1612524 (Refugee)

[2019] AATA 6554

1612524 (Refugee) [2019] AATA 6554 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612524

COUNTRY OF REFERENCE:                   China

MEMBER:James Silva

DATE:27 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2019 at 4:14pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Protestant Christian family – unregistered (house) church – parents’ arrested – credibility concerns – practice of faith – demonstrated knowledge and commitment – mental health condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), 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. The applicant is a woman [age] from Fujian, China. She claims to be a citizen of China.

2. The applicant first arrived in Australia [in] March 2008, as the holder of a student visa. She most recently returned [in] February 2010. On 10 September 2015, she applied for a protection (Class XA) visa, and attended an interview with a delegate of the Minister on 11 July 2016.

3. On 15 July 2016, the delegate refused the application pursuant to s.65 of the Act.

4. This is an application for review of that decision.

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

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant laws is in the attachment to this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Background

7. The applicant is a [age] year old woman from Fuqing, in Fujian province. Her languages are Chinese (Mandarin), her local dialect and reasonable English. She claims to be a Christian.

8. The applicant lived at one address in Fuqing prior to her travel to Australia in 2008. She attended primary and secondary school in Fujian, and came to Australia to continue her studies.

9. The applicant is an only child. She told the Tribunal that her father is currently living and working in Xian. According to Google Maps, Xian is some 1,700km to the north-west of Fuqing. She said that he is working for a private company in which her family has shares. She was vague about his work, except to say that he procures goods for [the] company, and provides related services. The family home in Fuqing is currently unoccupied. The applicant said she is in contact with her father by telephone and [messaging app]. The applicant’s mother passed away in 2016.

10. The applicant arrived in Australia [in] March 2008. She departed for China [in] December 2009, and returned again [in] February 2010.

11. The applicant studied in Australia, at a high school. She went on to complete [a Discipline 1] course, and she commenced but later withdrew from [a Discipline 2] course. As noted in the delegate’s decision record[1], the applicant held a [student] visa from 14 April 2011 until 24 April 2012, when it was cancelled for non-compliance. Subsequent appeals to the Migration Review Tribunal and the Federal Circuit Court were unsuccessful ([September 2013] and [February 2014], respectively).

    [1] The applicant attached a copy of this to the application for review.

12. The applicant initially held a PRC passport issued [in] 2005, valid for five years. In June 2010, she obtained a further PRC passport, valid [until] 2020. The applicant claims to have lost this passport. She presented a copy of her NSW driver’s licence and a partial photocopy of her most recent PRC passport.

13. The applicant was unforthcoming about her activities and social contacts in Australia. For instance, she initially told the Tribunal that she has been doing ‘nothing’ in recent years. Pressed for details (as these could be relevant in the context of assessing her claimed religious practice), she noted that she does not have permission to work, and therefore does some casual jobs and babysitting for friends. She said that she is living in a house in [Suburb 1], with other Chinese people, but added that she does not actually know these people. As for her living expenses and any social support, the applicant said that a former classmate from college helps her out financially and she takes on some casual work. There are also some brothers and sisters at the church who pray for her.

    Claims

14. The applicant claims to have been born into a Christian family who practiced in an unregistered (house) Protestant church in Fujian. She claims that the local authorities intimidated and harassed such churches, and punished her parents and others, including classmates who were expelled from school. Her parents practised in secret, and avoided exposing the applicant to activities that might put her at risk. Her parents were arrested at least twice, including before the applicant’s first trip to Australia, and once or twice after her most recent arrival. The applicant fears that the PRC authorities will persecute or significantly harm her if she returns to China, due to her commitment to her house church and her wish to follow her mother’s footsteps and spread the gospel. She would otherwise be forced to refrain from religious practice, in order to avoid such harm.

15. The applicant also claims that the PRC Consulate General was abusive when she told them that she was applying for protection on religious grounds; she implied that this could add to the risks she faces if she returns to China.

    Evidence

16. The evidence before the Tribunal includes the following:

    §The applicant’s protection visa application of 10 September 2015, attached to which is a statement of her protection claims, in Chinese with English translation.

