He is aware [Friend A] had some trouble at customs when she returned.  She had her bible searched to see if there was anything in it.  She is also afraid of the “internet police”.  When they contact each other, occasionally via the internet, they talk in code: for example, they say “I’m going to breathe for you” when they mean “I’m praying for you”.  [Friend A] is still practising in China and takes part in a Church in Xiamen.

    ·If he returns to China, he would continue to practice as a member of the Church of God, even if that meant there would be implications with the police. 

    ·When he was baptised in August 2011, he did not know he would be persecuted for his beliefs if he went back to China.  His beliefs are stronger now, and that is why he is applying for a protection visa.

    The delegate’s decision

26. In a decision record, the delegate sets out her findings and reasons for refusing to grant the applicant a protection visa.  Having considered the written statements submitted by the applicant and his responses at the Department interview, the delegate was not satisfied with the credibility of the applicant’s claims. The delegate noted the applicant’s delay in submitting his application; her findings that the applicant’s claims of active membership of the church were not credible; and that there was no country information to indicate that the Church of God and its members are persecuted in China. The delegate found after reviewing all evidence in totality, that the applicant did not have a religious profile that would attract the adverse interests of the Chinese authorities for a Convention related reason or any other reason. 

    Evidence presented at Tribunal hearing

    Hearing of 7 February 2017

27. At his hearing, the applicant confirmed his basic details, including his date of birth and his citizenship.  He told the Tribunal that his mother had passed away in 2011.  He confirmed that his father and older brother remain living in China and that he maintains contact with them.  He told the Tribunal that his parents divorced when he was [age] years old.  He said after his parents divorced he was cared for primarily by his mother, but occasionally spent time with his father.  He said he relied on his father for financial support.  He said his father owned a [business] when he was younger, but later became a [different profession]. He indicated that after completing his secondary schooling in China, he completed one and a half years of a [course] at a vocational school before coming to Australia. 

28. He told the Tribunal he had no other family in Australia.

29. He told the Tribunal that he was not currently working.  He said the last time he held a job was in November 2016.  He said that at that time he was working as [an Occupation 1].  He said he is currently living off his savings.

30. The applicant told the Tribunal that he first arrived in [City 2], Australia, with his mother (as his accompanying parent), in early 2008 as the holder of a student visa, which he had obtained with the assistance of an agent.  He said his mother travelled to [City 1] shortly after they arrived in Australia, to secure work, while he stayed in [City 2].  However, he said he followed his mother to [City 1] in about July or August 2008, and therefore did not complete much of the [course] he had enrolled in when he first arrived in Australia.  He said after he arrived in [City 1] he worked [in a specified industry] to support himself.

31. He indicated that after he arrived in [City 1], his relationship with his mother deteriorated and they spoke very little.  He said he is aware his mother [lived temporarily in one place] and relocated to [another town] after that.

32. The applicant told the Tribunal that his mother returned to China in 2011.

33. When asked why he did not return to China either after his student visa expired in 2010 and he had no legal basis to stay in Australia, or, when his mother returned to China in 2011, the applicant indicated to the Tribunal that he felt “a bit lost” and did not know how his life would be if he returned to his home country, because around the time his mother went back, he had an awkward relationship with her.  He said that when he learned his mother was ill with [a medical condition] he did want to go back to China, however, his mother encouraged him to stay in Australia. 

34. The applicant told the Tribunal that he fears returning to China because of his religious beliefs.  He said that he turned to religion in Australia after his mother died. He said that since he has become a believer he has learned from other believers who have returned to China that they have to pray privately because it is not officially allowed there.  He said he believes that people should have the freedom to choose their beliefs. 

35. When the Tribunal asked about his Christian beliefs, he said he had joined a Christian church – the World Society Church of God - in 2011.  He said received a knock on his door, a few days after his mother had died, from two members of that Church – [Friend B], who was a youth group leader in the church, and [Friend A], a church-goer.  He said they spoke to him for some time and he agreed to attend their church meeting the following week.  He said at the first meeting he sang, prayed and was baptised.  He said that in his church, it is written in the bible that you need to be baptised immediately after you come to join the church, in order to understand what is written in the bible.  He said that before you are baptised you have sins, but after you are baptised you have the opportunity to repent and right your sins.

