1613022 (Refugee)

[2016] AATA 4562

1613022 (Refugee) [2016] AATA 4562 (10 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613022

COUNTRY OF REFERENCE:                  China

MEMBER:Susan Pinto

DATE:10 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2016 at 10:04am

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 citizen of the People’s Republic of China from Fujian Province. He is aged in his [age range]. He arrived in Australia on a [Student] visa [in] July 2010. [In] November 2012, the applicant’s Student visa was automatically cancelled. The applicant became an unlawful non citizen until he was located by the [state] Police during a routine traffic stop [in] April 2016. The applicant was subsequently detained in [a] Detention Centre. 

2. The applicant applied to the Department of Immigration for the Protection visa [in] April 2016. The applicant claimed that he became a Tian Dao (Yi Guan Dao) practitioner in Australia in mid 2015. The applicant claims that since that time he has been involved in proselytising and practising Tian Dao. He claims that he only recently learned that the Tian Dao religion is banned in China and he then realised that as a result of his involvement in this religion he will be subject to serious harm or significant harm in China.

3. The delegate of the Minister for Immigration refused to grant the Protection visa. The delegate did not accept that the applicant is a Tian Dao practitioner or that he has attended a Tian Dao temple in [Australia] or that he has proselytised in relation to Tian Dao. The delegate found that the applicant fabricated these claims following his detention in [a] Detention Centre. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] August 2016 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

4. The Tribunal must consider whether the applicant meets the Refugee criterion which requires a consideration of whether there is a real chance that he will suffer serious harm for one of five reasons which include his race, religion, nationality, membership of a particular social group or his political opinion. If the Tribunal is not satisfied that the applicant meets the Refugee criterion, it must consider whether he meets the Complementary Protection criterion which requires that there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.

   CLAIMS AND EVIDENCE

   Compliance interview

5. At a Compliance Client interview held on [a date in] April 2016, following his detection by the [state] Police [the previous day], the applicant told the Departmental officer that he previously had a Student visa but he does not know what happened because he did not go to classes. The applicant stated, when asked why he did not return to China, that he did not want to go back. The applicant stated that it is his intention is to apply for a Protection visa. When asked why he left his country he stated that he does not like China and the Chinese food is “all fake”. When asked if there is any reason why he cannot return to China, the applicant stated that he had a fight with friends and will die there.

   Application to the Department

6. When lodging the Protection visa application to the Department indicated that he speaks, reads and writes Mandarin. He stated that his religion is Buddhist (Yi Guan Dao) and he has never been married or in a de facto relationship. The applicant stated that his occupation is ‘[occupation 1]’. The applicant stated that his parents are residing in Fujian in China. The applicant indicated that he completed his education in China in 2010. He gave no details of any education in Australia.

7. In a statement provided with the application, dated [in] April 2016, the applicant states that he was born in Fujian and he is the only child of his family. He states that he came to Australia [in] July 2010 on a [Student] visa. The applicant states that he fears persecution by the Chinese government because he is a Yi Guan Dao (Tian Dao) practitioner. He states that he was born into an ordinary peasant family, who was relatively well off. The applicant states that as the only child of the family his parents wanted him to have a good education and career. However, it was competitive to gain entry into selective high schools and he failed to receive an offer letter for university and had to undertake his senior high school in a vocational training program. The applicant states that like many teenagers who failed to enter a selective high school, his parents wanted him to study overseas and they decided to send him to Australia to study. From July 2010 to January 2011 the applicant studied a university preparation course in a school in [City 1]. However, in spite of his high attendance rate, his academic performance was not satisfactory and he was ostracised by his peers. The applicant states that he became addicted to online games in internet bars and gradually ceased attending his classes. The applicant began working for a [service] company in January 2011 and he began [occupation 1] work in November 2012. The applicant’s parents were upset when they discovered he had dropped out of school. They urged him to return to China but he made excuses not to return.

8. The applicant states that in March 2015 he met [Ms A], who is the [relative] of his workmate, [Mr A]. The applicant’s workmate calls his [relative] [Ms A]. At [Ms A’s] house there was a shrine which was kept spotlessly clean. The applicant’s parents also believe in Guan Yin (the Goddess of Mercy) and he had often seen his parents worshiping Guan Yin since he was a child. The applicant developed an “amicable” feeling towards [Ms A] and discovered that she is a devout follower of Guan Yin. [Ms A] told the applicant that she had developed [a serious medical condition] a few years ago and when she was at the “end of the tether” she came to know of the [Organisation 1] Buddhist Temple and was initiated into it. After having received the Three Treasures she kowtowed sincerely every day in front of the shrine. Thanks to the blessings of the deities her illness was miraculously under control. The [condition did not persist] and she was saved.

