1606948 (Refugee)

[2017] AATA 2014

1606948 (Refugee) [2017] AATA 2014 (11 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606948

COUNTRY OF REFERENCE:                  China

MEMBER:James Silva

DATE:11 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2017 at 12:28pm

CATCHWORDS

Refugee – Protection Visa – China – Religion – Christianity – State persecution – Credible witness – Genuine fear of harm – Inconsistent evidence – Delay in applying for protection

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 499

Migration Regulations 1994, Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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. The applicant is a man [age] from China.

2. He arrived in Australia [in] September 2012, as the holder of a [temporary] visa. He applied for a Protection (Class XA) visa [in] June 2015. [In] April 2016, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision. The applicant attended a Tribunal hearing on 10 July 2017.

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

   Criteria for a protection visa

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in the attachment to this decision.

   Claims and evidence

   Protection claims

6. The applicant seeks protection on the basis that he and his wife are Christians, and members of an unregistered church. His wife has practiced Christianity for some time. He became interested after his daughter recovered from a childhood illness, which the applicant attributed to God’s work. The applicant claims that the local authorities have targeted him (and other parishioners) on several occasions. They arrested him following a raid on a church gathering in 2007, detained and mistreated him, released him only after payment of a fine, and continued to monitor and harass him. He narrowly escaped arrest on another occasion. The police continue to harass him and his wife, and are asking when the applicant will return to China.

7. The applicant fears that the local authorities will continue to harass him if he returns to China, and that he will be unable to practice his Christian faith in safety.

   Background

8. The applicant is a [age] year old married man from Hebei Province, China. He is a Han Chinese.

9. The applicant attended school from [year] to [year]. He then claims to have worked as [Occupation 1] in a small [business], until about 2007. From then, he worked as a farmer, [details of work].

10. The applicant’s wife is from the local area, and remains in China as a homemaker and doing some farming. The couple’s [age] year old daughter attends [school]. The applicant’s family relies on remittances that he sends from Australia.

11. The applicant holds a PRC passport, issued [in] 2011, which he presented at the hearing. It indicates that he held a previous passport. The applicant explained that he had obtained his first PRC shortly before, but his daughter had drawn on it, requiring him to get a fresh passport. The applicant travelled to [Country 1] for five days in June 2012. He then entered Australia [in] September 2012, as the holder of a [visa]. As noted above, he lodged his Protection visa application [in] June 2015.

    Evidence

12. The evidence before the Tribunal includes the following relevant material: -

    §  The protection visa application form, attached to which is a typed statement of claims, and a partial photocopy of the applicant’s PRC passport.

    §  The applicant appeared at a Department interview held [in] April 2016, and a recording of the interview is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [April] 2016.

    §  The applicant’s application for review.

13. The applicant appeared before the Tribunal on 10 July 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant is not represented in this matter.

14. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in certain folios of the Department file [file number] was subject to paragraph 438(1)(a). It stated that disclosure of the information would be contrary to the public interest, because the folios contain information ‘relating to an internal working document and business affairs’. In light of the Federal Court decision in MZAFZ v MIBP, which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. Furthermore, the folios relate to: (a) an identification test that is not relevant to the substance of this decision, and (b) the first draft of the disclosure decision checklist. Given the Tribunal’s views on the validity of the s.438 certificate and the relevance of the information to this decision, the Tribunal has decided to take no further action in relation to the certificate.

    Receiving country

15. The applicant claims that he is a PRC national. He presented a PRC passport at the hearing, speaks Chinese Mandarin, and is familiar with that country. The Tribunal finds, on the available material and in the absence of anything to the contrary, that the applicant has PRC nationality. China is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

16. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal is mindful that applicants appearing before the Tribunal may be nervous, and that it may be difficult to discuss and evaluate a person’s spiritual beliefs. In the present case, however, the applicant gave vague and often very brief responses, often with lengthy silences. The Tribunal formed the view that he was not drawing on lived experiences, but rather trying to recall the claims that he had presented with his application. It has extensive concerns about his credibility.

    Christianity

17. In his protection visa application, the applicant described his introduction and adherence to Christianity as follows:

    §  His wife believes in Jesus, and many years ago, she persuaded him to accompany him to family gatherings. The applicant found the meetings calming, but did not join the congregation as he was ‘still not sure about God.

    §  In 2003, the applicant’s daughter fell ill. His wife said that God will bless their daughter. When she recovered, the applicant ‘started to believe in God’, and accompanying his wife to the meetings. The applicant was happy when he went to the gatherings.

    §  The applicant described a raid in 2007 (see below), which had dire consequences for him and his family. He stated that, despite this and further problems, he and his wife continued to believe in Jesus. They continued to attend family gatherings, albeit carefully.

