1601149 (Refugee)

1601149 (Refugee) [2018] AATA 3958 (25 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601149
COUNTRY OF REFERENCE:                  China
MEMBER:David McCulloch
DATE:25 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 July 2018 at 8:53am

CATCHWORDS
REFUGEE – Protection visa – China – Religion – Christian – Fear of persecution – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 17 December 2015.
The applicant appeared before the Tribunal on 12 June 2018. The Tribunal was assisted by an interpreter in the Mandarin language.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in s.5J(2)–(6) and s.5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in s.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to DFAT Country Report – China, 21 December 2017 and DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, copies of which were provided to the applicant in hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on his accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The decision of the delegate indicates the following in relation to the applicant’s migration history. The applicant arrived in Australia on 22 April 2008 on a [visa]. The application for the Protection visa was lodged on 17 February 2015.
The application forms for the Protection visa indicate the following. The applicant was born on [date] in Fuqing, Fujian, China. The applicant provides no response in the section of the form asking for his religion. The applicant has never been married. The applicant lists both parents and a sister living in Fuqing, Fujian. The applicant lists one address from birth up until April 2008 in [village], Fuqing City. The applicant completed middle school in [year]. From [dates] the applicant attended [a school] studying [subject]. The applicant indicates that he has never worked, indicating he has been supported by family and friends.
The applicant provided a written statement as part of his application which provides as follows (not corrected for spelling or grammar):
My name is [name]. I was born on [date] in a Christian family in [Town] Fuqing City Fujian Province China. My parents, my sister and I all believed in God. When I was [age] old, I was baptised with three other Brothers. I live in the kingdom of Jesus.
In China, we don’t have religious freedom. The government and the police won’t allow the existence of underground house church and gatherings. People can only go to the churches established by government. A lot of Christians were arrested, detained or put in labour camp and prison because they refused to attend Mesas and other church activities organised by official churches. It was horrible. Even today, some Christians and priests are still in custody due to their beliefs. In China, it is very common to hear that some Christian family are breaking down due to the persecution. There is no religious freedom and no legal procedure in China.
While in China, I didn’t go to underground house church very often with my parents. They had to do it in secret, and were too afraid to have public gathering. Honestly, the gathering has casted shadow in my heart. Sometime, I did go to church but I was very scared for every time.
My parents had to go to gathering very often. But in order to avoid the persecution by the local government, they had to be very cautious and hide themselves. My father was arrested once in August 2005. My mother went to pay the fine of 5000 Yuan. He was detained for one day and released. However, our belief in God has never been undermined. We continued to attend gatherings. In December 2006, I was arrested by the police during the gathering of [a group]. The police forced me to write a guarantee letter promising not to attend gathering again. I disagreed. They beat me up. Later on, my parents came to save me and other kids. For each of us, they paid 5000 Yuan to bail us out. My parents were afraid that I would be arrested during the gatherings and came up with the idea of going abroad.
The friends in our village said that Australia is a free country. So my parents wanted to send me to [Australia]. Thank God, I came to Australia on a valid [visa] on 22/04/2008. My purpose of coming to Australia is to get away from fear and have religious freedom. I knew that my parents were working very hard to make money to support me. They placed great expectation on me. I studied very hard. Thank God, I found a casual job in a restaurant in the hope to reduce my parents’ pressure.
In weekend, I went to Chinese church with classmates to worship Jesus. Australia is a country of religious freedom. I felt enormous love in Australia. In church, I learned about tolerance and the great love given by Jesus. I found home in Church. I hope one day in future Chinese government will change the attitude towards religious belief and then all Chinese will enjoy religious freedom. I haven’t forgotten to spread the gospel to others in my study and life. I wished to let more people come to church and recognise God.