    §Partial photocopies (biodata pages only) of the applicant’s first PRC passport, issued [in] 2005, and her current passport, issued [in] 2010 and valid [until] 2020. The applicant claims to have lost this passport.

    §Audio recording of the protection visa interview (‘Department interview’) held on 11 July 2016, which the Tribunal has listened to.

    §Delegate’s decision record of 15 July 2016.

    §The applicant’s review application form received on 11 August 2016, attached to which is a copy of the delegate’s decision record.

    §Country information as referred to in the delegate’s decision record, and other material referred to at the hearing and in this decision record. The Tribunal has had regard to the most recent Department of Foreign Affairs and Trade’s (DFAT) Country Report on China, dated 21 December 2017.

17. The applicant attended a Tribunal hearing on 23 August 2019. The hearing was conducted with the assistance of an interpreter in the Chinese (Mandarin) and English languages. The applicant is unrepresented in this matter. She did not submit any further documentation or request the Tribunal to take evidence from witnesses.

18. The Tribunal obtained a copy of a Psychological Assessment Report for the applicant, dated 2012, and drew on the decision of the (then) Migration Review Tribunal in case [number], in which the applicant unsuccessfully sought revocation of the automatic cancellation of her student visa. The Tribunal put relevant information – concerning the applicant’s personal circumstances at the time her student visa was cancelled, and the reasons why she believed the visa should not be cancelled – to the applicant pursuant to the procedure in s.424AA of the Act.

    Credibility

19. 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.

20. The Tribunal has significant concerns about the applicant’s credibility. It found much of her evidence vague, unsubstantiated and inconsistent. The applicant did not appear to engage with the discussion on her (claimed) religious adherence and practice, or contemplate what supporting evidence might be available. 

21. The applicant drew attention to several factors that could potentially be relevant to an assessment of her credibility, particularly from a mental health perspective.

    §  At hearing, she referred to her fragile psychological state at several points. She linked this with various incidents, such as her uncertain migration status in Australia and efforts to resolve it, and an abusive relationship with a young man in Australia. The applicant alluded to her stress in particular when asked about inconsistencies in her written and oral evidence, and when explaining her staying in Australia without a visa for over a year, during 2014 and 2015. She also said that she felt nervous at points of the hearing, for instance, when she appeared to confuse Christmas and Easter.

    §  In relation to her social contacts at church, and in particular whether any church personnel could vouch for her attendance, the applicant also spoke of ‘low self-esteem’, feelings of sadness if she saw other people, and being afraid (particularly if she were to face deportation, and the possible consequences of her actions in Australia).

    §  The applicant also said that she had been unwell for some three or four months last year. She felt dejected, and began to lose her faith. However, she said that a friend encouraged her to pray, and her health condition then improved.

22. The Tribunal asked the applicant whether she had sought any medical assistance, or whether anyone (such as at the church) could confirm her health status. She replied that she does not have a Medicare card (and, by implication, could not afford medical treatment). She did not directly address the Tribunal’s questions about other assistance, except to say that she tries to be self-reliant and draw strength from religious materials, such as a video and books.

23. In the Tribunal’s view, the applicant was guarded and deflective in much of her evidence. She showed no real effort in trying to substantiate her protection claims, for instance, by providing further details or inviting the Tribunal to speak to witnesses. The Tribunal acknowledges that the applicant’s migration status in Australia may have been one factor in her caution, for example, if she is working without permission (as she was unforthcoming about her activities and income). However, the Tribunal is of the view that her unforthcoming, guarded evidence goes beyond such matters. In its view, it undermines her credibility as a whole.

24. The applicant was understandably upset when mentioning her mother’s death in [2016]. At the Department interview (although not at the Tribunal hearing), she said that she was unable to return for the funeral, implicitly because it was unsafe for her to do so. The Tribunal accepts that the applicant may have wished to return to China at that time. However, it places minimal weight on this as evidence to support her protection claims (that is, her fear of returning to China), as she has not been frank about her personal circumstances as a whole.

    Christian faith

25. The applicant claims to fear persecution as a member of an underground Christian church in China. She told the Tribunal that she would not know ‘how to survive’ without her faith. In other evidence, however, she said that her Christian faith has sometimes wavered in recent years, particularly as she has dealt with bouts of depression.