1. The Tribunal asked the applicant about his church commitments.  He claimed that since 2011, subject to work, he has attended church services each Saturday, as well as a prayer meeting each Tuesday. He said he also goes out with other church members and “preaches”.  Specifically, he told the Tribunal that [Leader C] leads three services each Saturday, at [specified times], and he generally attends all three services.  He said about 30 to 40 people attend the services, which are held in English.

2. The Tribunal asked the applicant what he liked about this church, to which he responded that he liked that they have a Mother God.  He also said he liked that his church observes the bible and follows it strictly.  He went on to say he was very sorry for the years he was angry and did not speak to his mother, and he wished to join the church to right those wrongs.  He said that before he committed to this church he had visited other churches with his friends but did not get any feelings for those churches.  When asked about what other churches he had been to, the applicant said that when he first arrived in [City 2] he had accompanied his housemate to her church.  He could not recall the name of the church, but said it was close to where he lived. 

3. The Tribunal asked the applicant to tell it about the importance of being a follower of his Church and how he incorporates the beliefs and principles into his everyday life.  The applicant indicated that first, he needed to observe the bible strictly.  The applicant said that he studies the NIV Version of the Bible and that his bible is bilingual.  Second, he said his church does the prayer ceremony on Saturday instead of Sunday, unlike other Christian groups.  Third, he said that his church believes in Mother God, and that she is in the world in the form of a human being.  The applicant indicated to the Tribunal that his church holds a Passover festival, which is a transition from the old bible to the new bible, and without experiencing the passover one cannot be saved.  He said his church does not believe in idols or symbols held sacred by other churches, for example the cross.  When they pray males cannot wear hats and females wear veils to cover their heads.  He said his church does not celebrate Christmas or Easter, but it does celebrate the resurrection day. 

4. When asked if it was a requirement of his faith to talk to others about his religion, the applicant responded that it was not a requirement, but if you are sincere in your beliefs you want to preach.  He said that whenever he gets the opportunity to, he will preach to others by door knocking with other believers.   

5. The applicant told the Tribunal that his family members associate with the Tao faith and attend Tao ceremonies, but they are not solid believers. The applicant said that he has spoken to his brother several time over the telephone about his Christian beliefs.  He said his brother has no concerns about his beliefs, but told him he is a “little bit crazy”.

6. The applicant told the Tribunal that he did not hold any religious beliefs or practise any religion in China.  He said, sometimes just for fun he would visit Tao temples and shrines.  He said he had also been inside a Catholic church near his middle school, with class mates, one Christmas time.  The applicant indicated that he had never encountered any troubles in China because of any religious activities.

7. The Tribunal asked the applicant what he feared will happen to him if he returns to China. The applicant replied that he would wish to preach but he would be afraid to do this.  He said that the information he has from others is that if he is exposed as a believer, he would be arrested or detained, and the Church he attended would possibly be exposed as well.  

8. The applicant told the Tribunal that his [Friend A], who had introduced him to the Church, is also from the Fujian province in China.  He said he has heard most of the information about the treatment of Christians from her.   He said she has attended Church in China and was baptised there.  He indicated that when she returned to China after completing her studies in Australia her bible was closely inspected when she arrived at the airport.  He said she had managed to avoid the attention of the Chinese authorities because she keeps things secret. The Tribunal asked the applicant why he would be fearful of returning to China if his friend was a believer and has attended Church in China without encountering any problems. The applicant responded that he believes her stories that if you are exposed, there will be trouble, are real.  He told the Tribunal that other Chinese members of his church have told him the same things.

9. When asked what he would do if he was required to return to China, the applicant indicated that he is worried about returning there so does not think about it.  He indicated he doubts he will be able to survive there, because his living and employment skills would be useless in China.  He said because he has no contacts or any relationship with anyone in China, it would be difficult for him to return there. The applicant also claimed, for the first time, that he is most afraid of returning to his home country because he suffers asthma, like his father.  He told the Tribunal that he had received an asthma diagnosis about four years earlier.  He claimed he would not receive adequate medical care, and perhaps would even die, if he has an asthma attack in China.    

