1516499 (Refugee)

[2018] AATA 667

1516499 (Refugee) [2018] AATA 667 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516499

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:15 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2018 at 9:55am

CATCHWORDS
Refugee – Protection visa – China – Religion – Christian – Political opinion – Dissatisfied with the Chinese political system -Suffered past harm – Held a family church gathering – Caught by authorities – Detained and mistreated – Business was taken over ‘illegally’ by local authorities –– Credibility concerns

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was born on [date] in Nanjing City, Jiangsu Province in China. He is a citizen of the People’s Republic of China (China) and arrived in Australia on [a temporary] visa on [date] September 2014.

3. On [date] December 2014, the application applied for a protection visa. He was interviewed by the delegate on [date] November 2015 and the delegate refused to grant the applicant a protection visa on [date] November 2015.

4. The applicant applied to the Tribunal on 1 December 2015 for a review of that decision and appeared before the Tribunal on 30 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter.

   CONSIDERATION

5. The issue in this case is whether the applicant meets the refugee criterion and if not, whether the applicant meets the complementary protection criterion.

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.

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. 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’).

10. 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.

    Claims

11. The applicant’s claims were set out in the original application for protection. The applicant claimed that he was a Christian who has suffered past harm in China due to his religious belief.

12. At the Tribunal hearing, the applicant raised that his political opinion also makes him at risk of persecution should he be returned to China.

13. The issue for the Tribunal is the credibility of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Written claims submitted to the department

14. In his written claims, the applicant claimed that he was born into a Christian family and had been raised a Christian. In China, he had set up a [company] in 1988 which faced initial difficulties but with prayer those problems were resolved. He stated that the following occurred in China:

    ·On [date] June 2012, he and twelve other followers held a family church gathering at a house. Five police officers came and told them that what they were doing was illegal. The police took everyone away to the police station and the applicant was beaten and tortured. He was detained for one week and released after paying a fine of RMB [amount]. Subsequent to this, the police often came to his house and his company to conduct checks on him. With police coming to his company, he lost his customers

    ·On [date] November 2013, he and other follower held a family church gathering at a different house. Police came and took him to a [a place] where he was beaten and abused. He was detained for one month and released after paying a fine of RMB [amount]. He was also forced to learn during the day, was interrogated at night, often not allowed to eat and was beaten and abused. He was also forced to sign a ‘guarantee’ renouncing his past practice. Subsequent to this, the police often came to his home and company to conduct checks on him. He was warned that if he was found gathering again, he would be punished.

15. As a result of this, he decided to go abroad. He fears going back to China because he cannot live safely there.

16. Apart from stating that the police came to his company to conduct checks on him which resulted in losing customers, (and this appeared to be linked to his claim for persecution on the basis of his Christianity), the applicant did not disclose that he had experience difficulty with the authorities in regards to running his business in his written claim. The Tribunal notes that he did not discuss his claims for persecution on political grounds, and the factual basis for this claim appears to have occurred only after the applicant had left China.

    Interview with the delegate

17. In his interview with the delegate, the applicant stated that he had not grown up in a Christian household but started to explore religion when he faced difficulties with his [company] which he stated in 1988. His parents were not Christian. He looked into Buddhism and Christianity. He stated that he was now a Christian and has a deep understanding of religion.

18. In terms of the past instances of harm, the applicant stated that the gathering in 2012 happened in October 2012 and he was pushed by the police. He went to the hospital to get a massage the next day. He told the delegate that he was not detained for seven days and was not fined RMB [amount].

19. He further told the delegate that the incident in 2013 saw him detained and released the following day. He was not held at a [a place] and not fined [amount] RMD. He was not harmed by the police on that occasion.

20. When asked by the delegate about the inconsistencies between his written claims and the evidence he was giving to the delegate, he said that it was probably because when he told “them” (the person who helped him complete the form) he said it very fast and they must have misunderstood what he was saying.

21. The applicant also spoke at length about his business dealings in China. He had four companies in China. One failed because of the ‘corrupt government’, then three or four years ago another one of his companies was closed because, according to him, state-owned companies could not stand private companies and there were corrupt officials and he suffered a big loss. This year, another company also had a similar experience. The applicant now had two companies left, but the government had taken over one of those companies. The company was taken over by the [state] department. He had a fifth company in Shenzhen which also failed. The delegate had information about another company in Shenzhen which was also linked to the applicant and that this company was involved in a contractual dispute which was accepted by the applicant. A court decision had been made against the applicant and he had been ordered to pay RMB [amount] on [date] September 2014 to the plaintiff in that case. The applicant stated that the manager of his company had gotten a bribe and had sold two of [company assets] despite the applicant instructing him not to do so. The buyer had difficulty to registering the [assets]. The buyer sued the company. The applicant tried to report what happened to police but the police did not accept what the applicant said.

22. He said that he had paid that fine and that he had had more court issues.

23. When asked about whether he had been previously harmed in China, he stated that he participated in some religious activities and in Buddhism he did not meet a good master so he some contacts with Christians. When he was at a Christian’s house someone was detained. He said that the government does not trust foreign religions. He stated that he became interested in religion as a result of his problems with the government and his companies.