    Practice in China

26. The applicant claims to have been born into a Christian family in Fujian, and to have accompanied her parents to their house (underground) church from an early age. She was baptised at the age of [age]. The applicant told the Tribunal that she does not have much recollection from this early period, and does not have a baptism certificate. She said that a group of some 30 or so people used to gather in each other’s homes.

27. The applicant claimed that, following their arrest when she was young, her parents seldom took her to house church activities. Instead, her mother used to tell her about the faith, and the applicant used to read the Bible at home.

28. By way of general background, the Department of Foreign Affairs and Trade (DFAT) noted in its most recent country information report[2] that official Chinese government statistics record about 100 million religious believers in total, including over 23 million Protestants. DFAT estimates the number of people in unregistered Protestant Christian organisations alone to be some 70 to 100 million. In Fujian province, DFAT assesses that large numbers of Protestants worship in places linked to the official Three-Self Patriotic Movement (TSPM). It notes one estimate that in 2011, 1.57 million Protestants worshipped in unregistered churches.[3] All of this provides some context and potential support for the applicant’s claim that her family are Christians.

    Practice in Australia

    [2] DFAT, Country Information Report – China, 21 December 2017, paras 3.16-3.17.

    [3] DFAT, Thematic Report on Fujian Province, 16 December 2016, quoting figures from Asia Harvest: see para. 3.11

29. The applicant told the Tribunal that she attends a church in [Suburb 2], infrequently. She has a Bible, several books from the church and a video, and she prays for a friend. Against a background of the applicant’s earlier reticence about her personal circumstances in Sydney, the Tribunal found it difficult to elicit meaningful information or supporting about her religious practice since arriving in Australia in early 2008.

    §  The applicant claimed that she attends a [service] in [Suburb 2] at 11am on Sunday mornings, although she does with declining frequency (perhaps once a month). She explained that she feels depressed, and wants to be alone.

    -   She explained that she has several options for transport there. Sometimes, she leaves home at around 8:30am, and goes to an assembly point in nearby [Suburb 3], where the church provides transport. On other occasions, she travels by bus, which takes a long time, as it goes to the assembly point via [Suburb 4] on Sundays.

    -   The applicant says that she attends the services, and sometimes stays behind to have a meal and help clean up.

    -   In response to the Tribunal’s questions, the applicant gave the name of a church friend who she contacts regarding transport. Asked whether he could confirm her attendance, she declined to provide his details, saying she does not wish to bother him.

    -   The applicant said that she sometimes also goes to a family group at the church on Friday nights.

    §  The applicant replied briefly that she has no documentation, photographs or other corroborative evidence to show her involvement in the church. Asked whether fellow practitioners might have such evidence, she said that she worries that such material could put her in danger if she is deported to China, but she did not directly state whether she thought they might have some record of her involvement in the church.

    §  Asked to name any pastor or other church personnel who can vouch for her personally, the applicant said that an aunt named ‘[Ms A]’ had been helping her when she was staying at home, depressed. However, the applicant no longer contacts her. She said that she is ‘afraid’ of other people.  

    §  Asked about any material or financial support from the church, the applicant replied that an ‘aunty’ there prays for her. Another friend, a former classmate from college, gives her some financial support.

30. The Tribunal noted the applicant’s claim that her mother had been a ‘secret preacher’ for more than a decade, and that her mother’s strength of character during her illness inspired the applicant to ‘serve the church, preach the gospel and read prayers every day’. The applicant had gone on to claim that she had preached the gospel since arriving in Australia, and had resolved to ‘not give up [her] preaching mission’. Asked at hearing what this means in practice, the applicant initially said that she has been unwell for much of the past year. As for her preaching, she said that a friend in Australia had fallen pregnant, and had a child with Down Syndrome. The applicant had helped her friend though this difficult period. Although the friend was not Christian, the applicant prayed together with her, and the baby is now healthier. The applicant implied that she had encouraged her friend to turn to Christianity. When asked if her friend could verify this claim, the applicant said that she did not want to make her sad by reminding her of these trials. The upshot is that it is far from clear whether the applicant supported her friend with a Christian message, let alone converted her. In the Tribunal’s view, even at face value, this account is far removed from the applicant’s claim that she is committed to serve the church and has preached the gospel in Australia.

