1601613 (Refugee)

[2017] AATA 2929

1601613 (Refugee) [2017] AATA 2929 (14 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601613

COUNTRY OF REFERENCE:                  China

MEMBER:Angela Cranston

DATE:14 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2017 at 4:35pm

CATCHWORDS

Refugee – Protection Visa – China – Religion – Catholic – Social group – Persecuted Catholics – Family members assaulted by police – Applicant overstayed temporary visa – Inconsistent evidence

LEGISLATION

Migration Act 1958 ss 5(1), 36, 36(2)(a)-(c), 36(2A) -(2B), 65, 91R, 91R(1) ,91R(1)(b), 91S ,424A ,499

Migration Regulations 1994 Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicant who claims to be a citizen of China, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] January 2016.

3.    In her application, the applicant stated the following:

I was born on [date] in Fuqing [in] Fujian province. Under my parents influence, I started to believe in Catholics since I was little. My parents were persecuted for their religious belief so I can’t go home now. I apply for protection and hope that Australian government could protect me to let me stay here to believe in God.

There is no religious freedom in China, my parents were attending underground church gatherings. Although it was not in public, all the members are devoted and fulfilled with joys. My parents also asked me my brother to believe in God. I was baptised not long after I was born. I went to the gatherings when I was little. I found that there were very careful and my parents didn’t want me to tell others a school. I asked my mother why the government didn’t want us to attend the gatherings. My mother told me that the government believes in communism and didn’t want us to believe in God if we all believe in God they couldn’t keep the government. So the government and school would treat us as illegal gatherings. We could know God is the blessings and we must believe in God and get eternal life by the blessings of God. Because of the conviction, we never gave up our gatherings sometimes also praying at home. Therefore the blessings from God upon us, my study was also excellent. Because of the belief, my parents rarely argued and I was getting along very well with my brother.

Unfortunately my mother was diagnosed with [a serious medical condition] she had to endure a lot of pains. In order to reduce the infections and pains, she prayed to God with her confidence and slowly the pains were reduced. My mother and me saw all of this and firmly believed that God could bring mother out of the sufferings. My mother and all members of the church gathered together and pray we believe that the spirit of God would work inside of us and my mother would recover. Because of the blessings from God, my mother was becoming more and more confident and joys and peace were appearing on her face. I saw a look on her face was filled with happiness and peace. I realised that how amazing the God could work. The power was so great and the blessing was enormous. However, in 1999 because of the monitor of the local government, we couldn’t have normal gatherings. My mother was questioned for organising the gatherings so she was threatened by the local government. She was very tired and the [medical condition] suddenly deteriorated and her organs failed finally she passed away. I was very sad but I also believe that she is with God in heaven we will meet there and serve God together.

My father was working at a [company]. She was [in a certain role]. As my mother passed away, my father had to take all the burdens. So he was working very hard but with good income. My father believe that this was all given by God so we prayed to God at home and hoped that God will protect our career and family. Brothers and sisters gathered at different places in secret. However on [date] December 2005, eight brothers and sisters are gathering together at home suddenly five police broke in they searched the house and arrested my father. My father questioned them, two police started to beat him up. Later we were taken to the local police and locked up in a small room. As I was not an adult, I was asked not to attend this again and this is our firstt to be arrested. So they asked us to write down the guarantee letter and paid the fine of [amount] then we were released.

As there is no freedom in China my father sent me to Australia in order to protect me. Thank God I came to Australia [in] March 2007. After I arrived in Australia, I went to church and I was very close to God. I told my family about this they asked me to rely on God and serve God with full heart.

[In] January 2010 my family was again arrested and detained for 15 days. My father was arrested for the second time so he was tortured and pursued inside the police station. My brother saw my father was harmed so he went to protect my father however he was beaten and his [fingers] were broken by them. My father’s [eye] was [beaten]. All other members were also detained and fined. I was very worried about them, I said I want to go back but my father and brother said it would be dangerous for me to go back. But I was missing so much so secretly bought a ticket to go back by transferring [in another country] and I didn’t go back directly but stayed at Xiamen where I met my father and brother. However my family was worried about my safety so I didn’t stay long and came back to Australia.