10. The Tribunal discussed the applicant’s ability to subsist if he was to return to China.  It suggested that he was young, educated, had work experience and had English skills, so he surely would survive if he had to return to China.  The Tribunal also suggested that he had family in China, whom he could turn to for support.  The applicant indicated he would work as [an Occupation 1] if he returned to China, but that it would be an unfamiliar place if he returned there.  He also said that he was not happy with his father.  He said if his father had helped him when he was younger, he would still be in China living a good life. 

11. The Tribunal suggested to the applicant that a large proportion of China would suffer asthma and that there are hospitals and medical services that would be available to him there in respect of this condition.  The applicant told the Tribunal that the care and medicine in Australia is more accessible and much better.  He said, as an example, that he would need someone to sign a form on his behalf before he could be admitted to hospital for treatment in China, whereas in Australia he would be treated immediately without the need for someone else to sign an admission form for him.  The Tribunal indicated that it was concerned about why the applicant had not raised this claim before the hearing, if it was such a big issue for him.  The applicant replied that the visa application process had taken a long time and had given him time to think about things more.  He also said that that he thought if he mentioned his asthma earlier, the Australian authorities would have regarded him as a burden. 

12. The applicant told the Tribunal that taking everything into account – not having work, his health and his religious beliefs – it would be difficult for him to return to live in China.  He went on to concede that each of these factors separately, would probably not be a “huge trouble”.

13. Having run out of time, at this point the hearing was adjourned.

    Hearing of 3 March 2017

14. The Tribunal asked the applicant to confirm the protection claims he had made at the first hearing.

15. At the outset of the second hearing, the applicant provided an Emergency Department Summary in respect of a hospital admission [in] May 2016 for his asthma.  The document notes between 14 -16 May 2016 he was treated with nebulisers; weaned off the nebulisers on to puffers; given a nicotine patch and encouraged to stop smoking and then discharged with a follow up appointment with the Respiratory team.  The document indicates that the applicant had a previous ICU admission for asthma in 2012.

16. The Tribunal sought further information from the applicant about his medical condition and the requirements of that condition. The applicant told the Tribunal he had been to hospital for his asthma on two occasions in the last four years.  He said he has three medications for his asthma: two inhalers, a green coloured one and a purple one, and presson tablets. He said he uses his purple inhaler on a daily basis, and the green inhaler and tablet are used to combat an asthma attack. 

17. The Tribunal indicated to the applicant that it had to consider whether he would suffer harm because of his asthma over and above general population of asthmatics in China.  By way of response, the applicant indicated that if he was to have an asthma attack in China like the one he had the first time in Australia, he “would die for sure”.  When the Tribunal raised with the applicant that there was no suggestion that he would be denied treatment or unable to access treatment in China, the applicant replied that he is worried about going back to China because of the adequacy of the medical treatment there. When the Tribunal asked the applicant whether his father had ever been admitted to hospital in China to be treated for asthma, the applicant said that he had a few times.

18. When asked what church the applicant would you attend if went back to China, the applicant stated that there were two churches he could go to, in Fujian and Xiamen.  He said he is aware of these churches because [Friend A] has been to them and he has heard her speak of them.  When asked to provide details of the churches, the applicant was only able to tell the Tribunal that “they are very inconspicuous” and operate out of peoples’ residences.  He said he thinks about 20 people would attend the meetings, because they would be confined by space. When asked what the churches were called, the applicant replied that they were named the same as the Church he currently attends in Australia – the World Mission Church of God. 

19. The Tribunal sought information from the applicant as to whether he could attend any of the registered churches in China.  He said that he was aware of there being legal churches in China, but that he could not practice his faith in these churches because they have the wrong ideology. 

20. The Tribunal discussed the applicant’s delay between joining the Church and discovering that Church of God members are persecuted in China and the making of the application for his protection visa. The Tribunal indicated that his delay in applying might lead it to think he didn’t have a genuine fear.   The applicant indicated to the Tribunal that he started fearing returning to China about a year after his arrival.  The Tribunal discussed with the applicant that he started attending church in 2011, so he could not have had fear of returning on the basis of his religion in 2009.  It discussed that he had applied for the protection visa in 2013, which was five years after arriving in Australia and two years after becoming involved with church.  The applicant clarified that he was confused, not fearful, of returning in 2009.  He said his mother did not want him to return to China and the fear inside him has slowly built.  He said his serious asthma attack sealed his fear of returning to China.  He said he reached a threshold of fear in his mind that forced him to apply for the visa when he did.  He said that his position now is more “passionate” for not returning to China than it was in 2013.