In the second year after I came to Australia, in September 2009, as I needed to pay [bill], I called my home in China. But over the phone I heard that my sister was crying. She told me about the misfortune. She said that my father was ill on bed and my mother was in detention house. I asked her what happened. She said that my parents were arrested by the police in a gathering. My father was beat up in the police station. My father was sent to hospital. My uncle collected money to pay the bail [before] my father was released. As there was no more money to pay the bail for my mother, she was still in detention. After all of this had happened, my family didn’t have any more money to pay [bill]. My first reaction was to go back to China to see my parents, because I was so worried about their safety. But my sister told me that if I went back to China I would probably be arrested. She asked me not to go back to China in any case. Knowing this, I had no other options. Firstly, I was worried about my parents and sister in China. And secondly, I was worried about how I should live my life in future. All I could do was to pray to God. Every time I went to Church, I pray for my parents and other Brother and Sisters who were persecuted.
After my parents were released, they asked me not to go back to China in any case. They asked me to rely on God. Now, although my visa expired, I was afraid of going back to China due to the persecution.
I used to hear that [certain visa holders] aren’t allowed to apply for refugees. But only recently, I heard that [they] can also apply. I hope Australian government could help me. I fear to go back to China. I fear that I would be arrested during the gathering in China. I wish to stay here and worship our God freely and live a peaceful life.
I was still young. If I can stay legally here, I would study and work hard. In the meantime, I could go to church freely, thanking and praising God. I therefore hope that the Australian government could consider my situation, and grant me protection visa application.
May all the glory and the honor return to our Father in heaven, Amen!
In the Tribunal hearing, the applicant indicated that he had more documents to provide the Tribunal. When asked what these documents were, and why they had not been provided to date, the applicant indicated that they related to a health issue suffered by his mother, being a [illness]. The applicant indicated that this was caused by worry concerning church matters. The applicant indicated that this material had not been provided previously as he is not in contact with his parents very much. The Tribunal indicated that it would accept that his mother had a [illness]. It gave the applicant 10 days to provide relevant documents, but indicated that documents would only be probative if relating to the applicant’s claims of potential harm due to religious matters.
In response, the applicant provided documents which he said related to his mother’s medical conditions and her church attendance. However, these documents were not translated. The applicant did provide a translated copy dated [December] 1996 of his Baptism Certificate. The Tribunal wrote the applicant indicating that the untranslated documents would need to be translated and provided additional time for this to occur. Translations were not provided within the time frame requested or prior to the finalisation of this decision.
Independent information
DFAT information
DFAT Country Report – China, 21 December 2017 provides variously as follows:
China is a religiously diverse country with a rich and complex society of faiths, belief systems and organised religious groups. Confucianism, Taoism and Buddhism constitute the ‘three teachings’, a philosophical framework which historically has had a significant role in shaping Chinese culture, including traditional folk religions. Christianity has been present in China since the seventh century but increased when Catholics became active in the late thirteenth century and through Protestant Christian missionaries in the nineteenth century. The establishment of the PRC in 1949 under the control of the atheist CCP resulted in the expulsion of Christian missionaries and the establishment of ‘Patriotic Associations’: government-affiliated organisations which seek to regulate and monitor the activities of registered religious organisations on behalf of the CCP.
It is difficult to provide exact figures on the number of religious believers in China. Chinese government statistics record approximately 100 million religious believers in total, including over 23 million Protestants, six million Catholics, and over 22 million Muslims. Approximately 5,500 religious groups, nearly one hundred religion-affiliated academic institutions and as many as 140,000 registered places of religious activity are officially recognised. The Chinese government recognises 360,000 registered clergy.
In practice, the number of religious believers is likely to be much higher and rising, particularly in unregistered Protestant Christian organisations, whose numbers approximate 70 to 100 million. China is home to an estimated 12 million Catholics, of whom approximately seven million belong to ‘underground’ churches not affiliated with the government-sanctioned Chinese Catholic Patriotic Association (CCPA). Around 50,000 new Catholics are baptised in state-recognised churches every year.
Several hundred million people observe to some degree aspects of Buddhism, Daoism and ‘folk religion’. Despite the atheist nature of the ruling CCP, as many as 25 per cent of Party officials are estimated to engage in some type of religious activity (mostly associated with Buddhism or folk religion).
