1615144 (REFUGEE) - [2019] AATA 6808

1615144 (REFUGEE) [2019] AATA 6808 (8 OCTOBER 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615144
COUNTRY OF REFERENCE:                   China
MEMBER:Christine Cody
DATE:8 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 October 2019 at 9:52am
CATCHWORDS
REFUGEE – protection visa – China – Religion – involvement in unauthorised church – social group – participation against local government – assisted in petition against government – fraudulent documents – inconsistent evidence – credibility concerns – use of false passport to support application – limited ability to discuss religious beliefs – not a genuine Christian – engaged in religious activities to strengthen claim – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 36, 65, 91WA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of China, applied for the visa on 28 July 2015. The applicant was represented in relation to his applications before the Department and the Tribunal by his registered migration agent. The relevant law is set out in Annexure A.
Migration/immigration history
The applicant arrived in Australia [in] May 2015 on an FA 600 tourist visa, valid until 17 August 2015. The applicant applied for a protection visa on 28 July 2015, and was granted a bridging visa on 31 July 2015. His passport was issued on [2010].[1]
[1] Source: the applicant’s documents and the delegate’s decision record.
The Department
The Departmental file contains various documents including the protection visa application forms, a Form 80 (Personal Particulars), a detailed four-page written statement setting out the applicant’s claims for protection, a cover letter from the applicant’s migration agent dated 27 July 2015, a copy of the applicant’s passport, the original and translation of a letter dated 22 August 2015 regarding activities in Australia, a copy of the visitor visa grant verification, two untranslated documents,[2] a recording of the Departmental interview, and a copy of the delegate’s decision record. Other documents are referred to below.
[2] Translations were provided to the Tribunal after the hearing.
According to the protection visa application forms, the applicant’s background and claims can be summarised as follows:
·     The applicant was born on [date] in Fujian Province. He lists a single address in [a] Village in Longtian, Fuqing, Fujian Province, China, where he states that he resided from birth until May 2015.
·     The applicant speaks, reads, and writes Mandarin and also speaks the Fuqing dialect. He is a Christian of Han ethnicity.
·     The applicant completed secondary school in July [year]. The applicant worked [in an occupation] for [Business 1] from September 1999 to June 2014 [his main employment]. The applicant then worked casually at various places from June 2014 to May 2015.
·     The applicant married [in] September 2008 in Fuqing. The applicant’s father, mother, sister, wife, son (born [year]), and daughter (born [year]) all live in China. The applicant’s brother lives in Australia.
·     His parents are devout Christians. When the applicant was young, his father was addicted to smoking, drinking, and swearing. However, since becoming a Christian, his bad habits improved, as did his relationship with the applicant’s mother and family.
·     The applicant would attend church on Sundays with his mother. He did not know much about Christianity but enjoyed going. The applicant also occasionally attended fellowship gatherings with his mother at other people’s homes. At the gatherings, they listened to Bible stories and sang hymns.
·     He continued to worship God and he became a Christian when he grew up. In 2008 [age [age] years], the applicant was married; as a result of God’s calling, he set up his own family church with several other young Christians. The congregation grew fast, from 10 people at the start, to about 80 regular members within 6 months. The group was mostly young people aged between 18 and 25, although visitors came as well.
·     The church had an executive committee, which organised church activities and budgeted for the church. The committee members, including the applicant, funded the church from their own pockets. The church usually met on Saturdays at the home of ([Person A]).
·     The applicant’s village is situated [in a location], and each household is allocated a piece of [farm] [for] growing [products]. There are [number] households, and the villagers rely on [industry]. In 2002, the [Location 1] Government signed an 18-year joint venture agreement with [a company] for redeveloping the [farms in the area]. The agreement, set to expire in 2020, stated that the government would temporarily take back the [farms] for the business. The government would distribute some of the profits back to the villagers, and would return the farms in 2020.
·     Construction for the project began in 2002, and finished in 2004. Although the company [deleted], the government never paid the villagers.
·     At the end of 2013, the applicant and other young men helped the villagers to write a petition, and also signed it.
·     In early 2014, [Official 1] told the applicant to stop the villagers, or else he would cause trouble for the applicant and his family, since the applicant had caused people to rebel against the government.
·     A government official approached [Business 1] at which the applicant worked and warned the manager not to employ the applicant, so the manager asked the applicant to resign. The applicant could not find another [permanent] job since prospective employers informed the applicant that they did not want trouble; so he could only do odd jobs.