9. The applicant states that [Mr A] was sceptical about what [Ms A] told them, but he thought it was possible. The applicant’s parents had worshiped Guan Yin every day and when his visa was approved they said it was thanks to the blessing of Guan Yin or the Bodhisattva of Compassion. He states that at [Ms A’s] invitation he agreed to go to the [Organisation 1] temple in [Suburb 1] and found that there were people from all ages who were very nice to him. During the next six to seven weeks he went to the temple whenever there were activities. When he went to the Dharma seminar or the Vegetarian Evening Dinner, the urge for playing online games stopped and he was able to fall asleep. He shared this experience with [Ms A] and [Mr A] and [Ms A] encouraged him to receive the Dao as soon as possible so that the deities and gods would look after him. The applicant then made up his mind to formally become a Tian Dao cultivator.

10. A few days later [Ms A] notified the applicant about an initiation ceremony on [a date in] May 2015. The applicant describes the process of the initiation and states that from [that date in] May 2015 he practised Dao with other members as an official Tian Dao follower. Apart from participating in rituals, the applicant also became involved in proselytising and professing Tian Dao to others, and he voluntarily offered his help to keep the temple clean and tidy.

11. The applicant states that until he was detained by the police and sent to [a] Detention Centre he was unaware that Tian Dao was proscribed as a reactionary religious practise in China. The applicant states that three days after he was placed in custody he managed to obtain a mobile telephone and his fellow Tian Dao cultivators called him and told him that he was entitled to apply for a Protection visa on the basis of his Tian Dao religion. The applicant states that Tian Dao has been banned since 1950 and vilified by the Chinese Communist Party. He states that he had never mentioned his immigration status to anyone at the Tian Dao organisation and members of the [Organisation 1] temple seldom asked other practitioners any questions relating to their personal statements. The applicant states that is why he failed to mention his Tian Dao practice during his first interview with his case manager. He also states that when he was arrested by the police he was handcuffed and taken to the police station and he was fearful of being deported to China immediately. The applicant was also worried about his car and his belongings and when he was detained “I told them thoughtlessly that due to the fighting incident I was involved in China, I would be attacked if I was sent back. I also mentioned the poisonous food in China”. The applicant states that he did not mean to give false statements to the immigration authorities, but he just “blurted it out while I was not aware that my religious belief is outlawed in China”. The applicant states that his migration agent reminded him that he should be truthful and he should ensure that the documents associated with his previous student visa application do not have misleading or false information. The applicant states that his parents told him over the telephone that the education agent in China told him to provide someone else’s names and not his own parents names for the purposes of achieving a better outcome for his Student visa application. Therefore, the family composition information in his Student visa is not accurate.

12. The applicant states that the Chinese government will know that he is a Tian Dao practitioner because it would be impossible to conceal if he returned to China. The applicant states that “having been relentlessly brainwashed” the people in China have hard feelings against Tian Dao adherents and regard it as a reactionary religious organisation. The applicant states that his identity could be soon “debunked to the relevant department”.

13. During a telephone interview held on [a date in] May 2016, the applicant was asked by the delegate why he could not return to China. The applicant stated that Yi Guan Dao is banned in China. He stated that he did not know it was illegal until his agent told him and he then applied for a Protection visa. The applicant was advised that he would have had no reason to remain in Australia after his visa ceased in 2013. The applicant agreed but stated that he wanted to earn money to support himself and to pay back his parents who had paid for his studies.

14. Following the interview the applicant provided a photograph of a shrine which he said he keeps under his pillow for the purposes of Tian Dao cultivation.

15. In support of the application, the applicant provided statutory declarations from [Mr B], [Mr C] and [Ms A], all of whom state that the applicant is a Tian Dao cultivator who was initiated on [a date in] May 2015. They state that since that time he has been practising Tian Dao at the [Organisation 1] Buddhist temple and he is actively involved in Tian Dao activities. Copies of their Tian Dao identification cards were provided to the Department.

    Application for review

16. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

17. In response to the Tribunal’s hearing invitation, the applicant’s representative requested that an interpreter who is familiar with Yi Guan Dao be present during the hearing. The Tribunal was also advised that [Ms A] would be a witness at the hearing. A copy of [Ms A’s] statutory declaration, dated [in] April 2016, was provided to the Tribunal.