31. As noted above, the applicant gave minimal information about her activities, living arrangements, social circles and her health in Australia. Even after making some allowance for such reticence, the Tribunal finds her demonstrated interest in and participation in church or other religious activities are negligible. It accepts that she has gone to [Church 1] on a few occasions, for a Sunday service and perhaps associated social activities. But it does not accept that her active involvement extends beyond this.

    Knowledge and demonstrated commitment

32. The Tribunal explored with the applicant her knowledge of and commitment to Christianity, given that even some sincere Christians are not regular churchgoers. It took into account her claim to have been born into a Christian family; that she has studied the Bible extensively (in China and Australia), and that she has spent more than ten years in Australia, where there are well-established Chinese Christian communities and the availability of religious materials. It also took into account the circumstances that she described in China and Australia which – if true – might have influenced her exposure to certain teachings and practices. These included the (claimed) local oppression of the house churches in her local area, and the personal inhibitions she claims to have had in mixing with Chinese Christians.

33. The applicant indicated that she has studied the Bible in Australia, and she named several texts and a video that appear to be introductions to Christian teachings. If her claimed involvement with religious activities in Australia and/or China were true, one would expect some degree of personal observation or familiarity with the teachings and principles.

34. During the hearing, the applicant mentioned various Christian concepts and snippets of information, such as ‘Holy Community’, Christ’s crucifixion and the resurrection; the names of Christmas and Easter; and the role of the congregation to ‘pray and repent’ (a phrase, or its equivalent, that she used several times). However, her evidence overall was piecemeal, uncertain and, in the Tribunal’s view, not drawn from personal religious practice or long-term familiarity. For instance, she did not know the words of the ‘Lord’s Prayer’.[4] She initially thought Christmas was to commemorate the death of Jesus, although she then corrected herself to say that he died at Easter, on 14 April each year, and he is resurrected on 17 April. She vaguely recalled having gone to a party before Christmas, many years ago, but commented that the people in her church in Australia do not celebrate Christmas.

    [4] The Tribunal prompted the applicant with the words ‘Our Father’, and invited her to write the subsequent lines in Chinese. The words she wrote did not correspond to the Mandarin language text that appears on-line (in various websites) or, when read out, to the textual meaning of the Lord’s Prayer, in English or Chinese.

1. The Tribunal finds the applicant’s familiarity with basic Christian concepts, and her own personal practice, to be inconsistent with her claim to be a genuine Christian, and a person born into a Christian family. It does not accept that her limited knowledge is the product of any genuine religious practice, including in a home setting in China or through private observance in Australia. It does not accept that she is Christian, or that she would be perceived to be such, in Australia or China.

   Mistreatment of Christians in Fujian

2. The Tribunal’s finding that the applicant is not a Christian, actual or perceived, casts strong doubt on her claims of past harm, and her credibility as a whole.

   Problems before 2008

3. The applicant wrote in her protection visa application that the local authorities refused to recognise her family’s house church, so they had to go ‘underground’. Just before her first visit to Australia, the authorities arrested and fined her parents. More generally, the authorities put her family’s church and similar ones under great pressure. For instance, the middle school that the applicant attended expelled some students who went to house churches in defiance of the ban. The applicant’s parents then decided not to allow her allow her to attend any house churches.

4. At hearing, the applicant said that when she was young, perhaps in elementary school, the authorities (probably the police) arrested her parents. They put her father in jail, and assaulted her mother, injuring her head. The applicant’s mother ended up in hospital, and suffered headaches for many years after that. Relatives looked after the applicant during this period. The applicant said that she did not have further details of the incident, due to the passage of time. However, her parents stopped taking the applicant to the house churches, for her protection. She confirmed that she did not experience any problems at school, but recalled that some classmates were expelled.

5. Asked about the discrepancy in her written application, where she had claimed that the authorities arrested and fined her parents ‘just before [she] went abroad’; and her oral evidence about an arrest many years earlier, the applicant restated that the authorities arrested her parents while she was still young. She added that the authorities fined her parents RMB 8,000 on the second occasion, in 2014 (that is, after her second trip to Australia). She said that she was feeling confused.