Government Framework regarding religion
Article 36 of the PRC Constitution states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. Discrimination on the basis of religion is prohibited by law.
The conditions governing the establishment of religious bodies and religious sites, the publication of religious material, and the conduct of religious education and personnel are outlined in the Regulations on Religious Affairs (RRA) which came into effect in 2005. At the national level, the CCP’s United Front Work Department, State Administration for Religious Affairs (SARA), and the Ministry of Civil Affairs provide policy guidance and supervision on the implementation of the regulations. Local authorities, including provincial religious affairs bureaux, have significant discretion in implementing the regulations.
Chinese law recognises five religions (Buddhism, Taoism, Islam, Catholicism and Protestantism), members of which must register with the government’s Patriotic Associations mentioned above. These organisations are overseen by SARA and must be independent of foreign associations (notably the Vatican). Protestants must be non-denominational. Registered religious organisations may own property, publish literature, train and approve clergy, collect donations and conduct charitable activities. Government subsidies are available for the construction of state-sanctioned places of worship and religious schools. Unregistered religious organisations are illegal and vulnerable to punitive official action.
Registered religious adherents may proselytise in registered places of worship and in private settings but not in public. Foreigners may not proselytise. Registered religious organisations may not distribute unapproved literature nor associate with unregistered religious groups. Revised regulations adopted in September 2017 (see below) prohibit religious groups in China from accepting any foreign donations, which were previously permitted. Parallel provisions in a 2016 law on foreign NGOs prohibit them from donating funds to Chinese religious organisations, or raising funds on their behalf.
In April 2017, President Xi Jinping called on CCP officials working in religious administration to reassert the Party’s ‘guiding’ role in religious affairs. Xi’s speech emphasised the need to ‘sinicise’ religion, to ensure religious rights did not impinge on CCP authority, and to enforce the prohibition on Party members to belong to any religion. In September 2017, the (government) State Council approved revisions to the 2005 Regulations on Religious Affairs, which devolve substantial powers and responsibility to local authorities to prevent illegal religious behaviour, including undue influence from foreign organisations. The new regulations, which come into force in February 2018, also impose large fines for organising illegal religious events or fundraising. They restrict religious education in schools, detailing procedures for approval and monitoring of religious training institutions. The regulations emphasise the need to prevent ‘extremism’, indicating they may target Uighur Muslims and Tibetan Buddhists; the devolution of enforcement to local government and Party authorities, however, means that unregistered Christian churches are also likely to be affected.
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention.[1]
[…]
[1] DFAT Country Report – China, 21 December 2017, paras 3.15–3.24.
Christians
In addition to the state-sanctioned Catholic and (non-denominational) Protestant churches in China, SARA permits friends and family to hold small, informal prayer meetings without official registration. This, combined with the controlled nature of religious worship amongst registered Christian institutions, has led to the proliferation of sizeable unregistered Christian communities in both rural and urban China. Known as ‘house’ or ‘family’ churches (for Protestant organisations), and ‘underground’ churches (for Catholic organisations) these bodies are private religious forums that adherents create in their own homes or other places of worship. ‘House’ or ‘underground’ churches vary in size from around 30 to several thousand. Some churches deliberately restrict their numbers to avoid attracting adverse official attention. Government officials are more likely to scrutinize churches with foreign affiliations, or those that develop large or influential local networks, and house churches are under pressure to ‘sinicise’ their religious teaching.
Leaders of both registered and unregistered churches are subject to greater scrutiny than ordinary worshippers. Leaders of registered churches must obtain permission to travel abroad. Church leaders (registered or unregistered) who participate in protest activity on behalf of their congregations or elsewhere are at high risk of official sanction, but this is likely to relate more to their activism than to their religious affiliation or practice (see Political Opinion (actual or imputed) and Protesters/petitioners).