18. The applicant appeared before the Tribunal to give evidence and present arguments at a hearing which was held on 28 September 2016. The Tribunal was assisted by an interpreter who spoke Mandarin. The applicant’s representative attended the Tribunal hearing. The Tribunal was advised that [Ms A] was unavailable and could not be contacted due to illness.

19. Following the hearing, the Tribunal wrote to the applicant pursuant to s.424A. In the s.424A letter, the applicant was invited to comment or respond on information in relation to his initial evidence to the Department which indicated that he did not raise any claims to be of the Yi Guan Dao religion until sometime after his detention. The applicant was also invited to comment or respond on information indicating that the main centre for Yi Guan Dao is in Brunswick, Victoria and the website of the centre, contains no details of the Yi Guan Dao temple in [Suburb 1]. The applicant was also advised that the Tribunal could find no reference to the Yi Guan Dao temple in [Suburb 1] and the [Organisation 2] is registered at the address of [Suburb 1 address]. The applicant was also advised that during a telephone call to the [Office Bearer] of the organisation at that address in 2011 an officer of the Tribunal was told that it follows the teachings of Confucius and Lao Tze and the Dao taught there is different from I-Kuan-Tao (Yi Guan Dao).

20. In a response, received on 6 October 2016, the applicant provided a statement addressing the issues raised above. The applicant also provided a photograph with a plaque above it saying [Organisation 1] Buddhist temple; a photograph of [Suburb 1 address]; and a photograph of the inside of a temple, showing statues of the Goddess of Mercy and Buddha.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for one of five reasons or is there a real risk that the applicant will suffer significant harm if he is removed from Australia to China?

21. The Tribunal has considered the applicant’s claims to fear harm in China as a result of his involvement in Yi Guan Dao. In considering the applicant’s claims, the Tribunal has had regard to the applicant’s written and oral evidence to the Department and the Tribunal and the submissions made by the representative, and the applicant’s response to the Tribunal’s s.424A letter. Having considered all of that evidence, the Tribunal does not accept that the applicant is a Yi Guan Do practitioner or that he has had any involvement in this religion whilst he has been in Australia. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

    The applicant’s claims regarding Tian Dao/Yi Guan Dao

22. The Tribunal has considered the applicant’s evidence and claims regarding his involvement in Yi Guan Dao (which is known also as Yiguan Dao or I-Kuan Tao, Tian Dao or Tien Tao).[1] As indicated above, the applicant was detained by the Department [in] April 2016, at which time it was discovered that he had been an illegal non citizen since his Student visa ceased in November 2012. The applicant did not claim to be of the Yi Guan Dao religion when he was interviewed [the next day] during the Compliance Client interview, or that he could not return due to this reason. He instead said that he is Buddhist and did not like China or the food. He also indicated that he could not return to China due to a fight he had with friends, and he also stated that he was intending to apply for a Protection visa.

    [1] See the website.

23. The applicant has since claimed that he did not mention Yi Guan Dao during the Compliance Interview because he did not know it was illegal or viewed as anti-revolutionary in China, and on his third day in detention he received a telephone call and was advised by his sponsor and his indicator ([Ms A] and [Mr C]) that Yi Guan Dao is illegal in China. The applicant told the delegate that he contacted several migration agents and his current migration agent told him he could apply for a Protection visa because he has a Tian Dao membership card. The applicant also told the delegate that the interpreter who assisted him during the Compliance Client interview did not say that the applicant is a Tian Dao practitioner because the interpreter was unaware of the Tian Dao terminology, so the applicant told him he was a member of the Buddhist temple in [Suburb 1]. The applicant also stated that he had previously told his friends he was a Tian Dao practitioner, but they had little idea what he was saying, so to simplify matters he said that he is a Buddhist. The applicant stated that he respects the Buddha and for that reason he said he is a Buddhist. The applicant’s representative has also referred to the similarities between Buddhism and Tian Dao during the interview.

24. When asked during the hearing the basis on which he told the Department on [that date in] April 2016 that he was planning to make an application for a Protection visa, if he did not know that Tian Dao was illegal, the applicant stated that he was also worried about food poisoning in China.  The Tribunal reminded the applicant that he was asked during the Compliance interview held on [that date in] April 2016 what he wanted to do, and he had said he wanted to make an application for a Protection visa, which is before he purportedly found out that his religion is illegal. The applicant stated that he was quite scared because he had not “got rid” of his car and his electrical appliances. He also stated that was not himself and he did not know what to say and he could not think straight. He did not intend to deceive the officers, and he had heard other people talking about Protection visas. The applicant told the Tribunal that the doors of [the detention centre] opened at [opening time] and he was interviewed [a few hours later] and there were a lot of Chinese people. The applicant stated that they were discussing Protection visas, but he did not know anything about these matters. When the Tribunal queried why he would not know that persons from China have made applications for Protection visas on the basis of their religion, the applicant stated that it was only when he was detained that he found out about Protection visas. When asked by the Tribunal whether he had made any inquiries about staying in Australia lawfully following the cancellation of his Student visa in 2012, the applicant stated that he never thought about it.  The applicant stated that people were talking about Protection visas at the [Detention] centre and when the officer asked him whether he wanted to apply for a Protection visa he said yes and it was three days after he was “caught” his indicator told him that Tian Dao was illegal.