6. Asked whether she had thought about applying for protection on her first visit to Australia, given her claims of general religious intolerance in her local area, the applicant said that she did not know about the availability of protection at that time.

7. Assessment: The applicant describes events that allegedly took place in Fujian more than ten years ago, in circumstances in which her parents may well have tried to shelter her from the reality on the ground. Also, some of the incidents – such as the alleged expulsion from school of classmates from religious families – did not involve the applicant directly, although, if true, they may have had a chilling effect on her and her family. Even so, the applicant had just turned [age] when she first arrived in Australia. The Tribunal considers the inconsistency as to when the authorities arrested and mistreated her parents – when she was young, or just prior to her departure for Australia - and when relatives stepped in to look after her, to be of concern. This reinforces the Tribunal’s doubts about the truthfulness of the applicant’s claims.

   Issues during the applicant’s visit to China in 2009/2010

8. The applicant wrote in her protection visa application that during her return visit to China in late 2009 and early 2010, she was shocked to learn that the security police arrested a former classmate who had attended an underground church. At hearing, she confirmed that nothing happened to her personally during her return visit, but that some people in her area were arrested. She described this as a ‘big trauma’ for her. Country information indicates that official attitudes to unregistered churches vary widely, according to the locality. The applicant’s claimed experiences in China, prior to her travel to Australia and on her return visit to China in late 2009, shed little light on actual conditions in her local area. They do, however, suggest that the local authorities had no adverse interest in her personally.

   Developments after the applicant’s return to Australia in 2010

9. The applicant wrote in her statement of claims that she was always concerned about her fellow adherents in China, and she kept in touch with them. She has produced no persuasive evidence to demonstrate that she has been concerned about the welfare of Christians in her home area (other than her family), or has any contact with them. The Tribunal does not accept that she had any such interest or concerns.

10. Arrest of her parents: The applicant’s written statement reads (in translation): ‘Because my parents had taken part in all the protests in defending their house churches and their crosses, they had been arrested twice and fined RMB 8,000 since 2015.’ Some ‘countrymen’ were also arrested. In this context, the applicant referred to the PRC government’s clampdown on unauthorised churches since 2014, and the arrests of other Chinese, including people returning there from abroad. As noted in the delegate’s decision record,[5] at the Department interview, she confirmed her claim that her mother continued to preach the gospel, and that her parents were arrested twice, in 2014 or 2015.

    [5] The applicant submitted a copy of this with her application for review.

11. At the Tribunal hearing, the applicant claimed that, after she returned to Australia in early 2010, the police arrested her parents just once, around Chinese New Year in 2014 or 2015. She said that her parents had been protesting to allow the use of the cross, and many people were arrested. They suffered ‘severe persecution’ while in custody. The applicant thought that her parents might have been held for a few days, but was not sure. She explained that her mother had been ill, and her parents were reluctant to discuss this incident with her. She believed that they had to pay money for their release.

12. The Tribunal put to the applicant that, in her written statement of claims, her parents had been arrested twice after her return to Australia. In response, the applicant said that there was a total of two arrests – once when she was young, and the second one after her return to Australia. To ensure there had been no translating error, the Tribunal asked the applicant to read aloud paragraph 6 of her original statement in Chinese. Through the interpreter, the Tribunal confirmed that her statement mentioned two arrests since 2015. In reply, the applicant said that she dictated her statement through a friend, very clearly. She did not recognise the text before the Tribunal as her own statement.   

13. Official actions against the applicant’s parents form a central part of her protection claims, and their arrest is by any measure a significant event. The Tribunal is not satisfied that the applicant’s inconsistent evidence as to whether they were arrested once or twice since her return to Australia can be explained by any translation errors or similar misunderstandings. In its view, her inconsistent evidence reinforces its concerns that her claims – including claims of past harm directed towards her parents – are untruthful.

    Fears of returning to China

14. The applicant referred to the PRC Government’s clampdown on unauthorised religious groups since 2014, as well as her family’s own experiences (which the Tribunal has rejected above), as the reasons for her inability to return to China.