Members of unregistered churches who participate in human rights activism are at high risk of official discrimination and violence, as are their families (see Political Opinion (actual or imputed)). DFAT assesses that the adverse attention relates to their activism and association with unregistered (and illegal) organisations, rather than specifically to their Christian faith. Heightened government sensitivity over foreign influence creates difficulties for prominent members of unregistered churches seeking to travel abroad, particularly for religious events, and for foreign church organisations to work in China. NGOs report increasing difficulties for mainland Christians seeking to travel to Hong Kong or Macau for religious activities, and for Christian NGOs or activists from Hong Kong and Macau to travel to the mainland.
Protestants
The Three-Self Patriotic Movement (TSPM), established in 1949, oversees China’s ‘post-denominational’ (i.e. non-denominational) Protestant church and its estimated 23 million members. The ‘Three-Self’ is a Chinese abbreviation for the church’s three principles of self-administration, self-financing and self-evangelisation. The Chinese Christian Council (CCC) and the TSPM supervise approximately 60,000 registered Protestant churches and several hundred thousand affiliated meeting points. Approximately 200 pastors graduate every year from China’s single seminary and 20 CCC-run Bible schools. Qualifications from foreign seminaries are not recognised in China.
Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 60 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities. DFAT considers credible reports of authorities pressuring house churches by cutting off electricity or forcing landlords to evict members. Some members of house churches have been able to use registered church facilities for weddings, or to purchase bibles. Others have reported difficulties in hiring even commercial facilities such as hotels or restaurants because of their association with illegal churches. Christian organisations report that house church members have been arrested in 2017 for refusing to register with the TSPM, and of Christian schools being closed for ‘brainwashing’ children.
The Zhejiang provincial government’s 2013 urban renewal campaign led to the demolition of several hundred unregistered churches. The US Commission on International Religious Freedom reports over 1,500 church demolitions or removals of crosses since 2014. The government has punished church leaders who oppose the campaign with heavy sentences (up to 14 years) on public disorder charges, as well as apparently unrelated charges such as embezzlement. Authorities have also targeted lawyers defending them (see Human Rights Defenders (including Lawyers)).[2]
[2] DFAT Country Report – China, 21 December 2017, paras 3.37–3.42.

DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016 provides at follow:
Article 36 of the Constitution of the People’s Republic of China states that citizens enjoy freedom of religious belief, and that no state organ, public organisation or individual may compel citizens to believe in, or not believe in, any religion. However, the establishment of government-affiliated organisations to regulate and monitor the five officially recognised religions (Buddhism, Taoism, Islam, Catholicism and Protestantism) has, in theory (and, in some circumstances, practice), restricted religious freedom in China.
Generally speaking, individuals in Fujian can practice religion within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese Communist Party. In practice, the Chinese Communist Party obstructs religious practice at an organisational level, and is largely indifferent to religious practice at the individual level, with the exception of Party members, who are not permitted to follow any officially recognised or other religion. Religious adherents can be subject to a range of restrictions that are inconsistent or lack transparency. An individual’s ability to practice religion can be influenced by whether the individual exercises their faith in registered or unregistered institutions, whether they practice openly or privately, and whether or not an individual’s religious expression is perceived by the Chinese Communist Party to be closely tied to other ethnic, political and security issues.[3]
…
Unregistered churches (otherwise referred to as underground or house churches) are predominantly independent Protestant and Catholic congregations which refuse to acknowledge or associate with the officially sanctioned TSPM and CPA. By definition, unregistered churches are clearly subject to less control by the state than TSPM- and CPA-linked churches but also operate at greater risk given their unregistered status. Some in-country contacts questioned the validity of the ‘registered’ and ‘unregistered’ dichotomy, pointing out that members of a congregation will often move between the two.
Asia Harvest estimates that in 2011 there were 1.57 million worshippers of Protestant-linked unregistered churches and one million worshippers of Catholic-linked unregistered churches in Fujian. Accurate data on the number of unregistered churches in Fujian is unavailable, however in-country contacts report that they are able to be identified and accessed, particularly by Protestants.