24. When asked what would happen to him if he was to return to China, the applicant told the delegate that that the officials would try and force him out of the market because of his conflict with the officials.

    Tribunal hearing

25. When the applicant attended the Tribunal hearing, he was asked if there was anything that would have a negative impact on his ability to give evidence to the Tribunal. He stated that he had mental health problems and that he had [another health condition]. The Tribunal asked about the nature of his mental health condition and the applicant said that he had not received a diagnosis and was not currently being treated. He stated that he was depressed because of his circumstances. He said that he had [another health condition] for the last two years.

26. The Tribunal asked the applicant if he wanted to adjourn the hearing as the Tribunal had concerns dealing with his case if he was unwell. The applicant stated that he wished to proceed with the hearing because he had been this way for a long time.

27. The applicant then told the Tribunal that he had had a glass of white wine, a glass of red wine and a glass of beer before the hearing. The hearing commenced at 8.45am and he had his last drink at 7.30am. The Tribunal expressed concern about proceeding with a hearing in these circumstances; however the applicant stated that he wished the hearing to proceed. He told the Tribunal that he drank because he was unhappy and that this was normal for him. He drank alcohol all the time and conveyed to the Tribunal that he was an alcoholic. He stated that he had been waiting a long time for the hearing and wanted for it to proceed.

28. Notwithstanding that the applicant wanted to proceed with the hearing, the Tribunal needed to reach its own conclusion whether it was appropriate to proceed. The Tribunal observed that the applicant did not appear to be under the influence of alcohol and appeared to be able to give cogent evidence. Further, if the applicant is a daily drinker then the Tribunal would find itself in the same position whenever the hearing was held. In addition, if the Tribunal told the applicant it would only hold a hearing if he had not consumed alcohol; the Tribunal would find itself taking evidence that would be impacted by someone who was suffering from alcohol withdrawal. The hearing lasted for three hours and the Tribunal’s observations of the applicant did not raise any concerns that the applicant was not in a position to give evidence and that the hearing needed to be adjourned.

    Analysis, Findings and Reasons

    Christianity

29. The applicant claimed in his written application that that he had suffered persecution on the basis of his Christianity. However, the Tribunal noted that there was an inconsistency between his written and the evidence to the delegate regarding how he became a Christian. In his written application, the applicant stated that he had grown up in a Christian household, but with the delegate and Tribunal he stated that he came to Christianity later in life. When asked to explain this conflict, the applicant put this inconsistency down to a ‘translation problem.’

30. Regarding specific instances of interactions with the authorities in the context of his attendance at house churches, the applicant told the Tribunal that that he had not been detained in 2012 for seven days as outlined in his written application, but that he had been detained for two hours. This was inconsistent with what he told the delegate, namely that he had not been detained at all and was merely pushed by the police at the gathering he attended. He told the Tribunal he was not fined as claimed in the written application.

31. The applicant told the Tribunal that applicant was not detained in 2013 and sent to a [a place] following attendance at the family gathering. His evidence to the Tribunal was the police attended on his house (where he had gone to subsequent to the gathering) and once the police realised that the applicant’s girlfriend worked in[a certain workplace], the police left. He told the Tribunal that he was not fined as claimed in the written application. The applicant was asked whether anything else happened with the police and he replied that there was not. This is in contrast to his written application where he stated that he had been beaten, not allowed to eat and was forced to sign a guarantee to not practise his religion.

32. When asked by the Tribunal about these inconsistencies, the applicant stated that it may have been that the person who completed the claims on his behalf was trying to be helpful because the applicant’s claims were not strong enough to be grounds for a claim.

33. The Tribunal noted that the applicant had arrived in Australia in September 2014 but had delayed lodging his application for protection until December 2014. When asked the reason for the delay, the applicant stated that the delay was due to him looking at other countries to go to and he was hesitating about claiming protection.

34. The Tribunal was concerned by the applicant’s evidence regarding his Christianity. The Tribunal does not accept the applicant’s explanation for the inconsistencies between his written application, his evidence to the delegate and his evidence to the Tribunal was due to ‘translation problems’ or to the person who helped him complete the forms putting in information to assist with the claims. The applicant had signed the forms stating that the contents of his application were true, and there were also inconsistencies between what he told the delegate and what he told the Tribunal, namely the period of detentions in 2012 and 2013.

35. It is reasonable to expect that the applicant would be consistent between his written application and his oral evidence regarding the period of detention and any abuse suffered at the hands of the authorities. The contrast between his written application and his oral evidence was stark. Further, the fact that the applicant delayed his application for a protection visa for 2 months raises doubt in the Tribunal’s mind, when considered in the context of his inconsistent evidence about his previous experience of harm in China and how he came to become a Christian, suggests to the Tribunal that the applicant has a flexible approach to the truth and is willing to say whatever he thinks will help him achieve a positive migration outcome. The applicant’s evidence that he delayed his application for a protection visa because he was hesitant to file it and was ‘looking into other countries’ undermines any claim that he was genuinely fearful of returning to China because of his religious beliefs. It is unreasonable to think that the applicant, who has fled China because of the commitment to his religious beliefs and has experienced past harm there, would come to Australia (a country to which he had never previously travelled and had no ties through business or family), would not lodge his application immediately but instead reflect on his circumstances and explore whether any other countries would be more suitable to him.