21. The Tribunal discussed with the applicant that, like the delegate, it had not been able to locate any information to indicate the World Mission Church of God has any profile in China.  The information before the Tribunal indicates that the church began in South Korea, and has spread to other countries, but, China is not mentioned whatsoever. The Tribunal put to the applicant that given it has been unable to find any information amongst the many independent reports setting out information about the situation in China for people seeking protection in other countries, this may suggest that in reality the applicant does not face adverse treatment by the Chinese authorities because of his membership of the Church of God. The applicant suggested to the Tribunal that it should google in the Chinese language to find information on the existence of the Church in China.

22. The Tribunal referred to country information indicating that there are millions of Christians in China – over 60 million and rising - particularly among believers in unregistered religious organisations, due in part to the lack of capacity in the registered churches.  Some sources suggest that individuals move freely between state registered and unregistered churches.  Information indicates that the risk of persecution for Christians expressing and living their faith in China is very low, indeed virtually negligible. 

23. Further, the Tribunal indicated that it is reported that despite the constitution guaranteeing freedom of religion, restrictions remain, but there are regional variations in severity.  In the Fujian province, the applicant’s home province, for example, the authorities are reportedly quite liberal in their attitudes to unregistered Christian groups, both registered and unregistered.  People practicing in small groups in private homes are generally left alone.  The Tribunal acknowledged the country information did indicate that while there have been some reported incidents of arrest/harassment of Christians in Fujian province, there have not been many reports of this nature in recent years, with the last known report being in 2010.  Additioanlly, dissident church leaders or prominent individuals who challenge public order appear most at risk, but the applicant does not have that profile. 

24. The applicant told the Tribunal that he would agree with the country information indicating that the risk of persecution to Christians in China is low.  He went on to say, however, that this is because information is tightly controlled in China. He said he did not find it strange that the Tribunal has not found information to support his claims.  He maintained there have been cases of believers being locked up because of their beliefs.  The applicant urged the Tribunal to let him stay in Australia, because he really does not want to go back to China.

25. The Tribunal asked the applicant to comment on the delegate’s concerns that he was not being truthful with his claims.  The applicant indicated he did not understand why the delegate had come to the decision she did.  He indicated that the delegate was unable to make a proper decision, because she was unable to find information about the Church of God. 

26. The Tribunal referred the applicant to statements made to the Department by World Mission Church of God leaders - [Leader D], and [Leader C].  The delegate’s decision, a copy of which was provided to the Tribunal by the applicant, records that both of these leaders did not confirm the applicant’s claims of belonging to their Church.  [Leader D], in particular, told the delegate that the applicant was not a member of the Church of God and that he had indicated to the applicant that he would report this fact to the Department.  The applicant indicated to the Tribunal that he did not want to talk about this because it was a poor reflection on himself and his religion.  He went on to say that he thinks the leaders may have been trying to protect the church.  He indicated that he continues to attend church activities and that he has not discussed with either [Leader D] or [Leader C] why they said what they did to the Department.

27. The Tribunal indicated to the applicant that in his case, the legislation – specifically, S91R(3) -  requires it to consider whether him aligning himself with a Christian church and attending religious activities in Australia has been for the sole purpose of strengthening his refugee claims.  The Tribunal indicated that if it decided that his conduct has been for the sole purpose of strengthening his claim for a protection visa, it was required to disregard his claim.  The applicant, by way of response, said that if he had done that he could have gone to any church.  He said that he joined the Church of God because of his mother’s life experience.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

30. The applicant travelled to Australia on a Chinese passport, and the delegate had no concerns with is claimed nationality. The Tribunal accepts that he is a national of the People’s Republic of China (PRC) and has assessed his claims against that country.

31. Before finalising this decision record, given the time that has passed, the Tribunal listened to the audio recording of the applicant’s hearing and based its decision on the consideration of that recording.

32. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

33. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196 197 and 203 204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.  Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status.

34. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

1. The Tribunal carefully considered all of the evidence available to it in this case, including the applicant’s documentary evidence submitted to the Department as well as his oral evidence at two hearings before the Tribunal.  While it accepts some of the applicant’s evidence, as discussed further below, it concludes that the applicant is not a reliable witness and that critical aspects of his evidence are exaggerated or fabricated for the purposes of his protection visa application.  In particular, it does not accept his claim to a member of the World Mission Society Church of God. The Tribunal has taken into consideration the rejection of the applicant’s core claims by leaders of the World Mission Church of God he purports to attend in [City 1].  The Tribunal notes the applicant’s reluctance to comment to it about this information, as well as his evidence that he is a member of the Church and that the reason the Church leaders would not corroborate his claims is because they did not want to cause trouble for the Church.   However, as noted during the hearing, the Tribunal has difficulty reconciling what the Church leaders have said with the applicant’s claims. The Tribunal finds that the fact that [Leader D] and [Leader C] provided information to the delegate that the applicant was not a member of their church significantly undermines his claims and his credibility.

2. The Tribunal has also taken into consideration the applicant’s delay in seeking protection.  Despite the applicant’s evidence that he became involved with the World Mission Church in August 2011, he did not lodge an application for a protection visa until February 2013.  The Tribunal also notes the applicant’s changing evidence as to when he first began to fear harm as well as his evidence that the fear inside him has slowly built and that his position now is more “passionate” for not returning to China than it was in 2013, but it does not find this explanation persuasive. The Tribunal considers it difficult to fathom that the applicant – who has lived in Australia since 2008 (unlawfully since March 2010); has worked since his arrival; and on his evidence has worshipped with other Chinese nationals since 2011 - would not have taken steps to discuss with any migration agent, or the Department, his claimed involvement in an illegal religion, in relation to which he could face harm if returned to China.   The Tribunal refers to the decision in Selvadurai v MIEA & Anor (1994) 34 ALD 346 in which Justice Heerey found that a delay in lodging a refuge application was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. In Andaraj Subramaniam v MIMA [1998] FCA 305 Justice Carr agreed with Heerey J in Selvadurai as a matter of principle that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least depth of an applicant’s fear of persecution.  His Honour went further and found that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant.  The Tribunal finds the applicant’s substantial delay in seeking protection raises doubts about the credibility of his claims and the genuineness of his fear.

3. For these reasons, the Tribunal finds the applicant to be an unreliable witness and the findings that follow are made in light of all the evidence and in light of the Tribunal’s assessment of the applicant’s unreliability as a witness.

   Assessment of refugee protection claims

4. The applicant’s protection claims have been set out in earlier paragraphs in this decision record.  In summary, it is submitted that the grounds for the applicant’s claimed persecution are his religious beliefs.  He has claimed to fear harm for reasons of his inability to subsist in his home country.  He has also claimed to fear harm for reasons of suffering asthma. The Tribunal considers each of these claims below.

   The applicant’s religion

5. The Tribunal has taken into account the applicant’s claim to have been interested in Christianity, but did not go to church very often, when he lived in China.  At his hearing, the applicant clarified that he did not hold any religious beliefs or practise any religion in China, nor had he encountered any trouble because of any religious activities.  It was his evidence that he would visit Tao temples and shrines for fun, and also that he had been inside a Catholic church near his school, with class mates, one Christmas time. On the evidence before it, the Tribunal does not accept that the applicant had any interest in Christianity in China.

6. The applicant has claimed that after his mother died in July 2011, which the Tribunal is prepared to accept, he became involved with a Christian church – the World Mission Church of God - in Australia and proselytised here.  However, after reviewing all of the evidence before it, the Tribunal has serious concerns about the applicant’s claimed adherence to the Christian religion and the credibility of his claims for protection.

7. After considering all the evidence in this case, and for the reasons discussed below, the Tribunal does not accept that the applicant faces a real chance of serious harm on return to China in the foreseeable future on the basis of his religious beliefs.