Given that legislative protections for freedom of religious belief extend only to government-affiliated organisations (such as the TSPM and the CPA), the operations of unregistered churches depend on the attitude of local authorities. Their treatment varies greatly across China, and within Fujian. Generally speaking, in-country contacts suggest that local authorities in Fujian tolerate the operations of unregistered churches who operate discreetly, including by limiting the number of worshippers and meeting in inconspicuous locations. DFAT understands that congregations of up to 50 people can meet weekly in private houses without being closed down / repressed by local authorities.
Broadly speaking, DFAT understands that should an unregistered church or an individual perceived to be associated with an unregistered church engage in active and public proselytising, or are perceived to openly criticise the Chinese Community Party or the framework that regulates religious practice, the church or individual would likely be exposed to harassment, raids and destruction of property, pressure to join or report to TSPM- and CPA-linked churches and occasional violence and criminal sanction. In practice, this is more likely to affect leaders of unregistered churches, rather than individual worshippers. Leaders who amass a large (undefined) and unregulated congregation or personal following can also attract negative attention from the authorities.
Representative examples of the treatment of unregistered churches in Fujian are difficult to obtain. China Aid documented the destruction of an unregistered church (the Yulin Christian Church) in Fujian in January 2016 (although the events leading up to this incident are unknown). DFAT is unable to comment on the frequency of this occurring in Fujian, but open-source reporting and credible in-country contacts suggest that it has not been a common occurrence.
Charismatic leaders perceived to be associated with an unregistered church that come to the overt attention of local authorities are sometimes accused of committing offences unrelated to religious practice, such as fraud or corruption.[4]
[3] DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, paras 3.4–3.5.
[4] DFAT Thematic Report Fujian Province, People’s Republic of China, 16 December 2016, paras 3.11–3.15.
In a 2016 report, Freedom House categorises provinces in China in terms of the levels of religious persecution within those provinces. Fujian Province is listed as ‘low’.[5]
[5] Freedom House, the Battle for China’s Spirit, 2016, p.25.
Interview, hearing, credibility, findings and assessment
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: MIEA v Guo (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 577 [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of China, and accordingly his claims will be assessed against China.
The Tribunal has the following credibility issues with the applicant’s claims.
Firstly, as put to the applicant in the Tribunal hearing, pursuant to the procedural requirements of s.424AA of the Act, there are a number of significant contradictions between the applicant’s claims in the interview with the delegate and what he indicated in the hearing, and in his written claims.
In the interview with the delegate, the applicant indicated that he attended church in China, from a young child, on a weekly basis up until coming to Australia. In contrast, in the Tribunal hearing, the applicant indicated that he only attended church weekly up until the age of 11 or 12 when he started to attend church less regularly.
In the interview with the delegate, the applicant indicated that in China 12 other individuals including the applicant were arrested at a family temple which was a home where no one resided. In contrast, in the hearing, the applicant indicated that he and five others were arrested in a home of one of the parishioners where that person resided.
In the interview with the delegate, the applicant indicated that he was baptised at the age of four. In contrast, in the hearing the applicant said that he was baptised at the age of six or seven.
In the hearing, in response to these various inconsistencies, the applicant indicated that it has been a long time and it is hard to remember all the details.
The inconsistencies on these issues are considerably undermining of the applicant’s credibility as to his claimed church activities in China and his arrest. While the Tribunal might accept that the applicant could be legitimately confused as to the age at which he was baptised, the first two issues are more significant. The Tribunal does not consider that the applicant would forget details surrounding what would be a searing event in his life: as a [age] of being detained and beaten up by police. The Tribunal considers that the numbers detained together with the applicant would be clear in the applicant’s mind. For the same reason, the discrepancy in evidence as between 12 other individuals being detained and only five is significant.