18. The Tribunal discussed with the applicant aspects of his introduction to Christianity in China, the basis for his faith, his knowledge, and his practice, in both China and Australia. It explored these in a general way, taking into account the legal and social constraints on religious practice in China, and that small unregistered churches might have divergent practices. The key points to emerge were:

    §  The applicant said that his wife adhered to Christianity more than he does. He was not sure of their denomination, but said that they attended a small family-type church. He was not sure whether his [age] year old daughter believes in Christianity – he thought ‘probably not’, as she attended [school].

    §  The applicant could not recall when he was first introduced to Christianity, but later said that it was maybe five years earlier. He said that his wife had become interested some five years before he did; a cousin introduced her to it. He did not offer any insight as to why he – rather than his wife, who was a more committed Christian – had left China.

    §  The applicant said that he began to believe in Christianity after his daughter fell ill. He could not remember when this was; she was small at the time. From this time, he used to go to meetings regularly. The people at the meetings used to eat meals. He did not give further details as to what happened at the meetings, and could not recall any items (such as religious artefacts) that he had observed. Pressed for more details, he said that the police used to sometimes turn up at the meetings.

    §  The applicant hesitated when asked if he knew or could recall any prayers to God. He said ‘Thank God’. He said that he had not heard of any text involving the words ‘Our Father’.

    §  The applicant was unfamiliar with the Christian calendar. He nominated ‘April’ as an important occasion, and then added that was when Easter occurred. He was not sure why Easter was important. The applicant did not name other festivals but, in response to the Tribunal’s prompts, said that December was also important. He did not proceed to link this with Christmas.

    §  The Tribunal asked the applicant whether he or any family members were baptised. After a silent pause, he said that he is not, and he is not sure whether his wife is. He did not know what baptism involved; he also did not respond when the Tribunal alluded to its function in Christianity.

    §  Asked whether he practices Christianity, particularly since his arrival in Australia, the applicant said, after a lengthy silence, ‘rarely’. The Tribunal notes that the applicant mentioned during his Department interview that he had visited several churches in [Australia], but he did not repeat or elaborate on this at the hearing.

    §  The Tribunal alerted him to its impression that he did not know about Christianity, and did not practice it, which might lead it to conclude that he is not Christian. The applicant did not respond substantively to these comments.

19. The applicant has shown minimal knowledge of, interest in or even past exposure to Christianity, in China or Australia. His evidence was vague, uncertain and even lacking in a basic curiosity or engagement.

20. The Tribunal finds that the applicant’s claims about his exposure to Christianity, and his own faith, are not truthful. It does not accept that his wife has practiced for many years in China. It does not accept that she introduced the applicant to it, years before their daughter’s illness; or that the applicant became more interested or committed from 2003 (when his daughter recovered from her illness); or that he even attended or was exposed to such gatherings (including as a casual observer, or as a person who found them comforting). The applicant’s failure to provide any meaningful detail, such as what he observed, any prayers he heard, or a description of the activities (beyond holding meetings and ‘eating’) reinforce the Tribunal’s concerns. His lack of engagement on other questions – such as his daughter’s faith, the Christian calendar, and basic Christian concepts such as baptism – indicates that he was not speaking from personal experience, in either China or Australia.

21. The Tribunal finds that the applicant is not a Christian; he does not have Christian family members (such as his wife or any of her relatives); he has not participated in any relevant activities, in China or Australia; and he is not perceived as a Christian by anyone.

    Mistreatment as Christians

22. In his protection visa application, the applicant claimed that the local police targeted him and his family, as Christians, and that this prompted him to seek protection Australia. These claims are, in summary:

    §  [In] 2007, the police raided a gathering of [number] Christians who were meeting at the applicant’s home. They detained most of the participants for a week, but the applicant’s wife avoided arrest, as she was visiting her parents at the time. The police held the applicant for one month, during which they beat him up, insulted him, and denied him food. They released him after he paid a RMB [Amount 1] fine, warning him to desist from attending further ‘family gatherings’.

    §  The applicant then lost his job as [Occupation 1], and had to take up farming to subsist. The police often came to his home and harassed him, every few days (according to the applicant’s statement at the Department interview). Teachers and classmates used to bully his daughter at school.

    §  Following this, the applicant and his wife had to practice their faith with great caution.

    §  [In] 2011, the applicant narrowly escaped another police raid, which led to the arrest of fellow parishioners, and their detention for between a month and a year.

    §  After his departure from China, the police continue to come to his home and ask his wife when the applicant will return. His wife has informed the applicant that she still practices in fear, and that the police continue to arrest Christians.