25. In response to the Tribunal’s s.424A letter, the applicant has claimed that he was transferred to [the] Detention Centre at about [time earlier than opening] in the morning of [the date in] April 2016, after he had been detained by the [state] Police [the previous day]. He states that at [opening time] he was told that he may go to the cafeteria and have breakfast. He stated that he was extremely tired and frightened and worried that he would be “repatriated straight-away”. He states that he was worried he would lose his possessions and on the way to the cafeteria he “eavesdropped on conversations of other Chinese detainees saying we are allowed to apply for the Protection visa and the Department cannot remove anyone who’s lodged a Protection visa application”. The applicant also states that he did not understand about Bridging visas and did not “appreciate the essential purposes of the Protection visa and its relevant requirements from the legal perspective”. As a result, he informed the case officer that he intended to apply for a Protection visa with the intention of securing his release from the detention centre. The applicant states that he did not deliberately attempt to deceive the Department and he did not want to be deported without disposing of his assets. The applicant also states that he was made aware by his fellow Tian Dao cultivators three days after his arrival at the detention centre that Tian Dao is branded as anti-revolutionary and declared an evil cult in the 1950s. The applicant states that he was initiated in May 2015 and “it had never occurred to me that utilizing my religious practice as a basis to seek for asylum”. He received the Dao on the third day of his “internment in [the detention centre]” and he has never studied the Buddhist philosophy in detail so he has no knowledge until the present of the fundamental differences between Buddhism and the Tian Dao faith. The applicant states that he became committed to Tian Dao cultivation for his health and other benefits.

1. The Tribunal does not accept the applicant’s various explanations for failing to disclose that he is a Tian Dao practitioner when he was interviewed [a date in] April 2016, and considers that his evidence is indicative of the fact that he fabricated these claims after he was detained by the Department following a routine traffic inspection. The Tribunal firstly does not accept that the applicant has satisfactorily explained why he would not have told the Department when he was interviewed that his religion is Tian Dao, and that he would instead state that he is Buddhist. The Tribunal accepts that there may be similarities between Tian Dao and Buddhism, and he has claimed that he observed his parents practising and worshipping in a similar manner, that he decided to become a Tian Dao practitioner. However, the Tribunal does not accept that the Mandarin speaking interpreter who assisted the Department during the interview would be unable to say “Tian Dao” or “Yi Guan Dao”. The Tribunal also does not accept that the applicant would consider that due to the similarities between Buddhism and Tian Dao that he would decide to tell the officer that he was Buddhist. The applicant has claimed that instead of simply practising Buddhism he decided to become a Tian Dao practitioner and to be initiated into the religion, and told the Tribunal during the hearing that he has never attended a Buddhist temple in [City 1]. The Tribunal does not accept in such circumstances that the applicant would believe it was appropriate to describe his religion as Buddhist, rather than Tian Dao, which he had been purportedly initiated into several months earlier. The Tribunal considers that had the applicant genuinely been involved with Tian Dao that this information would have been disclosed on [the interview date in] April 2016.

2. Importantly, the Tribunal also does not accept that the applicant has satisfactorily explained why he told the Department during the initial interview on [in] April 2016 that he was planning to apply for a Protection visa, given that he claims to have not known that Tian Dao is illegal in China until three days after his detention. The Tribunal does not accept the applicant only found out about Protection visas on that morning by “eavesdropping” on other persons. The evidence indicates that the applicant had made a conscious decision to remain in Australia to work following the cancellation of his visa, and he was aware that he did not have a lawful basis in which to remain in Australia. The Tribunal does not accept that the applicant only found out on the morning of [the interview in] April 2016 about Protection visas or that persons could apply for this type of visa on the basis of their religion. The Tribunal considers it not credible that the applicant found out about this by eavesdropping or having brief conversations with people between [opening time] and [the time of the interview] on [that date in] April 2016. The Tribunal accepts that the applicant “blurted out” that he could not return to China due to his dislike for the food and a fight and that these claims are not truthful. However, the Tribunal considers that the applicant “blurted” this out because he was planning on seeking to remain in Australia by lodging a Protection visa, but had not yet had sufficient time to manufacture claims to support an application for a Protection visa.