15. The Tribunal put to the applicant, pursuant to the procedure in s.424AA of the Act, that in 2012, she had raised a number of issues as to why her student visa should not be cancelled. These included an illness, feelings of homesickness, social isolation and the breakup of a relationship that she had had during her return visit to China. There was no mention of her Christian faith, or the pressures that local authorities exerted on members of her underground church. The applicant opted to comment/respond to this information orally, on the spot. She said that she had not understood the law of Australia, and she was afraid of mentioning her Christian faith, in case it caused ‘unnecessary trouble’. The Tribunal finds this unpersuasive. As the applicant would have been aware, the cancellation of her student visa could have resulted in her return to China. Even though this pre-dated the (now-rejected) arrest of her parents in 2014 or 2015, the Tribunal consider it significant that she did not mention her Christian faith and any concerns about her ability to practice in China, when given the opportunity to do so.

    Findings

16. The Tribunal does not accept that the applicant grew up in a Christian family in China; that she was baptised; that she and family members practiced in a house church; or that her mother was a preacher. The Tribunal does not accept that the applicant identifies as a Christian, that she has worshipped in [Church 1] in Sydney; or that she has engaged in any other activities (such as praying privately or encouraging compatriots to embrace Christianity). The Tribunal accepts that the applicant may know some Christians in China, such as classmates or neighbours. It also accepts that she may have attended the [Suburb 2] church on one or more occasions; and that she may have obtained a Bible, other Christian books and a video. The Tribunal finds that the applicant has done so in order to learn about Christianity and thereby bolster her protection claims; as well as participate in social gatherings after church service. It finds that these activities are minimal, and it places no weight on them as evidence that she has any genuine commitment to Christianity, past, present or future.

17. The Tribunal does not accept that the local authorities harassed, arrested or mistreated the applicant’s parents, at any time; that this meant that the applicant could not participate in house church gatherings or other religious activities; or that the applicant fears for her safety for any related reason. The Tribunal accepts, on the basis that it is plausible, that the applicant may know of instances where the local authorities have caused problems for classmates or neighbours, but it finds that this has no direct bearing on the applicant or her family, as they are not Christians, or perceived as such.

18. The Tribunal finds that the applicant has no genuine fear of returning to China for any related reason. 

    Conduct of the PRC Consulate General in Sydney

19. The applicant told the Tribunal that, when she went to the PRC Consulate General in Sydney to renew her lost passport (the one issued in [2010]), they were disrespectful and abusive towards her. She claimed that she lodged an application for a new passport, but never received it. She said that she did not think to keep a copy of the application form.

20. The applicant went on to say that the passport replacement application required her to indicate her visa status, including whether she has applied for protection. She presented the completed form at a window at the PRC Consulate General, and showed the consular officer her Australian bridging visa. She claimed that she also told the official that she had applied for protection on the grounds of religion. This person expressed surprise. He or she then started to give the applicant ‘a hard time’, and announced loudly that she has psychological issues, to embarrass her.

21. This claim raises several questions. First, it appears odd that the applicant approached the PRC authorities without (as she stated at hearing) first seeking a police report. Second, as the Tribunal noted at hearing, it cannot assess the behaviour of front desk staff at the PRC Consulate General; whether they were rude the applicant, as a known or suspected asylum seeker; and whether any such conduct signals a broader adverse interest in asylum seekers. However, given its adverse view of the applicant’s credibility, the Tribunal does not accept that the applicant has given a truthful account of what happened at the Consulate General. In particular, it rejects her claim that she told them that she had sought protection on religious grounds, in response to the consular official’s enquiry.

22. The Tribunal also noted that many PRC nationals visit Australia, for various reasons and periods of time; that some need to replace lost or damaged passports; that some of these may also have been in Australia on bridging visas or without any valid visa; and that at face value, it seems unremarkable that a consular authority would enquire about the person’s migration status (for instance, to determine whether it is appropriate to issue a full passport or a limited travel document). The Tribunal accepts that PRC consular officials may assume or even come to know that certain nationals have applied for protection in Australia.