8. The assessment of claims based upon religion has been the subject of judicial and scholarly commentary and guidance, in Australia and other jurisdictions.  Acknowledging both the legitimacy – indeed, the necessity - and difficulty of assessments of the genuineness of such professed beliefs, Merkel J relevantly observed in Mashayekhi v MIMA [2000] FCA 321:

   14.  Furthermore the RRT, although acknowledging the applicant's language restrictions, his fear of the consequences of actively embracing Christianity and some knowledge of Christianity, nevertheless concluded that such factors did not explain the inadequacies of the applicant's knowledge of the Bible and the names of the Disciples.
   15.  While I accept that, in varying degrees, the matters relied upon by the RRT for not accepting the applicant's account of his conversion to Christianity can be logically probative of the genuineness of the alleged conversion, the weight to be given to such matters depends upon the extent to which the alleged conversion in Iran bore some similarity to the background knowledge the RRT was purporting to bring to bear on that issue. However, little was revealed by the RRT on those matters.
   16.  While the course pursued by the RRT may not have resulted in reviewable error under Pt 8 of the Act it is important to emphasise that, if the RRT is to fairly and justly discharge its important functions under the Act, it is critical that it:
   1.   be sensitive to the cultural, social and religious difference that exists in so many of the societies with which its cases are concerned;
   2.   does not arrive at or state its findings of fact on such issues with greater confidence than the circumstances of the particular case may warrant.
   17.  Notwithstanding the above matters, and the possibility that there may have been some illogicality or unreasonableness on the part of the RRT in the fact finding process pursued by it in relation to the applicant's credibility, that does not have the consequence that there has been reviewable error of law for the purposes of Pt 8 of the Act: see Minister for Immigration v Epeabaka (1998) 84 FCR 411 at 420-422.

9. In Wang v MIMA [2000] FCAFC 1599 (at [16]), Gray J commented:

   I have some doubt as to the correctness of the approach of the RRT to this finding of
   fact. The RRT receives many applications from persons who seek protection visas, claiming well-founded fear of being persecuted by reason of religion. It is inconceivable that every member of the RRT is properly equipped to assess each such applicant on the basis of the applicant’s knowledge of the faith that he or she professes. Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion. 

10. The Tribunal does not conclude from Gray J’s comments that the Tribunal is precluded from inquiring into the genuineness of the applicant’s alleged religious beliefs in any circumstances, indeed that very inquiry is central to a case such as this.  The Tribunal is entitled to question an applicant on his or her beliefs, and to make findings on the applicant’s knowledge, understanding and commitment to the religion.

11. The Tribunal notes that in WALT v MIMA [2007] FCAFC 2, the Tribunal had regard to the applicant’s lack of any real knowledge of the basic tenets of Christianity. In a joint judgment, Mansfield, Jacobsen and Siopis JJ accepted Gray J’s comment that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine: at [28]. However, their Honours went on to state (at [28]-[31]):

    Degrees of understanding and commitment of those practising any particular faith will vary.  To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
    But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person’s beliefs on matters which that particular religion teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.
    We agree with the learned primary judge, that the Tribunal did no more than that.  It did not set a level of knowledge of, and commitment to, Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity.  It merely explored the level of his knowledge and understanding, and his commitment.  Clearly, the appellant had virtually no knowledge or understanding of Christianity either at the time of his “conversion”, or at the time of the Tribunal’s hearing.  Nor had the appellant practised his claimed new religion in any way which he identified.  The way the Tribunal approached this issue does not reveal any lack of sensitivity to the possible cultural differences which may inform the practice of a particular religion in a particular country:  cf Mashayekhi v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 381 per Merkel J at 384-385, [11]-[15].
    It was also open to the Tribunal, given the significant consequences of his “conversion” which the appellant asserted, to explore what he had done or learned in the practise of his new religion after age 11.  It was his “conversion” which, he claimed, isolated him from his family and his village and made it unsafe to return to the country of his nationality.  The issue for the Tribunal was whether the appellant had a well-founded fear of persecution by reason of his religion if he were to return to Kenya.  His religious beliefs and practices up to the time of the Tribunal’s decision were relevant...

12. The Tribunal also notes the comments in SBCC v MIMA [2006] FCAFC 129 at [45], where Frennh, Lander and Besanko JJ held that:

    Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.

13. Having regard to all the evidence, and in accordance with the principles laid down in the judgements cited in the preceding paragraphs, and for the reasons that follow, the Tribunal is not satisfied that the applicant is in fact a genuine follower of the World Mission Church of God, but has rather advanced this claim for the purposes of securing a permanent visa to remain in Australia.