3. The Tribunal also does not accept the applicant’s explanation as to why he would not know that the Tian Dao religion was illegal in China until after he was detained. When asked at the hearing whether he spoke to other Yi Guan Dao practitioners about its status in China, the applicant stated that he did not talk about it. When the Tribunal queried why he would not have made inquiries about the status of the religion in China, the applicant stated that when he was young he followed his parents to the Buddhist temple to worship and [Ms A] has a picture of one of the Buddhist Gods. He felt that after choosing this belief it was good for him. The Tribunal commented that he had grown up in China and would have known that many religions in China are proscribed. The Tribunal commented that it is difficult to accept that he would become involved with this religion but not make any attempts to find out about its status in China. The applicant stated that he did not make any inquiries because he followed his parents to worship the Buddha, and Tian Dao is one of these religions and that is why he became interested in it. The applicant stated that all the followers just say “worship the Buddha” and he did not investigate. The representative interjected and submitted that the choice of religion is an “enshrined human right” and the applicant does not have to make investigations about whether it is illegal in China. The applicant’s representative also submitted that the applicant did not make any inquiries because he did not distinguish between this religion and Buddhism because they worship the same goddess of mercy, Guan Yin. They follow Buddhist principles and they revise salvation versions which are like the heart verses in Buddhism.

4. The Tribunal does not accept the applicant’s explanation or the representative’s submissions. As advised during the hearing, the Tribunal accepts that it is a human right for him to choose his own religion and has accepted that there may be similarities between Buddhism and Tian Dao, but the issue is not the choice of religion but the applicant’s knowledge as to its status in China. As discussed during the hearing, the applicant had grown up in China, where it is well known that its citizens do not have a right to choose to worship religions of their choice, apart from those recognised by the Chinese government which include Buddhism, Taoism, Islam, Catholicism and Protestantism and these organisations are required to adhere strictly to government controls.[2] Although the Tribunal acknowledges that the applicant is relatively young and was only a teenager at the time he left China, the Tribunal does not accept that he would be unaware that only certain religions which are recognised by the Chinese government are allowed in China. The Tribunal does not accept that the applicant would choose to adopt a particular religion, but give no consideration to whether that religion was allowed in China. The Tribunal does not accept that the applicant only found out when he was detained, which is several months after he purportedly adopted this religion, that it is illegal and he could apply for a Protection visa on this basis. The applicant had been in Australia unlawfully for some time and had ceased studying and was working as [an occupation 1]. The Tribunal does not accept that there would have been no discussion amongst persons within the temple or community about options for remaining in Australia or the status of the religion in China. In the Tribunal’s view, had the applicant genuinely adopted a particular religion whilst in Australia he would have had discussions with people about the Chinese government’s views on that religion, and he would then have made inquiries about how he might stay in Australia so that he could continue to practise that religion freely. The applicant did not do so and instead waited until several days after he was detained before making claims to fear harm on the basis of his religion.

   [2] For a discussion of the status of religious groups in China see the Department of Foreign Affairs and Trade Thematic Report 2015, ‘Unregistered religious organisations and other groups in the People’s Republic of China, 3 March.

5. In the Tribunal’s view, the evidence discussed above is indicative of the fact that the applicant fabricated claims in mid 2015 following his detention that he had become involved in Tian Dao in Australia. The Tribunal does not accept any of the applicant’s explanations for failing to disclose when he was detained by the Department and interviewed on [that date in] April 2016 that he is a Tian Dao practitioner. The Tribunal considers that the applicant did not disclose this information because he is not a Tian Dao practitioner and these claims were fabricated following his detention [in] April 2016.

   Delay in the lodgement of the application

6. The Tribunal also considers that the delay in the lodgement of the application for a Protection visa is further indicative of the fact that the applicant has fabricated his claims following his detention. During the Tribunal hearing, the applicant was asked about his studies in Australia. He stated that arrived in Australia on a Student visa in July 2010. He last attended classes at the end of February 2011, and he had studied in Australia for a total of approximately six months. When asked why he did not continue his studies, the applicant stated that his attendance rate was 97 per cent, which shows he was working hard, but his English was not improving. The applicant stated that he was playing video games and became depressed and although he changed to a night course he could not keep up with his studies. When asked what he did after that time, the applicant stated that he wanted to pay his parents back for his studies so he worked. When asked why he did not return to China at that time, the applicant stated that his parents had spent a lot of money. The applicant was reminded that he had stayed in Australia for several years and when asked again why he did not return to China sometime in the next five years rather than remaining in Australia, the applicant again stated that he had no citizenship or residential status and it was difficult for him to earn enough money to pay back his parents. The Tribunal queried whether his purpose of coming to Australia was to work and whether he remained in Australia for that reason after his visa was cancelled. The applicant stated that he had studied for half a year and his attendance was 97 per cent but due to the language barrier he could not follow the classes.