23. On the limited available information, the Tribunal is prepared to accept that PRC consular officials have come to know or assume that the applicant has sought protection in Australia, and that they were curt in their dealings with her. The Tribunal does not accept that PRC officials know the basis for the applicant seeking protection, or that they refused to issue her with a PRC travel document.   

    ASSESSMENT: REFUGEE CRITERION

24. The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1). The Tribunal takes into account the findings above, its assessment of her future conduct in China and relevant country information. At hearing, it was apparent that the applicant had not given much thought to her prospects on return to China. She thought that her father would probably return from Xian to join her in Fujian.

25. In light of the above findings of fact, the Tribunal does not accept that the applicant is a genuine Christian (in a house church or any other); that the PRC authorities perceive of her as being an underground Christian (due to her family connections, or any other reason); or that she genuinely fears serious harm for any reason associated with religion, or other s.5J(1) reason. Similarly, the Tribunal does not accept that the applicant has any adverse profile, due to any family connections or past incidents.

26. The Tribunal does not accept that the applicant engages in any personal or communal religious practice, or that she is a preacher. The Tribunal accepts that she has visited an Australian church on one or more occasion, and that she may have some Christian materials at home. While it considers that she mainly did this to bolster her protection claims, it is also possible that she participated in one or more of the meals after church, for social or material reasons. As such, this conduct does not fall within the scope of s.5J(6), and the Tribunal is therefore not required to disregard it when assessing whether she has a well-founded fear of persecution. The Tribunal finds these activities are negligible. The Tribunal finds there is no real chance that the PRC authorities will become aware of, or have any interest in, these activities. 

27. In light of these findings, the Tribunal concludes that the applicant will not be motivated to engage in any religious practice in China. It finds there is no real chance of the local or PRC authorities targeting the applicant if she returns to China, for any reason linked with a past profile, or ongoing practice. It follows that there is also no real chance that the applicant would have to refrain from any religious practice, in order to avoid persecution.

28. The Tribunal accepts that the PRC authorities – including the Consulate General in Sydney, and authorities on the applicant’s return to China – may assume or know that she has applied for protection in Australia. However, the applicant has no prior or current adverse profile, and the Tribunal does not accept that PRC officials (including at the Consulate General) know of the grounds on which the applicant has applied for protection, or have any motivation to investigate this. As discussed at hearing, a large number of PRC nationals visit Australia and ultimately end up seeking protection. The Tribunal drew on DFAT’s most recent comments that they have ‘no information to suggest authorities target individuals solely for having sought asylum abroad if they have not otherwise come to the adverse attention’.[6] The Tribunal appreciates the need for caution in interpreting such comments, in particular, the absence of information and/or Australian officials’ lack of awareness. However, given the large numbers of protection visa applicants from China, the Tribunal expects that reports would come to light if there were instances of the PRC authorities targeting them for that reason alone. Even allowing for the possibility that PRC officials may have been brusque in their dealings with the applicant, the Tribunal finds that there is no real chance of the applicant being denied an appropriate travel document in the future, or of facing serious harm amounting to persecution on her return to China, as a result of her having sought protection in Australia.

    [6] DFAT, Country Information Report – China, 21 December 2017, paras 5.18.

29. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds she does not face a real chance of serious harm amounting to persecution for reason of religion (actual or imputed involved in an unregistered church), her having sought asylum in Australia (and any putative particular social group, or imputed political opinion linked with that), of for any of the reason set out in s.5J(1), now or in the reasonably foreseeable future.

30. The Tribunal is therefore 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 has considered whether on the evidence before it, that 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’s findings of fact above and its consideration of the applicant’s other circumstances (such as her dealings with the PRC authorities and her claimed psychological pressures), lead it to conclude that no one has an adverse interest in the applicant, with the aim of inflicting significant harm on her. Her circumstances do not suggest that there is a real risk that she 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 inflicted on her, 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. The Tribunal is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. 

33. 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 she will suffer significant harm: s.36(2)(aa).

    Conclusion

34. 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).

35. 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).

36. 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.

   James Silva
   Member

   
   

   ATTACHMENT – RELEVANT LAW

2. 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.

3. 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.

4. 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 themselves 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).

5. 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.  

6. 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

7. 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.