14. The Tribunal accepts that it is not the arbiter of religious doctrine as laid down in case law cited above.  It also acknowledges that it is a serious finding to decide that an individual does not hold the religious faith he claims to hold:  SZVTC v MIBP [2018] FCA 824. That said, the Tribunal asked the applicant a range of questions about his religious beliefs and practices in Australia. These were intended to give him the opportunity to demonstrate aspects of his knowledge of the Christian faith. Although the applicant was able, in general terms, to discuss the distinguishing features of the Mission World Church of God, as compared to other Christian churches, the significance of baptism and aspects of Church of God gatherings and services, the Tribunal found aspects of his evidence regarding his adherence to the World Mission Church of God to be unconvincing. The applicant was only able to articulate the beliefs and practices of World Mission Church of God believers in very general and limited detail. And, he gave very superficial evidence about how he incorporated Church of God beliefs in to his own everyday life. He mentioned Church members were required to observe the bible strictly; attend prayer ceremonies on a Saturday; believed in Mother God; and celebrated the resurrection day, but not Christmas or Easter. He said as a Church of God follower, he did not believe in idols or symbols of other churches and could not wear a hat when he prayed. The Tribunal was not persuaded by this evidence of the applicant. It was not of the detail one might expect of one who professes to have been a member of the Church since 2011, and who claims to have attended a church service and prayer meeting each week, as well as “preached” to others since that time. On the basis of these matters, the Tribunal finds that the applicant is not a genuine follower of the World Mission Church of God.  The Tribunal is in fact satisfied that the applicant has little knowledge and little genuine interest in the World Mission Church of God, apart from an interest in how it might secure a permanent visa for him to stay in Australia. 

15. Further doubt is added to the applicant’s claims by the leaders of the World Mission Church of God in [City 1] expressly rejecting the applicant as a member of their Church.  The Tribunal has considered that the applicant was known to the Church leaders and as such may have attended church meetings on occasion.  However, the Tribunal considers the information provided to the Department by these leaders to be significant and not to be indicative of the applicant being a genuine follower of the World Mission Church of God. 

16. The Tribunal also considers it significant that the applicant did not apply for a protection visa until February 2013, three years after the last visa granted to him expired and well after he says he learned that Church of God followers were persecuted in China.  The applicant’s evidence was that the fear inside him has slowly built, but as noted above, the Tribunal does not find this explanation persuasive. Given the other credibility concerns as discussed above, the Tribunal finds the delay in the application for a protection visa in this case leads the Tribunal not to accept his core claims as credible or that he has a genuine fear of persecution if he returns to China.

17. While the Tribunal is willing to accept that two Church of God members knocked on the applicant’s door to speak to him about God in about August 2011 and that he may have attended World Mission Church of God gatherings on occasion since that time, the Tribunal considers that the applicant has exaggerated his attendance and involvement and doubts his motivations for doing so.  The Tribunal accepts that in this capacity he has exhibited some knowledge of the tenets of the Christian faith.  However, having regard to all of the evidence, and its assessment of the applicant’s unreliability as a witness, the Tribunal is not persuaded that the applicant genuinely holds Christian beliefs or is, or ever was, a committed World Mission Church of God member or follower. Further, the Tribunal finds there is no credible evidence to support his claim that he is a genuine follower of the World Mission Church of God. The Tribunal does not accept the applicant’s claims that he got on his knees and prayed for his mother when she died, or turned to religion after her death. The Tribunal does not accept that the applicant was baptised at the World Mission Church of God three or four days after he was introduced to the religion. The Tribunal does not accept that before he committed to the World Mission Church of God, he visited other churches with his friends. The Tribunal does not accept that the applicant attends a church service and a prayer meeting at the Church of God each week. Nor does it accept that the applicant goes door knocking with others from the Church, to hand out brochures or preach, three or four times a week.

18. The Tribunal considered the effect of the application of s.91R(3) of the Act to the applicant’s conduct in Australia in respect of his occasional attendances at World Mission Church of God gatherings.  Section 91R(3) of the Act requires that in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention, the Tribunal must disregard any conduct engaged in by the person in Australia 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 within the meaning of the Refugees Convention as amended by the Refugees Protocol.  Having regard to the requirement in s.91R(3) of the Act, in view of the Tribunal’s findings that the applicant is an unreliable witness and that his motivation for attending church in Australia is in the Tribunal’s view not otherwise than for the purpose of his protection visa application, the Tribunal must disregard the applicant’s conduct in Australia in respect of his attendance at the World Mission Church of God.