Because at first I didn’t I could apply for protection and I never communicate with people. I also thought that I was on student visa so I didn’t apply at that time. Until recently I met a church member who told me that I could apply for protection. So I hope Australian government could use to consider my application and protect me from being persecuted by the local government in China. I was living in fear and please protect me.

4.    The applicant appeared before the Tribunal on 27 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5.    The applicant stated her English statement had been read back to her Mandarin, it was correct and she did not want to change or add anything.

6.    The applicant stated that she came to Australia [in] March 2007 on a student visa that ceased [in] October 2012 after which time she had no visa.  When the Tribunal asked why she didn’t go back to China after [date] October 2012, she stated at that time her family was persecuted and when she learned of that she feared she would receive the same treatment. She then stated they were arrested on [date] January 2010 and she knew at that time but only learned later in 2010 they had been seriously harmed when her [brother] told her that big trouble was in the family.

7.    The applicant stated she went back to China on two occasions, once in 2008 and once in 2011 and applied for a protection visa in October 2014.

8.    The applicant stated she was Catholic and had been arrested by five police in 2005 when she attended a church gathering. She stated they intimidated her and tortured her and also showed her a video of church sisters in a mental house and others at a labour camp. She stated they told her not to spread her religious beliefs and asked her to write a statement saying she would not attend further gatherings and she was released after [amount] yuan was paid.

9.    The applicant stated that upon her departure from China in 2011 she was interrogated at the airport by police and guessed it was because her name was on a blacklist because she had tried to contact Church members and submit their names to a local court because of injuries to her brother and father which she knew would be pointless but did it anyway. The Tribunal asked what they planned to argue before the local Court and she stated she wanted clarification about why her brother and father had been tortured and injured when arrested [in] January 2010 and detained for 15 days. She stated her father was hit in the head and lost his [eye] and her brother’s [fingers] were cut off. The Tribunal put to her that in her statement she said her brother’s fingers were broken. She repeated they were cut off. The Tribunal also put to that at departmental interview it was interpreted that she said his arm was broken. She repeated it was his fingers. The Tribunal put to her that she had also stated she understood the interpreter at that interview. She stated she had submitted photos to the Department. The Tribunal put to her that it had not seen those photos.

1. The applicant stated she came to Australia in 2007 because of her arrest in 2005 and her family did not want her to be further persecuted. The Tribunal asked why it took her so long to apply for a protection visa and even after her student visa ceased in 2012. She stated she was an introvert and since misfortune fell on her family, she had been depressed. She also stated she was unaware what the protection visa was about and was unsure if she was eligible. She also stated she could not relate to other people and didn’t have family in Australia. The Tribunal put to her that she said her personality prevented her from applying for a protection visa but she had applied to a Chinese Court about her brother and father. She stated that was different because in China she had her relations and friends who supported and advised her but in Australia she was by herself and could not share her problems. The Tribunal asked how lodging something in China and then leaving would succeed. She stated when she applied to the court she was resentful and her father said the Bible said they should submit to the authorities. The Tribunal asked what she hoped to achieve by lodging a court application nearly 2 years after her brother and father’s mistreatment. She stated she hoped they would pay for the treatment of their injuries. The Tribunal asked why none of this and the fact that she was questioned was in her statement. She stated her friend helped her prepare the statement and she did not want to ask her for too much time and it was impossible to record all the details. She also stated her friend’s English was not good.

2. The applicant stated she was Catholic since birth and read the Bible and attended Sunday mass. She also observed the 10 commandments and other Catholic regulations.

3. The applicant stated the Bible was divided into the Old and New Testament and that Jesus’ father was a carpenter but his real father was God.

4. The Tribunal then asked what the church sacraments were and confirmed that the interpreter understood the word ‘sacrament’. The applicant stated it was in memory of the last supper and Jesus was crucified and when they ate the bread that was Jesus’ body and that Jesus was always with them.