7. The Tribunal does not accept the applicant’s explanation for why he stayed in Australia after he ceased his studies, rather than returning to China. The Tribunal considers that his evidence indicates that whilst he may have done some studies for some six months he ceased his studies in early 2011 and remained working in Australia for another five years prior to his detention in 2016. There is no evidence to indicate that at the time of his detention the applicant had made any plans to leave Australia and he would undoubtedly have continued to remain in Australia unlawfully had he not been detected and detained in April 2016. The Tribunal does not accept that the applicant’s high attendance rate for a short period establishes that he genuinely intended to complete studies in Australia. The Tribunal considers it more likely that his purpose of his travel and stay in Australia was to work and he was prepared to do so unlawfully for several years, but when “caught” he then sought to fabricate claims for protection.

   Attendance at the [Organisation 1] temple

8. The Tribunal also considers that the applicant’s evidence regarding his attendance at the [Organisation 1] temple in [City 1] is problematic. As indicated above, the Tribunal could find no evidence of the existence of the [Organisation 1] temple in [Suburb 1]. The address provided by the applicant for the [Organisation 1] temple is[the Suburb 1 address]. The Tribunal’s inquiries have revealed that the [Organisation 2] is at [that Suburb 1 address]. Furthermore, when the applicant was interviewed by the delegate, although he claimed to have attended the temple regularly since mid 2015 and he was able to provide some information about the [Organisation 1] temple, he did not know the address of the temple. He also indicated that he did not know there was any signage on the outside of the temple, and it was only after a break in the interview that he was able to state that the temple in [Suburb 1] has [number] letters in Chinese on it saying that it is the [Organisation 1] Buddhist temple. During the interview, the representative submitted that the membership card was issued to the applicant last year and it confirms that he is a genuine practitioner.

9. When asked at the Tribunal hearing about the [Organisation 1] temple, the applicant stated that it is at [the Suburb 1 address]. The Tribunal advised the applicant that it could find no record of the [Organisation 1] Buddhist temple in [Suburb 1] and he was asked why he did not know the address of the temple when he was interviewed by the delegate. The Tribunal also advised the applicant that the [Organisation 2] is registered at that address. The representative submitted that he drove to that address and there is a property there and also a temple. The Tribunal again advised the applicant that the [Organisation 2] is registered at that address, and there is no record of the [Organisation 1] temple at that address or any other address in [City 1]. The applicant stated that the temple looks like a normal residential building and there is a sign on the front of the building saying [Organisation 1] temple. The applicant was also advised that the [Organisation 2] has previously told the Tribunal in relation to other cases that it does not teach Tian Dao at that centre. The applicant stated that [Mr D] is the cultivator. The applicant was advised by the Tribunal that membership cards can easily be produced but there is no verification that such an organisation exists or that there is a [Organisation 1] temple at the address in [Suburb 1]. The applicant stated that he went there and someone used a GPS to take him to the temple and that is why he did not know the address. The representative submitted that it is unfair to ask the applicant why it is not registered because he is an ordinary cultivator and not the owner or the director of the temple, and if the Tribunal wants evidence of the existence he should have time to provide it following the hearing. The Tribunal agreed that that further time would be provided after the hearing. The applicant was advised that the Tribunal is concerned about the existence of the organisation not his knowledge as to whether it is registered.

10. When asked during the hearing why he did not know about dharma ceremonies when he was interviewed by the delegate and he was unable to explain how he had proselytised, the applicant stated that it was “too hard” at the dharma ceremonies and could not concentrate so he often fell asleep. When the Tribunal asked if he photographs or any other evidence that he attended the [Organisation 1] temple, the applicant stated that his mobile telephone is not in the detention centre, but he might be able to obtain it and one of the text messages is from the day before he was detained from [Ms A] who sent him a message telling him about the next day’s activities.