23. At the Tribunal hearing, the applicant confirmed the general thrust of these claims. He repeated that he and his wife were able to practice Christianity only in secret, and were fearful. He said that the police once detained him, and released him upon payment of a fine. On that occasion, his wife had been visiting her sick mother. He also recalled an occasion when the police raided a gathering, and he managed to escape.

24. The Tribunal has significant concerns about the truthfulness of these claims:

    §  First, having concluded that the applicant is not a Christian, and was not associated with Christians, it follows that the Tribunal is not prepared to accept at face value that the local authorities pursued him for that reason.

    §  Second, the applicant’s account at hearing of what happened on those occasions reinforces the Tribunal’s doubts. While he repeated some aspects of his claims – for instance, that the police once detained him following a raid, that they released him after a period of detention and the payment of a fine, and that his wife had been visiting her family – his evidence as a whole was uncertain and changeable.

    -   The applicant told the Tribunal that the incident (in [2007]) took place at [details of location], he was detained for a few days, and he was released upon payment of a RMB [Amount 2] fine. He could not recall the month or year in which this occurred. This contrasts with his written statement, that the police raided a gathering at his home, that he was detained for one month, and that he had to pay a RMB [Amount 1] fine for his release.

    -   In his written statement, the applicant claimed that this detention resulted in him losing his job as [Occupation 1], the bullying of his daughter at school and continued police harassment. At hearing, the applicant was not sure if there had been any consequences following on from this raid. Prompted by the Tribunal, he said that the police did indeed come to home regularly and warn him not to continue his practice. 

    §  Third, the applicant confirmed that he had run away from another police raid (presumably a reference to the claimed [2011] incident), but offered no further insights.

    §  Fourth, the Tribunal was unable to elicit from the applicant any real insight as to why he – rather than his wife, whom he claimed was a more devout Christian, and presumably more at risk – decided to leave China. Similarly, he said that he obtained his (second) PRC passport in [2011], visited [Country 1] in July 2012 for five days, and then decided to travel to Australia. He said that he went to [Country 1] just for tourism, using money that he had saved. Although he wrote in his statement of claims that he had no chance to stay in [Country 1] (implicitly, to seek protection), because the tour guide had been too strict, at the hearing he did not link his trip there with any problems in China (as a Christian, or for any other reason).

    §  Finally, the applicant came to Australia in September 2012 (as evidenced by his passport, presented at the hearing), but did not lodge his protection visa application until June 2015. This delay adds to the doubt about his need for protection. Invited to comment on this at the hearing, the applicant said that he did not know about protection at the time. The Tribunal does not accept at face value that the applicant, who was evidently able to arrange his other basic needs in Australia (such as income, accommodation and food), could not have made enquiries about his migration options in Australia, if he was genuinely fearful of returning to China.    

25. Taking all of these concerns together, the Tribunal rejects the applicant’s claims that he and his wife practiced Christianity in fear, secretively; that the local police harassed them; that the police arrested, detained, mistreated and finally released the applicant upon payment of a fine; that the applicant lost his job as [Occupation 1] and his daughter faced bullying after his detention; that the police continued to monitor and harass the applicant and his family; that the applicant narrowly avoided arrest and detention in [2011] (or on a similar occasion); that the applicant left China due to his fear for his (or his family’s) safety); that the police have signalled their ongoing interest in the applicant by calling on the family home, enquiring about him, and continuing to intimidate his wife.

26. The Tribunal further finds that the applicant has no interest in Christianity; is not associated with it, in China or Australia; and is not perceived to be a Christian (including by the police in his home area). It finds that he departed China for reasons unrelated to his protection claims, and that he has no genuine fear of any harm related to these claims.

    Assessment: Refugee criterion

27. The applicant claims to fear that the local police will monitor and harass him as a Christian; that they may once again detain and physically mistreat him; and that he will be unable to safely practice his faith.

28. The Tribunal has rejected above the applicant’s claims to be a Christian, actual or perceived, and his claims that local police targeted him and his family on religious grounds. It therefore does not accept that the applicant genuinely fears that the Chinese (local) authorities will target him for any related reasons, or that there is a real chance of such harm. The applicant has not presented any other claims to fear serious harm amounting to persecution, for any other reason, and none is apparent on the material before the Tribunal.

29. In light of all the above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to China.

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

    Assessment: Complementary protection

31. The Tribunal now considers whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to China.

32. The Tribunal relies on the above findings of fact, namely that the applicant is not a Christian, or associated with that faith; that the local authorities have no adverse interest in him; and that he did not depart China in response to any other harm or threats.

33. The Tribunal finds there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm, for any reason, if he returns to China.    

1. Accordingly 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 that he will suffer significant harm: s.36(2)(aa).

   Conclusion

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

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. 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

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

   James Silva
   Member

   
   

   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 ss.5J(2)-(6) and ss.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 ss.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.