·     Around March 2014, after the Chinese New Year, [Official 1] visited the applicant and tried to give the applicant [amount] yuan. The applicant refused. The [Official 1] said the applicant must tell the villagers to stop, and this was his last chance. He also threatened that he knew the applicant was running an unauthorised church and he could be in great trouble because of this.
·     On a Saturday evening in the middle of 2014 (mid-June 2014 according to the agent’s accompanying letter), public security officers raided a church gathering. The officers told the Christians to end their gathering and go home. The next day, [Official 1] called the applicant and said that if the applicant did not help the government and tell the villagers to be quiet then the applicant would be in trouble.
·     On Christmas Day 2014, the applicant’s church held a gathering at his grandmother’s home. Security officers arrived and took the attendees’ details, and said that the gathering was illegal. They ordered everyone to return home, and arrested the applicant and [Person A]. They were kept for 2 days in a cell before being released.
·     While the applicant was imprisoned, he received a call from [Official 1], asking if he had changed his mind. The applicant said no. [Official 1] said that he would get him released this time but threatened that the applicant would be formally charged and sent to gaol if he continued to attend unauthorised gatherings. The police told him to dissolve the church and to tell the members to attend a Three-Self Government church. The applicant says that the Three-Self Church is not a real church; it is government window dressing under the pressure of the international community.
·     Upon release, [Person A] informed the applicant that as their church was not registered, they could be imprisoned for continuing it, though he felt that the applicant was the target of the raid. The church committee decided not to dissolve the church, but to change the location of worship.
·     The applicant believed that he has now become a target of the local authority for his involvement in the villagers’ seeking their rights, and his involvement in being a Christian and organiser of a non-governmental family church. He can be arrested at any time and his situation is dangerous. He decided to come to Australia. He recalled that his brother had told him that Australia is a democratic country where people enjoy freedom of speech and freedom of religion. He thought of Australia but did not know how to apply for a visa; so a church member helped him to apply for a visa. [The agent’s cover letter stated that as the fear of imminent danger of being arrested and gaoled mounted and increased, he decided to seek help and he was assisted to apply for an Australian visa by a church member.]
·     The applicant was unemployed at the date of signing his application. Since he came to Australia he has been attending Sunday worship at [Church 1] in [a suburb]. He also participated in fellowship meetings held at a member’s home. He continues to worship the Lord in Australia without fear.
·     The applicant is in contact with his relatives by phone and ‘Weixin’.
·     The applicant fears that if he returns to China, he will be imprisoned due to religious suppression and persecution by corrupt government officials. The applicant cannot seek protection as he has been persecuted by the government, and cannot relocate because the cost of living is high, he cannot obtain a job or reasonable costs of accommodation, hospitalisation, and education due to the hukou system in China.
The offshore visitor visa application
The Departmental file relating to the protection visa application also contains a copy of the applicant’s FA 600 visa application. Details in his visitor visa application dated 27 April 2015 are different to those contained in his protection visa application form. For example in this form he states that he was born in Hangzhou City, Zhejiang Province, China. The applicant states his address as being in Hangzhou City, and that he works [in Occupation 1] for [Employer 1]. He also lists that his father, mother, brother, wife, and son all live in China. The applicant does not list a daughter or sister [and there is no reference to a brother in Australia]. The names and dates of birth for each family member differ from those listed in the protection visa application.
The offshore application stated that the applicant intended to attend [Exhibition 1], and included a letter from [Exhibition 1] dated [2015] inviting the applicant to their 2015 fair, account statements, and a letter from [Employer 1] dated [2015] certifying that the applicant is an employee of the company and will attend the Fair for about one week. Also included with the application was a copy of a passport in the applicant’s name [this passport however contained different details to those relied upon by the applicant in his protection visa proceedings, despite the date of issue being identical]. Relevant information was put to the applicant pursuant to s.424AA of the Act as discussed below.
Other aspects of these documents are discussed further below.
The delegate’s interview and decision record
The applicant attended a protection visa interview on 30 August 2016. He was asked about his religious and political claims, country information was discussed, and the delegate asked about discrepancies in his evidence, as well as concerns relating to his offshore visitor visa application and supporting documents. All references to discussions at the interview with the delegate are sourced from the delegate’s decision record (including in the bullet points below) provided to the Tribunal by the applicant unless otherwise stated:
·     The church he attended in China was not a secret church; he attended this church from age [age] years, until he was married in 2008. When the delegate put to him that he attended the church without suffering any persecution from the authorities for approximately [number] years, he responded by saying that he was persecuted. The delegate noted his written claims made no mention of persecution until 2014; he responded by saying that he was young and “the Bible needed to be registered”. Later he said: “Patriotic church needed to be registered” [which did not appear to make sense as the Patriotic Church is part of the governmental registered church system[3]]. The delegate noted that the applicant could not give any examples of being harassed before 2008.