11. In response to the Tribunal’s s.424A letter, the applicant has stated that the membership card he provided to the delegate clearly indicates that he is a Tian Dao practitioner and he was baptised and the [Organisation 1] temple recorded this in its leger. The applicant states that it is not reasonable to conclude that he fabricated this evidence. The applicant also states that in terms of the existence of the [Organisation 1] temple, it has been “sitting at [Suburb 1] for many years and conducted rituals and practiced Tian Dao for many years”. The director of the temple is [Mr D], who can be contacted on his landline number (the number was provided) and the Tribunal can verify the membership by contacting his introducer [Ms A], or [Mr D] will also confirm that the applicant is a member of the [Organisation 1] temple. The applicant states that to substantiate that he is a member of the temple situated at [the Suburb 1 address] he has asked his fellow Tian Dao adherents to take some photographs of the inside and outside of the temple which show the building and the main hall of “this sacred place”. The applicant states that to require the temple to issue a supporting letter confirming the authenticity of his membership he has to present himself in person.

12. The Tribunal has considered the applicant’s evidence in relation to the [Organisation 1] Temple, which he has claimed is at [the Suburb 1 address]. As stated above, the information obtained by the Tribunal indicates that there is no listing for the [Organisation 1] temple at [the Suburb 1 address] and the organisation at this address is the [Organisation 2]. As also indicated above, inquiries by officers of the Tribunal in 2011 indicated that Tian Dao is not taught at the [Organisation 2]. The Tribunal accepts that the temple does not have to be registered in order to establish that it exists, and acknowledges that inquiries by an officer of the Tribunal of the [Organisation 2] were undertaken some five years ago. The Tribunal also accepts that the applicant has provided a photograph of [the Suburb 1 address] with a sign on the building stating that it is the [Organisation 1] temple and the inside of a building showing a temple of some kind. The Tribunal accepts on the basis of the photographs that there is a temple by the name of [Organisation 1] at [the Suburb 1 address] that may at times practise Tian Dao. However, the Tribunal does not accept, having considered all of the evidence, that the applicant has ever had any genuine involvement with Tian Dao or that there is any evidence that the temple holds functions, “dharmas”, conducts initiations or participates in any other formal activities, as described by the applicant. The Tribunal considers that a temple which regularly conducts such activities and organises such events would have some means of the public obtaining information regarding the address and location of the temple and a means of publicising these events.  Thus, although the Tribunal is prepared to accept that there is a temple of some kind at [the Suburb 1 address], the Tribunal does not accept that it exists in a formal manner or that it participates in the type of activities described by the applicant.

13. The Tribunal has considered the applicant’s request that it contact [Ms A] and [Mr D].  The Tribunal notes that [Ms A], whom the applicant claims is his initiator, has previously provided a statement to the Tribunal, and was nominated as a witness but was unavailable on the day of the hearing. The Tribunal does not accept that it is necessary to seek further information from [Ms A]. Nor is the Tribunal satisfied that it is necessary to contact the person the applicant describes as [Mr D]. The Tribunal accepts that [Mr D] and [Ms A] will be prepared to confirm the applicant’s claimed participation in Yi Guan Dao. However, given the lack of any information indicating that the [Organisation 1] temple has a formal structure or an association, the Tribunal considers that the weight that can be given to their evidence is questionable. The Tribunal also does not accept that the assertions of persons who have written statutory declarations or the applicant’s ability to obtain some photographs of a temple or shrine overcome the Tribunal’s findings above. The persons who have written statements have attested to their involvement in Yi Guan Dao and have provided membership cards. Whilst the Tribunal is prepared to accept that they may have some involvement in a [Organisation 1] temple, there is no other independent evidence establishing their connection with Yi Guan Dao, apart from their membership cards. In any event, even if these people and [Mr D] and [Ms A] are associated with the temple, the Tribunal has found above that the several other aspects of the applicant’s claims are problematic. The Tribunal is not satisfied that any evidence that could be provided by these people could overcome the findings made above regarding various aspects of the applicant’s claims.

14. Furthermore, although the Tribunal accepts that the applicant has been in detention and his ability to provide evidence to support his application for Protection is somewhat compromised, he has been assisted by a registered migration agent and he was given additional time after the hearing to provide further evidence of his involvement in the temple, which he told the Tribunal included some text messages which were sent prior to his detention regarding events at the centre. However, no such evidence was provided and the Tribunal considers, even allowing for the applicant’s detention, that there is a dearth of independent evidence supporting the applicant’s claimed involvement in the [Organisation 1] temple. The Tribunal considers that the applicant’s lack of knowledge of the sign on the building and the address of the building when asked during the Departmental interview is indicative of the fact, combined with other problematic aspects of his evidence, that he did not at any time attend the temple.