5. The Tribunal again asked. The applicant stated the ceremony of entering the alter, the ceremony of holy preaching and the ceremony of communion. She then stated she did not understand the question and asked did the Tribunal mean when they attended Mass?

6. The Tribunal put to her that Catholics went through certain ceremonies that made them closer to God and asked if she knew what they were. The applicant then stated the major ceremonies included Christmas, Easter, the descent of the Holy Spirit and the ascent of the Holy Mother.

7. The Tribunal then asked if she knew how many sacraments there were and she stated Baptism, a second one which the interpreter could not translate, the Holy Body and repentance via the priest. The Tribunal asked her to explain the second sacrament that she had said. The applicant stated in order to believe you had to believe the miraculous signs first, for example that Jesus was born to Virgin Mary.

8. The Tribunal put to her that Baptism, taking the holy body and repentance were three but there were more. The Tribunal also put to her that the fourth explanation that she had given did not describe any of the sacraments known to the Tribunal. The Tribunal asked if she knew how many sacraments there were and she stated many and asked did the Tribunal mean the miraculous signs. The Tribunal put to her that it had explained what sacraments were and had also indicated that baptism, taking the holy body and repentance were three. The Tribunal again asked how many there were and she said seven. The applicant stated the fourth one was the ceremony of pouring oil over the head. She stated the fifth one related to the fact that God endowed priests with power to serve him and another one related to holy marriage. The Tribunal asked what she meant by pouring oil over the head and she stated when they were baptised the priest poured oil over their head.

9. The Tribunal put to her that it might find that she did not know what the seven sacraments were. She stated she was unsure what the Tribunal meant.

10. The Tribunal put to her that because she had named some of the sacraments but not others then it may find she did understand the question. She stated she did not know how to express the ideas, there was Holy Communion and preaching by priests.

11. The Tribunal asked which sacraments she had received and she stated they received the holy body. The Tribunal asked which ones she had received and she stated the descent of the holy God into her body. She also stated with God in her body she felt blessed and secure.

12. The Tribunal again asked its question and asked which sacraments she had received. She stated she could not understand what the Tribunal meant and could only say that she had been baptised and the Holy Spirit was in her.

13. The Tribunal put to her that she had delayed in applying for a protection visa, that she went back to China twice after her initial arrival in Australia, that the second time she returned she said she had filed court papers about her father and brother and that she was subsequently questioned at the airport by police but none of that was in her statement. The Tribunal also put to her that it was difficult to understand what she hoped to achieve by applying to the court nearly two years after her father and brother were allegedly tortured and had then left the country, that she had said she was an introvert which stopped her from applying for a protection visa however she had allegedly lodged court documents in China, and that she said that her brother and father were harmed and [her] brother’s fingers were cut off but in her written claims she said his fingers were broken and at Departmental interview in 2015 she had said that his arms were broken. The Tribunal also put to her that it may find that she knew some things about Catholicism but it may not be satisfied that she could tell the Tribunal about sacraments or which ones she had had and that she may be expected to know these things since she claimed to have been a Catholic since birth and claimed to have practised in China and Australia.

14. The applicant stated in 2008 she went back to China because she was sick and returned to China for treatment and at that time she was still on her student visa and when she was in Australia she knew she had religious freedom and so her main task was to study rather than to think about the protection visa and what that was about. She also stated her personality prevented from asking people for help about the protection visa and as a result she lost that period of time but in fact in 2011 she did consult with her migration agent regarding her student visa and the agent told her that it was a student visa so she was not eligible for a protection visa and it was only in 2014 that a church member of hers got to know what happened to her family and started to encourage her to apply for a protection visa.

15. The applicant stated that she lost the papers in 2011, that she had received help in relation to her statement but her friend didn’t have much time and she had just given her the rough idea. She also stated her English had not been good enough. She also stated she was able to lodge papers in China because she had friends and relations supporting her. She stated she left after papers were lodged because she had concerns and fears as a result of the lodgement and her father told her it was pointless her doing such things and she would be persecuted.