Secondly, the applicant failed to mention in his relatively detailed written claims that his grandmother was the formative influence in introducing him to Christianity and attending church activities when he was young, and that she herself was arrested on one occasion when the applicant was very young and on another occasion in the period leading up to the applicant coming to Australia.
In the Tribunal hearing, the applicant indicated that it was his grandmother who was the initial influence in the applicant attending church. He said that he would attend church activities with his grandmother from an early age. The applicant indicated that he attended church on a weekly basis up until the age of 11 or 12 when he started to attend church activities less frequently.
When asked to provide details of the arrests of his grandmother that he had indicated in the hearing, as indicated above, the applicant said that he had only vague details as to the earlier arrest and that he cannot remember the timing of the second arrest, before indicating that it happened in [details deleted] after he was arrested. Details of the applicant’s grandmother being arrested on two occasions had earlier in the hearing been elicited after a specific question from the Tribunal about whether she had suffered any harm.
As put to the applicant in the hearing, the detailed written claims for protection make no mention of the applicant attending church with his grandmother including on a weekly basis. Nor do the written claims make any reference of his grandmother being arrested on multiple occasions as a result of her church activity. In response, the applicant said that he did not understand what to say in his written statement.
The Tribunal does not accept this explanation. The written statement is reasonably detailed. If true, the Tribunal considers that the applicant would have recounted in the statement the initial influence of his grandmother in church attendance and the fact that she, in addition to the applicant and his parents, was also arrested on two occasions. Considering the entirety of the credibility issues identified in this decision, the Tribunal is inclined to think that the applicant, in response to the Tribunal’s question as to whether his grandmother had suffered any harm, simply untruly stated that she had been arrested, as that would be more consistent with the broader claims of systemic harm directed towards underground church attendees.
Thirdly, the applicant did not display knowledge of Christianity consistent with his length of claimed church attendance – attending church services reasonably regularly since a young age in both China and Australia. On the applicant’s evidence in the Tribunal hearing, he attended church weekly up until the age of 11 or 12 and then less frequently in China. However, the applicant indicated that he has attended a church in Australia since 2008, two to three times a month. The applicant has provided no evidence by others, such as supporting statements of fellow parishioners or pastors of church attendance in Australia.
In the context of many years of claimed church attendance in both China and Australia since an early age, the Tribunal is concerned that the applicant was not able to tell the Tribunal in the hearing what the first and last books of the Bible were. The applicant said that he knows that the first book of the New Testament is Mark (in fact it is Matthew) but he did not have the other information. Further, the applicant incorrectly indicated that Jesus Christ was dead for seven days before he was resurrected. The correct answer is three days. In response to a question by the Tribunal as to the names or the occupations of those who were crucified together with Jesus Christ, the applicant incorrectly indicated that Jesus Christ was crucified with other disciples, which is incorrect. The Tribunal asked the applicant who was responsible for the crucifixion of Jesus and the applicant indicated Judas, which is correct in the sense that Judas betrayed Jesus. When the Tribunal asked the applicant who was the Roman who ordered the crucifixion of Jesus, the applicant did not know that it was Pontius Pilate.
Of quite basic questions asked of the applicant in relation to the life of Jesus Christ and Christianity, the applicant only correctly indicated that Judas betrayed Jesus. The Tribunal acknowledges that caution must be exercised in determining a person’s spiritual faith through quizzes in relation to their faith. Nevertheless, the lack of relatively basic knowledge of the applicant on a number of issues reinforces other credibility concerns identified.
Fourthly, the claims by the applicant as to the arrests of him and his parents are not consistent with independent information before the Tribunal as to the treatment of ordinary parishioners in small underground churches in Fujian Province. In the hearing, the applicant indicated that the numbers of worshippers in the underground church he attended were between 20 and 30 people, with occasionally up to 50 people attending. In the hearing, the applicant indicated that his parents were ordinary parishioners. The applicant did not indicate that he or his parents were not proselytisers, leaders or engaged in any type of political advocacy as part of their church activities.