1. As discussed during the Tribunal hearing, the applicant’s ability to obtain a membership card which states that he was inducted into the religion in mid 2015 does not in itself establish his involvement in Tian Dao. In light of the findings made above, the Tribunal is drawn to the conclusion that the applicant’s card was fabricated after he was detained in an attempt to assist him to manufacture claims for protection in Australia, and the persons who have written statutory declarations asserting that the applicant is a Tian Dao practitioner have been prepared to provide false evidence in an attempt to assist the applicant. The Tribunal does not accept that the applicant ever attended the [Organisation 1] temple or that he was ever initiated/inducted into the Tian Dao religion at the [Organisation 1] temple in [Suburb 1] or that he ever proselytised or attended any activities at the [Organisation 1] temple in [Suburb 1].

   Conclusions

2. In reaching the above conclusions, the Tribunal has had regard to the representative’s submissions during the hearing regarding the interpretation of Tian Dao terminology. The Tribunal advised the representative during the hearing that the Tribunal had been unable to obtain an interpreter who was familiar with Tian Dao terminology. The Tribunal offered to adjourn the hearing to locate an interpreter who is more familiar with Buddhist terminology. The representative advised the Tribunal that he is an accredited interpreter and the Tribunal would be unable to obtain an interpreter who would be familiar with this terminology. The representative submitted that the interpreter is interpreting other aspects of the applicant’s evidence appropriately, and he agreed that the hearing should proceed with the interpreter obtained by the Tribunal. It was agreed that although the representative could not interpret for the applicant, he could interject if necessary and alert the Tribunal to any problems due to the interpreter’s difficulties with Tian Dao terminology. No such difficulties were apparent and the Tribunal is satisfied, therefore, despite difficulties by the interpreter in interpreting concepts relating to Tian Dao, that these issues did not affect the applicant’s ability to give evidence or present arguments.

3. The Tribunal accepts that the applicant exhibited a good knowledge of Tian Dao when asked by the Department. The Tribunal does not accept that the applicant’s ability to learn aspects of Tian Dao by the time the Department interview was held several weeks after he was detained, establishes that he is a Tian Dao practitioner. In the Tribunal’s view, the problematic nature of the evidence discussed above is not due to the applicant’s knowledge or ability to express particular aspects of his religion, but the circumstances surrounding the lodgement of the application, including the considerable delay, the fact that the application was made after the applicant was detained, his failure to make any claims relating to Tian Dao when he was first detained, as well as the evidence in relation to his attendance at the temple. It is for these reasons, which are not related to the applicant’s knowledge of Tian Dao or the interpretation of Tian Dao principles, that the Tribunal has reached the conclusion that the applicant’s claims have been fabricated.

4. The Tribunal is not satisfied, having not accepted that the applicant has become a Tian Dao practitioner in Australia, that he will seek to become involved in Tian Dao upon his return to China. The Tribunal has not accepted that the applicant has been involved in Tian Dao in Australia and is not satisfied that he will be perceived as a Tian Dao practitioner or that there is a real chance he will suffer serious harm for reasons of his religion or as a result of his membership of a particular social group or for any one of the other reasons mentioned in s.5J(1)(a). The Tribunal accepts that the applicant’s parents worship some Buddhist gods and have some Buddhist beliefs, but the applicant has not claimed he will suffer harm on this basis, and the Tribunal is not satisfied that if the applicant chooses to have an association with Buddhism that any such association with Buddhism will result a real chance that he will suffer serious harm.[3] The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution.

   [3] As stated above, Buddhism is one of the five religions permitted in China.

5. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has found that there is also not a real chance that the applicant will suffer serious harm upon his return to China. In terms of the Complementary Protection provisions, the Tribunal is also not satisfied, having not accepted that the applicant has become a Tian Dao Practitioner, that the applicant will practise Tian Dao upon his return to China or that there is a real risk that the applicant will suffer significant harm for this or as a result of any association with Buddhism or for any other reason upon his return to China. The Tribunal is not satisfied, therefore, that there is a real risk that the applicant will suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if he is removed from Australia to China. Therefore, having regard to all of the evidence, 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, that there is a real risk that he will suffer significant harm.

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

7. The Tribunal also finds that the s.438 certificate on the Department file, which refers to “working documents and business affairs” and provides no other detail or reasons as to why it would not be in the public interest to disclose them, is not a valid certificate.

   DECISION

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

   Susan Pinto
   Member

   
   

   CRITERIA FOR A PROTECTION VISA

9. 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.

10. 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.

11. 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).

12. 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.  

13. 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

14. 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.

    Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)    conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)    the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)    significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)    significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …