1602289 (Refugee)

[2016] AATA 3977

1602289 (Refugee) [2016] AATA 3977 (20 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602289

COUNTRY OF REFERENCE:                  China

MEMBER:Bruce MacCarthy

DATE:20 June 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 20 June 2016 at 9:25am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of China, applied for the visas [in] March 2014 and the delegate refused to grant the visas [in] September 2014.

3. The applicants sought review of the delegate’s decision and the Tribunal, differently constituted (“T1”), affirmed the delegate’s decision on 20 November 2015 (see file 1416702).  The applicants sought review of T1’s decision by the Federal Circuit Court and, [in] February 2016, the Court (by consent) set aside the decision and remitted the matter to the Tribunal to be determined according to law.  The matter is now before the Tribunal, as presently constituted (“the Tribunal”), pursuant to the order of the Court.

4. The applicants appeared before T1 on 22 September 2015 to give evidence and present arguments.  The first-named applicant also appeared before the Tribunal on 16 June 2016 to give evidence and present arguments.   The Tribunal also received oral evidence from two leaders of the applicants’ church in Sydney.  The hearings were conducted with the assistance of interpreters in the Mandarin and English languages.  The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

5. 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

6. 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).

7. 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; ...

8. 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.

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

10. 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.

11. 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 he has 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 probability of the persecution occurring is well below 50 per cent.

12. In addition, an applicant must be unable, or unwilling because of his fear, to avail himself of the protection of his country or countries of nationality.  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.

13. 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.

    Section 499 Ministerial Direction

14. 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. 

    Member of the same family unit

15. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse of the person.

    Credibility

16. When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made.  This may involve an assessment of the credibility of the applicant.  When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.  However, it is not required to accept uncritically each and every assertion made by an applicant.  Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

17. If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. In connection with the application, the applicants have submitted photocopies of some pages of their Chinese passports.  Given this evidence, and evidence in the Department’s records, the Tribunal finds that the applicants are citizens of China.  Accordingly, the Tribunal will assess the applicants’ claims as against that country.  There is no evidence to suggest that either applicant has any right to reside in any country other than China.

19. In the present case, only the first named applicant has claimed to fear persecution.  His wife, the second-named applicant, has completed application form 866D, thereby indicating that she does not have her own claims for protection but is included in the application as a member of his family unit.  In these circumstances, the Tribunal will refer to the first named applicant as simply “the applicant.” 

20. The issue in this case is whether the applicant is a Christian and, if so, whether he faces harm in China because of his activities as a Christian, including any activities as a member of an unregistered Christian church in China.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Prior migration history

21. According to the decision under review (a copy of which the applicants provided to the Tribunal without comment), the applicant arrived in Australia [in] December 2013 with a [temporary] visa granted [in] November 2013.  He had applied for that visa [in] November 2013.  His visa expired [in] March 2014.  Since then, he has held Bridging visas between [a date in] March 2014 and [a date in] December 2015, and since [a date in] January 2016.

    Claims and evidence submitted to the Department

22. The application for protection was prepared with the assistance of the applicant’s (then) migration agent.  His claims for protection were made in a statement [in English with Chinese translation] set out in spaces provided for answers to questions 43-48 in application form 866C.  Those claims have been summarised on pages 4 to 5 of the delegate’s decision record. 

23. To confirm its understanding of the applicants’ claims, on 15 June 2016, the Tribunal read the following summary of those claims: 

    Your parents and at least one grandparent were devout Christians, and your grandmother suffered to the point of death during the Cultural Revolution.  When an official Chinese church was established in your home town more than 30 years ago, your parents and the pastor of the group in which they worshipped were invited to join that approved church.  However, they and some others were in conflict with the official church leaders and that led to the pastor being imprisoned and your mother being required to undergo re-education through labour.  Your father was also investigated.

    Your parents did not allow you to attend the official church and told you that it did not allow freedom of proper Christian belief.  As a result you have never attended one of the official churches in China.  Instead, you secretly attended unofficial church gatherings.

    When you were older, you were asked by the pastor to organise an underground church, and you did so with him as your spiritual leader, yourself as chairman of the church and the pastor’s [Relative A] as the church’s secretary.  Over the years, the membership of the church grew to nearly 100 members, but for security reasons, it was broken up into 6 smaller groups which met separately.  As a result of these precautions, the church was able to operate without incident until late in 2013.

    Although you later found out that your church came under suspicion in October 2013, the first indication that anything was wrong came [in] November 2013, when one of your members was arrested while conducting a Bible study group with about 7 or 8 young people.  The young people were released after about a week, but the older man was sent to detention.  Although the young people did not know the identity of any of the church leaders except the man who was sent to detention, you were concerned about the safety of the pastor, his [Relative A], and other leaders, so you suggested that meetings be suspended.  You later found out through a policeman that you knew that the leader who was sent to detention refused to inform on other leaders. 

    At this stage, without your knowledge, your wife started to think that it might be necessary for you both to escape overseas.  When you heard, [in] December 2013, that the pastor, his [Relative A] and [number] others had been arrested, and that you were suspected of being a leader, you travelled immediately to Shanghai and left China on the following day.

    After you left China, police came and questioned your parents and siblings about you.  Since arriving in Australia you have attended a Christian church.  Because you believe an arrest warrant has been issued against you, you fear to return to China.  You believe that, no matter where you go, you would face arrest because you were the leader of an underground church in your home town.

    The applicant confirmed that this was a fair summary of his claims.

    Interview

24. The applicant was interviewed by the delegate [in] July 2014, with the assistance of an interpreter in the Mandarin and English languages.  His migration agent was present.  A CD recording of the interview is included in the Department’s file at folio 47.  The delegate referred to elements of the applicant’s oral evidence on pages 6 - 9 of the decision record, though there is no narrative summary of that evidence.  The Tribunal has listened to the recording of the interview, and is satisfied that the delegate’s references to those elements are accurate.  At the hearing on 15 June 2016, the applicant confirmed that he did not take issue with the accuracy of the references to the written and oral evidence in the delegate’s decision record.

    The first hearing

25. The Tribunal has listened to a recording of the first hearing, and is satisfied of the accuracy of T1’s references to the oral evidence presented at the hearing.  At the hearing on 15 June 2016, the applicant confirmed that he did not take issue with the accuracy of the references to that evidence of T1’s decision record.

    Is the applicant a Christian?

26. As noted in the decision under review, when the applicant gave oral evidence to the delegate in July 2014, he “answered questions about Christianity with confidence and in detail” and he “described his religious beliefs in some detail.”  The delegate accepted that the applicant is a Christian.  His answers to the delegate’s fairly detailed questions about aspects of the Bible and about Christian beliefs were comprehensive.  Similarly, following the first hearing, T1 found that the applicant is “a practising Christian.” 

27. In support of his application, the applicant showed the Tribunal a number of photographs of activities in his church and identified himself in a number of those photographs.  He also provided copies of a number of church notice sheets, some of which, together with translations had been submitted by the applicant’s agent before the hearing.  Translations of two of the notices reveal that the applicant’s name and that of his wife are mentioned in various capacities.  In particular, the applicant’s name is shown as undertaking a leadership role in the church.  In oral evidence at the second hearing, the spiritual leader of the Church said that the applicant was now attending a Bible College.  Given this evidence, together with a translated statement by the founder of the Church, and oral evidence by the founder and the spiritual leader of the church, the Tribunal is satisfied that the applicant and his wife have regularly attended that church for more than a year.