16. The Tribunal also put that she did not seem to know the sacraments or which ones she had received. The applicant stated she was not aware of what the Tribunal meant by the word sacrament.

17. The Tribunal subsequently wrote to her pursuant to section 424A as follows:

The particulars of the information are:
At interview with the Department [in] October 2015 it is orally translated that you stated the following:

“But neither my father nor my brother were prominent Catholics so why were they persecuted and why were they injured and even disabled. So my brother is only in his [age] and his arms are broken and it is a great harm to him”.

This is relevant because it may be inconsistent with your written statement which states that your brother’s [fingers] were broken and your claim at hearing on 27 October 2017 that your brother’s fingers were cut.

If the Tribunal finds that your answers are inconsistent then the Tribunal may find that it does not accept that what you’re saying is true and would, subject to your comments affirm the decision under review.

1. The applicant responded stating that she had said that her brother’s hand was cut however the interpreter interpreted that her brother’s arms were broken.

Country Information

1. According to the Catholic Archdiocese of Melbourne: The Seven Sacraments of the Church are as follows:

2. CCC 1210 Christ instituted the sacraments of the new law. There are seven: Baptism, Confirmation (or Chrismation), the Eucharist, Penance, the Anointing of the Sick, Holy Orders and Matrimony. The seven sacraments touch all the stages and all the important moments of Christian life: 1 they give birth and increase, healing and mission to the Christian's life of faith. There is thus a certain resemblance between the stages of natural life and the stages of the spiritual life.

RELEVANT LAW

1. 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

1. 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).

2. 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.

1. 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.

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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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. 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

1. 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’).

2. ‘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.

3. 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

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Definition in Article 1 of the Refugees Convention in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.

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

3. In her application, the applicant stated that she believed in Catholicism when little, that she was baptized not long after birth, that her parents were persecuted for their religious belief, that on [date] December 2005, five police arrested her and her father when they broke in on a gathering at home but because she was a child, she was asked not to attend again and to write a guarantee letter and paid a [fine] and was then released. She also stated that because there was no freedom in China, her father sent her to Australia to protect her and that she arrived in Australia [in] March 2007. She also stated that [in] January 2010 her family was again arrested and detained for 15 days, that her father was harmed and her brother’s [fingers] were broken and because she missed them, she indirectly went back and stayed in Xiamen where she met them.

4. However, at hearing the applicant stated that when she went back to China (in November/December 2011) after her father and brother were harmed in January 2010, she filed Court papers about what had happened to her father and brother and that as a result, she was questioned at the airport by police when she left.  When the applicant was asked why none of that was in her statement, she stated her friend helped her prepare the statement, that her friend’s English was not that good and her friend did not have much time and she did not want to ask for too much and it was not possible to record all the details.

5. The Tribunal does not accept that explanation because the applicant’s written English statement is long and displays a good level of English. In addition, given the level of detail in that statement that deals with events from long ago, the Tribunal does not find it unreasonable to expect that if the applicant had filed papers with the court about what had happened to her father and brother and if she had been questioned by police at the airport as a result, then she would have included that in her written claims since the police’s alleged action should be upmost in her mind given that it was the applicant’s most recent adverse interaction with those she allegedly feared and who, her father allegedly told her, would persecute her by doing such things.  In reaching this conclusion, the Tribunal has also considered that when asked, the applicant was unable to explain what she hoped to achieve by filing papers with the court nearly two years after her father and brother were allegedly tortured as well as how she was supposed to achieve it given that she left China shortly after allegedly lodging the papers. Although she stated that she hoped they would pay for the treatment of her father’s and brother’s injury, she also stated she knew it would be pointless and that her father told her so and also told her that by doing such things she would be persecuted.

6. The Tribunal has formed the view that the applicant did not include these events in her statement and could not plausibly explain her alleged actions because she was not talking about events that had occurred but was been making up her claims.