The Tribunal discussed with the applicant in the hearing DFAT information extracted in this decision concerning the treatment of Christianity in Fujian Province and in particular the treatment of ordinary parishioners in relatively small house churches. The Tribunal pointed out that the DFAT information indicates that there are more than 2.5 million Protestant and Catholic house church attendees in Fujian province. The Tribunal noted DFAT’s view that congregations of up to 50 people can meet in private houses without being closed down or repressed by authorities. The Tribunal made reference to research undertaken by the Refugee Review Tribunal in August 2012 which indicated a relatively tolerant attitude in that Province to unregistered Christians at that time and a tolerant attitude in the past.[6] The Tribunal indicated that this suggested that the tolerant attitude in Fujian Province had been in place for some time.
[6] Refugee Review Tribunal, Country Advice, China – CNH40767 – Christians in Fujian Province – Return of failed asylum seekers, 16 August 2012.
The Tribunal noted to the applicant that the independent information did not support the claims that either the applicant or his parents, being ordinary parishioners and not proselytisers, leaders or political advocates, would have been detained as claimed by the applicant. In response, the applicant indicated that no one would know if these things had happened. The applicant concluded that he is not lying and that practitioners of Falun Gong and Christians are persecuted in China.
The Tribunal notes that independent information as to the treatment of Christianity in China is comprehensive, including from agencies of many governments, including the US and Australia, as well as detailed reports by NGOs and human rights organisations. The independent information does indicate that repression against Christianity can occur and that the treatment is significantly diverse across China. The Tribunal is confident that the information provided in the DFAT report on Fujian Province provides an accurate account. The Tribunal considers that the independent information as to the treatment of ordinary underground church practitioners in Fujian in reasonably small gatherings in house churches is not consistent with what the applicant claims since 2005 to have happened to himself and his parents.
Fifthly, the delay by the applicant of six years from arrival in Australia in applying for protection, including a number of years as an unlawful non-citizen undermines the claimed fears. The applicant’s written claims indicate that he left China fleeing persecution based on being a Christian. The applicant acknowledged in the hearing that he had no lawful visa status for a number of years. Information indicates that the applicant’s [visa] had ceased at least by March 2011, and he held no lawful visa from then until February 2015.
The applicant responded in the hearing in relation to the delay by indicating that he did not know that he could seek protection while holding a [visa]. This does not explain why the applicant would not have applied in the years after the [visa] ceased. The applicant said that he did not learn of the option of a protection visa at an earlier stage. He said that this was told to him by someone in his church. As put to the applicant in the hearing, the Tribunal has significant difficulty accepting that the applicant would not have heard of the option of a protection visa at an earlier point in time, particularly if he had fled China in 2008 fearing persecution.
The very significant delay in seeking protection, including for a number of years as an unlawful non-citizen, undermines the applicant’s claimed fears.
The cumulative impact of these six credibility concerns significantly undermines the applicant’s claims and credibility. The Tribunal is not satisfied that the applicant has been a credible or truthful witness. The numerous and significant credibility concerns cause the Tribunal to not be satisfied as to any of the key substantive claims made by the applicant.
The Tribunal acknowledges that the applicant had some very rudimentary knowledge of Christianity. The Tribunal is prepared to accept that the applicant did attend a house church with his parents or grandmother as a young child and was baptised in 1996. However, the Tribunal is not satisfied that the applicant maintained church attendance in any meaningful way during his teenage years or adulthood in either China or Australia.
The Tribunal is not satisfied that the applicant, his parents or his grandmother were detained as claimed due to their church attendance or that authorities have any adverse interest in the applicant or his family as a result of their church activities.
The Tribunal is not satisfied that the applicant is currently a practising Christian or would have any desire to practise as a Christian on return to China.
Given those findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of past church activities, or that the authorities have any adverse interest in the applicant as a result of those activities or future church activities.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a reason set out in s.5J(1) of the Act.
In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk of him suffering significant harm.
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

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

[2018] AATA 3958

25 July 2018

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