19. Having disregarded the applicant’s conduct which he claims as evidence of his Christian beliefs in Australia, and given the Tribunal does not accept that the applicant is a genuine member or follower of the World Mission Church of God, the Tribunal rejects that he would practise as a Christian worshipper or proselytise if he returns to China, or that others will seek to “forcefully convert him from the Church of God to their religion”, as he claims.  As the Tribunal finds that the applicant is not a genuine member of the Church of God, it is satisfied that he would not be perceived or regarded as one if he returns to China.

20. The Tribunal considers that the applicant has fabricated these claims as a means to apply for protection in Australia. The Tribunal is not satisfied that the applicant will be targeted if he returns to China in the reasonably foreseeable future or that there is a real chance that he will face serious harm in China in the reasonably foreseeable future on the basis of religious beliefs, if he returns there.

    The applicant’s inability to subsist in China

21. The applicant claims that it would be difficult for him to subsist if he was forced to return to China.

22. The Tribunal has considered the circumstances of the applicant.  The Tribunal considered the applicant’s claim that he does not have a relationship with anyone, including his father, in China.  However, at his hearing the applicant indicated that he has maintained contact with his father and brother, since his arrival in Australia. Therefore, the Tribunal does not accept that the applicant would not have the support of a family network in China if he returned there.

1. In addition, the applicant, on his own evidence, has lived in Australia since 2008.  In that time he has managed to live by himself, learn a trade, and comfortably support himself.  This indicates to the Tribunal that he is a capable and resilient individual who would manage to subsist in his home country.   

2. Given the above, the Tribunal finds the chance that the applicant would be seriously harmed on return to China, on the basis of him having no family support or being away from China for so long or not being able to work or subsist, to be remote.  His fear of persecution on this basis is not well-founded.

   The applicant’s asthma

3. The Tribunal accepts on the material evidence before it that the applicant has medically-diagnosed asthma which requires careful ongoing management. 

4. The Tribunal accepts that he has required medical intervention in Australia on two occasions in the past, but having regard to the evidence bfore it, also observes that his asthma is generally managed through medication.  Further, on the basis of the applicant’s evidence that his father has asthma and has been treated in hospital in China previously, and because there is no information before the Tribunal to indicate that the applicant would be unable to access medical services in China, the Tribunal does not accept that the applicant would be denied adequate medical care for his asthma if he returns there.

5. The Tribunal finds there is no real chance the applicant will face serious harm in China in the reasonably foreseeable future due to his asthma, for any of the reasons advanced by him. It follows the Tribunal finds the relevant fears expressed by the applicant about his health are not well-founded.

   Cumulative assessment

6. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively.  The Tribunal finds that there is not a real chance that the applicant will face persecution if he were to return to China now or in the reasonably foreseeable future.  The Tribunal therefore finds that the applicant’s claims that he will be persecuted if he returns to China, now or in the reasonably foreseeable future, are not well-founded. 

   Real risk of significant harm

7. As the Tribunal finds the applicant does not have a well-founded fear of persecution for one or more of the Convention Grounds, it is considered whether, pursuant to s.36(2)(aa) of the Act, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). 

8. The term ‘significant harm’ is exhaustively defined in s.36(2A): s5(1) of the Act.  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

100.   Subsection 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are ‘substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant’s] removal, there is a real risk that [the applicant] will suffer significant harm if returned to the receiving country.’  In MIAC v SZQRB [2013] FCAFC 33 (20 March 2013), Lander and Gordon JJ, stated (in part): In our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … there is a real chance that SZQRB will suffer significant harm … were he to return to [the receiving country].[246]

101.   The Tribunal considered each integer of the applicant’s claims for protection and the evidence presented in support of those claims, in the context of the complementary protection provisions of the Act.  It considered the applicant’s claims that he faces harm from the Chinese authorities because of his religious beliefs as well as because he will be unable to subsist if he returns to China and on the basis of his asthma.  It considered these claims individually and cumulatively.  For the same reasons as set out above, the Tribunal rejects the applicant’s claims in the context of the complementary protection provisions of the Act.    

102.   Having regard to all of the evidence, the Tribunal is not satisfied that there is anything in the claims or evidence that the applicant has provided to satisfy it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that he will suffer ‘significant harm’.

CONCLUSIONS

103.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

104.   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).

105.   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

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

Nicola Findson
Member