36. The Tribunal does not accept that the applicant is a Christian, that he has attended any Christian gatherings in China, that he has ever been detained or assaulted by the authorities in China, that he has ever had to pay a fine to Chinese authorities because of his involvement in house church activities, or that the authorities have ever attended any of his places of business due to their concern about his religious activities in China.

    Political Opinion

37. As noted previously, at the delegate interview on [date] November 2015 the applicant stated that he had trouble with the Chinese authorities regarding his business activities. This was the first time that these claims were raised with the delegate (apart from the applicant stating in his written application that police came to his company to check on him due to a suspicion that he may be holding religious gatherings at his work). At the time of the delegate interview, the applicant stated that he owned four [companies] and that officials were trying to force him out of the [market].

38. At the Tribunal hearing, the applicant was at pains to demonstrate to the Tribunal that he had been wrongly treated by the Chinese authorities in his business activities. He told the Tribunal that in 2016, his [businesses] were taken over ‘illegally’ by the local authorities and that the local authorities gave his business to other companies to operate. He said that his house was auctioned off by the authorities and that he now had no businesses in China.

39. As a result of his business experiences in China, he said that he became very hateful of the political system in China and had sent emails through his company work email and his WeChat messaging account suggesting that China should be more like Taiwan and China should allow multiple political parties and an independent judiciary. The applicant stated that these emails and messages could be considered a crime of wanting to overthrow the government in China. He said that these messages had been viewed by an employee who the applicant subsequently fired because of embezzlement of company funds. The applicant stated that he was fearful that the fired employee would have reported those messages to the authorities back in China in retaliation for being fired. He also said that his assistant in China had been taken in for questioning in either 2015 or 2016 as the authorities wanted to know where the applicant was. When pressed by the Tribunal as to why the authorities would be looking for him, the applicant stated that it was because the authorities suspected him of taking money out of the country.

1. It was clear from the way the applicant presented his evidence to the Tribunal that he was very frustrated by the fact that he was previously a successful businessman in China and now no longer has his businesses. He spoke to the Tribunal at length of wishing to affect change in China and that he wanted to participate in a revolution to overthrow the leadership. He told the Tribunal that he was depressed, turned to alcohol and gambling in Australia as a result of losing his businesses. He said that Australia was generous to immigrants from the Middle East but not so to Chinese immigrants. He told the Tribunal that he was a good person, who gave regularly to the homeless, was an environmentalist, was setting up an environmental [company] in Australia, and did not take advantage of Medicare or other welfare services in Australia. He was at pains to demonstrate to the Tribunal that he had a lot to offer Australia if he was allowed to remain here.

2. The Tribunal is satisfied that the applicant had previous businesses in China and that he has encountered problems with local officials in regard to his businesses and the Tribunal is satisfied that the applicant has expressed dissatisfaction to colleagues and former colleagues about the Chinese political system. However, the Tribunal is not satisfied that the authorities in China are aware any of these communications. The applicant’s evidence to the Tribunal was that the authorities had asked his assistant the location of the applicant and this was in connection with an allegation that the applicant had ‘taken money out of the country’. There is no evidence before the Tribunal that the applicant is being sought for questioning because of his political opinion or his expression of dissatisfaction with the Chinese political system.

   Refugee Criteria

3. Based on all the evidence before the Tribunal and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance that the applicant will face harm for the reasons of his religion or political opinion if he was to return to China now or in the foreseeable future.

4. As discussed above, the Tribunal does not accept that the applicant is a Christian, or has attended any gatherings in China, or participated in any Church activity either in China. While the Tribunal accepts that the applicant has experienced some difficulties with his business dealings in China and that he has voiced his dissatisfaction about the political system with his assistant and former employee, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any convention related reason.

   Complimentary Protection Criteria

5. Tribunal has considered whether on the evidence before the Tribunal there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence if he were to return to China.

6. The Tribunal does not accept that the applicant is a Christian, or has attended any church gatherings in China, or participated in any Church activity either in China. The Tribunal accepts that the applicant has experienced difficulties with his business dealings in China and that he has voiced his dissatisfaction the political system with his assistant and former employee, but the Tribunal does not accept that the applicant would face the death penalty, arbitrary deprivation of life or torture if he were to return to China.

7. Having considered the applicant’s circumstances on a cumulative basis and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to China there is a real risk that he will face significant harm.

   Conclusion

8. For the reasons given above, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations. Therefore, the applicant does not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. As he does not satisfy the criteria for a protection visa, he cannot be granted a visa.

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Nathan Goetz
   Member