28. On the basis of evidence previously submitted to the Department, the Tribunal is also satisfied that the applicant previously attended a church based in [Suburb 1].  In this regard, the Tribunal notes that, when he gave evidence to the delegate, there was some apparent contradiction in the location of the church he was attending.  At the hearing in June 2016, he explained that, when he first joined the church, it had an affiliated “gathering place” in the suburb of [Suburb 2], and that he came to know about the Church because of a sign that he saw at that place.  He explained that, in early 2015 he was able to attend both the church based in [Suburb 1] and his current church in [Suburb 3].  He attended the former church between [specified hours] on Sundays, and he attended the latter church between [later specified hours].  He also explained that, since the time when he presented a reference to the Department, the church at [Suburb 1] had sold its then church and opened a new one, and its lease on the gathering place in [Suburb 2] had expired, with the result that the church at [Suburb 1] now only meets at one location. 

29. Having listened to the recordings of both the interview with the delegate and the hearing before T1, and having had the opportunity to take oral evidence directly from the applicant and the leaders of his church, the Tribunal finds that the applicant is a sincere Christian. 

    Was the applicant a Christian in China?

30. Following the first hearing, T1 found that it was “possible that he did establish a small Christian group of the type he has claimed in China” and that, if that were the case, he would have had “some sort of leadership role” in such a church. 

31. At the hearing in June 2016, the Tribunal took evidence from the founder of the Church currently attended by the applicant and from the spiritual leader of that church.  They attested to the applicant’s genuine Christian belief, and to his involvement in activities of the church.  Though he first attended that particular church only about 13 months ago, he has been a leader in a number of the church’s activities, particularly Bible study.  The spiritual leader of the Church said that, when the applicant started attending that church, he was certainly not new to the Christian faith.

32. Given the applicant’s overall level of knowledge of Christianity and his obvious sincerity regarding his faith, the Tribunal is of the view that he could not have achieved his current level of knowledge only on the basis of attending churches since arriving in Australia.  It accepts that he is the product of a Christian family, and finds that he was actively involved in a Christian church in China.  It therefore accepts his claim to have founded a particular underground church in late 2010 and to have been actively involved as a leader of that church in the succeeding 3 years. 

    Does the applicant face danger in China because of his leadership of a church?

1. The Tribunal has considered whether the fact that the applicant was able to leave China using a passport issued in his own name is an indication that he is not adversely regarded in China.  However, it notes that the applicant’s passport was issued in 2009, which is long before he claims to have come under suspicion.  His visa was issued [in] November 2013, which is consistent with his claim that his wife was organising visas at a time when she feared that problems might arise for them, but before they were aware of any particular risk.  In these circumstances, the Tribunal accepts that it was possible for the family to leave China from Shanghai, even though they may have come under suspicion in their home province a few days before.

2. The applicant did not seek protection immediately on arrival in Australia in December 2013.  This could suggest that he did not come to Australia in fear of persecution.  However, he has consistently maintained that, when he arrived in Australia, he had no relatives here and knew no-one.  Initially, he did not know about Australia’s migration system.  He said that his first priority had to be to establish himself in the country, and that he did so in the knowledge that the visa with which he came here was valid for 3 months.  He applied for protection the day before that visa expired.  The Tribunal accepts this explanation and draws no negative inference from his failure to seek protection immediately on arrival in Australia.

3. The applicant has made no claim that he has ever personally experienced harm because of his involvement in the Christian church.  Rather, he claims that he is now at risk of such harm because his role as a leader of his church has been discovered.

4. The Tribunal has considered the country evidence cited in the delegate’s decision to regarding the existence of some relatively large house churches in the applicant’s home province the right of Christians to meet and study the Bible in small groups in homes without registering the government.  However, the Tribunal notes that, in the first of the articles quoted by the delegate on page 7 of the decision record, the US Department of State, in the International Religious Freedom Report for 2013 acknowledged that Chinese authorities “still regularly harass and detained small groups, however, that meet for religious purposes in homes and other locations” even though some other church members say that they have more freedom than they did in the past.  It also notes that the other 2 articles cited by the delegate are older, dating from 2009 and 2008 respectively.

5. When the Tribunal asked the applicant about the country information cited in the delegate’s report, he said that people who are members of government-approved churches may also be allowed to gather in small private groups the Bible study and prayer, but this is less tolerated in the case of people who refuse to join the approved churches.

6. When his case was considered by the delegate, the applicant had made claims that other leading members of his church had been arrested and that police had, since his departure from China, questioned his parents [and other family members] about his activities as a leader of his church.  A year later, at the hearing before T1, he provided evidence in the form of media articles regarding the arrest of Christians who opposed removals of crosses in his home province.  At the hearing held in June 2016, the applicant showed the Tribunal a number of pictures of people who he said had been severely beaten by police when they tried to prevent the destruction of crosses. 

7. He said that, in some cases the crosses were being taken off government-approved churches.  He said that, if the government was prepared to do that to its approved churches, it spoke volumes about what they might do to private churches. 

8. The Tribunal has had regard to that evidence, and to photographs submitted by the applicant at the hearing in June 2016 which he said showed pictures of people severely beaten by police when the violence may have only occurred because people were protesting about what was going on.  It may not have been indicative of general violence against members of churches.  Indeed the Tribunal notes that an article from the Guardian of 27 August 2015 submitted by the applicant referred to a roundup of church “activists.”  The Tribunal mentioned that, in Australia, activists opposing such things as demolition of houses in particular areas may sometimes breach the law and be arrested.

9. The totality of the articles submitted (see folios 61 to 76 of Tribunal file 1416702) is consistent with information presented in the DFAT Thematic Report “Unregistered religious organisations and other groups in the People Republic China” dated 3 March 2015, which is a report prepared by the Department of Foreign Affairs and Trade for protection status determination purposes.  Given the evidence before it, the Tribunal is satisfied that, commencing in late 2013, Chinese authorities in the applicant’s home province have initiated a demolition campaign aimed at churches, and, having been angered by opposition by local church members, have tried to stifle dissent by, among other things, coming to the homes of targets with a list containing names and photographs of local Christians and taking them away (as stated in the particular article quoted in the previous paragraph).

10. In this context, the applicant’s claim that leaders of his church were arrested in November 2013 is plausible.  The articles submitted by the applicant, dated in July and August 2015, indicate that the difficulties faced by Christians in the applicant’s home province has continued. 

11. At the hearing in June 2016, the applicant said that both of his parents suffered injuries arising from adverse attention from authorities because of their religious activities.  He said his father injured his [body part] so severely while running away from police that [specific treatment was required].  His mother also injured her [body part] when she came home to find the family home had been locked by police and she tried to climb up into the house and fell.  He acknowledged that the authorities had not directly caused either set of injuries, but he said it was illustrative of the fact that the family was suffering because of adverse attention by the authorities.

12. The founder of the applicant’s current church said that he came from the same province as the applicant, though not from the same precise area.  He said that he had recently returned to China for a brief period but had not had the time to go to the applicant’s home town and visit the applicant’s family.  He gave evidence regarding difficulties experienced by Christians in his home province which was consistent with the applicant’s claims as discussed above.

13. On the basis of all the evidence before it, the Tribunal is satisfied that, although a few years ago the lot of Christians in the applicant’s home province was significantly better than it had been under the Cultural Revolution, local authorities were targeting church leaders in late 2013 and that this practice has continued.  Against this background, the Tribunal accepts that the applicant has presented a true account of his experiences in China.

14. The Tribunal therefore accepts that a number of leading members of the applicant’s church in China were detained in November 2013 and that, since then, Chinese authorities have become aware of his role as another leader of that church.  It accepts that the Chinese authorities have harassed the applicants’ parents [and other family members].

15. Against this background, the Tribunal finds that there is a real chance that he, too, may face detention and physical harassment if he were to return to China in the reasonably foreseeable future.  The Tribunal is satisfied that such treatment amounts to significant harm, and therefore persecution. 

16. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s.36(2)(a) of the Act.

17. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that she, as the applicant’s wife, is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that she will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

18. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Bruce MacCarthy
    

    Member