7. In reaching this conclusion, the Tribunal has also taken into account that the applicant arrived in Australia [in] March 2007 but did not apply for a protection visa until [November] 2014 and at a time when she had been unlawful for nearly two years even though she stated in her written claims that her father sent her to Australia in order to protect her. When this was put to her at hearing, she stated that it was related to her personality and she had always been an introvert and since misfortune fell on her family she got depressed. She also stated she was not aware what the protection visa was and was not sure she was eligible. The Tribunal is of the view that if the applicant’s father had sent her to Australia in order to protect her because she and her family feared persecution as Catholics, then she would have sought information about her protection options on or soon after her arrival and certainly before she became unlawful [in] October 2012. While the applicant stated that she was an introvert and became depressed, the Tribunal also notes that she has managed to navigate herself in and around Australia for many years and indicated that she had consulted a migration agent. The Tribunal is therefore not satisfied that it was beyond her capacity to investigate her protection options in Australia. While the applicant somewhat belatedly at hearing stated that her migration agent told her she was ineligible for a protection visa, the Tribunal does not believe her.

8. The Tribunal is also not satisfied, in light of her failure to claim protection until some 7 years after her arrival in Australia and some 1 and a half years after she became unlawful, as well as her voluntary return to China on two separate occasions, that she does in fact fear that she will be harmed in China. While the applicant has stated that on the second occasion she returned to China did not go back directly but stayed at Xiamen where she met her father and brother and that her family was worried about her safety so she did not stay long, this written claim does not sit well with her claims at hearing that when she was there she lodged court documents and the Tribunal does not believe her.

9. While the Tribunal accepts the applicant knew some things about Catholicism at hearing, the Tribunal also finds that she did not know other things, such as what the seven sacraments were. The Tribunal is also of the view that when asked about the sacraments at hearing, she did understand the question, since she was able to identify five and she knew there were seven. While the Tribunal accepts the applicant was able to provide some information and demonstrate some knowledge about the sacraments, there were two she was unable to provide any information about at all. Moreover, much of the information she did provide appeared to have been learned by rote, rather than something she organically knew because of her experienced Catholic belief.

10. The Tribunal is of the view that knowledge of the sacraments is significant, if not central, to Catholic belief. The Tribunal is also of the view that the applicant’s inability to answer this question is inconsistent with someone who was born Catholic or has attended church or underground Catholic or Christian gatherings in China and Australia as claimed. Although the Tribunal accepts the applicant knew some things, such as the Bible was divided into the Old and New testament and that Jesus’ father was a carpenter but his real father was God, in light of her lack of knowledge about all of the sacraments and combined with the other concerns already mentioned, the Tribunal finds the applicant has learned aspects of Catholicism for the purposes of the protection visa application, but she in fact has no genuine interest or commitment to Catholicism.

11. This leads the Tribunal to find that the applicant is not credible and rejects her claim that she is Catholic or Christian or has practised her religion in Australia or China as claimed. Neither does the Tribunal accept that her mother was questioned for organising Church gatherings, or that she and her family were detained, arrested, questioned and harmed or that she was made to write guarantees and paid a fine in December 2005, or that she fled China. Neither does it accept that in January 2010, her father and brother were again arrested, detained and harmed.

12. Neither does the Tribunal accept that the applicant secretly returned to China, nor that she filed court documents, was interrogated and is on a black list. Given that the Tribunal does not accept that any of the events the applicant alleges occurred in China have occurred or that she is Catholic or Christian, or that she has attended Church in Australia, the Tribunal finds the applicant will not be perceived as a Catholic or Christian or participate in underground Catholic or Christian gatherings if she returns.

13. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. 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 has found it does not accept that the applicant is or was Catholic or Christian in China or Australia or has attended Church in China or Australia or that she or her family suffered past harm in China. The Tribunal has also found that the applicant will not be perceived as a Catholic or Christian or participate in underground Catholic or Christian gatherings if she returns to China. As a result, the Tribunal is not satisfied that there is a real risk that she will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future. Therefore the Tribunal does not accept 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 that she will suffer significant harm.

15. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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

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

Angela Cranston
Member