·     When it was put to the applicant that he always lived with his parents, so how could he say that he set up his own family gathering, he said that he set it up with a friend and the gatherings occurred at the friend’s place. He stated there were no meetings on Sunday then changed his evidence to say there were services on Sunday at his friend’s home. When the delegate noted that his written claims indicated that the church meetings occurred on Saturdays and Thursdays, he still maintained that there were Sunday services.
·     The delegate put to the applicant that it was difficult to accept that a village of [number] people survived for 11 years after their main source of income was taken away; the applicant’s initial response was that some people had casual jobs and some people planted [produce] on the mountain; the delegate said that his written claims were that the villagers relied upon the growing of [produce] for their livelihood. The applicant then said that [instead of all the land being taken from the villagers] the government gave the company [amount] out of every [amount] of land to [farm].
·     The delegate asked the applicant why, if 400-500 people signed the petition, would the [Official 1] come after him, as he was just another person signing a petition. He said that he was contacted because several leaders in the church had signed the petition. When asked why [Official 1] would think that he would have any influence over the villagers given that his employment history indicated that he had never worked in [Location 1] or derived any income from a [farm] and was instead employed [in Business 1] [number] kilometres away at [a location], the applicant replied that he worked there during the week; on weekends he would help out occasionally in the village.
·     When asked if the villagers took any other action to express their displeasure at the non-payment of dividends from the government other than to sign a petition at the end of 2013, the applicant said that no other action was taken.
·     He received assistance to apply for a visa to come to Australia from a church member who knew him and his wife well. The delegate noted that if the friend knew his wife very well it was difficult to understand why his wife had a completely different name and date of birth to the wife he claimed in his protection visa application; in response the applicant said that he merely provided his passport to his friend and nothing else.
[3] As discussed in the country information including the information in the delegate’s decision record provided to the Tribunal, where it was noted that the Three-Self Patriotic Movement (TSPM) is a state body.
The delegate refused the application on 1 September 2016. The delegate was not satisfied that the applicant attended an unregistered church or was harassed for doing so nor that he set up his own unregistered church in China. In addition to the concerns referred to above, the delegate also did not accept the applicant’s claims relating to Christianity as the delegate considered that he was unable to express knowledge of Christianity commensurate with a person who claimed to have been attending church since he was [age] years of age. In any event the delegate considered that even if his claims of being a Christian and attending Christian activities were accepted, they indicated a long period of no harassment which supported the country evidence that the Fujian authorities are generally tolerant. The delegate did not find the applicant’s account of the socio-economic situation of his village to be credible, nor that he set up a church nor that [Official 1] of the village perceived him to have influence over the villagers. The delegate was also unconvinced with the applicant’s claims given the discrepancies between the applicant’s visitor visa application and his protection visa application, including different details for his family and that, in his visitor visa application, the applicant stated he lived in a different province, Zhejiang.
After considering credibility concerns, the delegate was also not satisfied with the documentation provided, including:
· A letter from a Chinese church and a Baptism certificate for 2003 in China: the delegate referred to country information indicating that “little evidentiary weight can be placed on any official Chinese document and that improper issue of documentation is widespread in China”.
· Concerning the letter indicating that the applicant had attended study group in Australia the delegate was not prepared to accept this as a genuine letter noting it stated that the applicant started attending [Church 1] in June 2015 but the applicant at interview said he only started attending in July 2015.
The delegate was not satisfied that the applicant was a refugee nor was he owed complementary protection obligations.
The Tribunal
The applicant provided a copy of the delegate’s decision record to the Tribunal and notification of refusal. He also provided some photos of himself at a church choir (undated) and further statements dated 6 August 2019 in which he said that his previous statement was true and correct. After he settled in Australia he has been attending church and fellowship meeting at [Church 1] and he spreads gospel at his work and encourages workmates to go to his church. He is currently unemployed and he has been unwell for a few weeks as he is worried about himself and his family back home. On Christmas Day 2018 his wife told him that their church had been raided, their details had been recorded and they changed to a government sanctioned church for a while but the cross was removed and some church members were arrested. The wife and his parents returned to the old family church which was again raided but luckily his family were not there. His wife and parents have stopped attending worship. If he returns to China he will lose his freedom of religion and he will not be allowed to spread the gospel and he may be imprisoned and arrested due to his religious faith and he will also be dealt with due to his past affairs. The authorities have become harsher since he left.
The applicant was invited to attend a hearing on 16 August 2019 and he attended to give evidence and present arguments accompanied by his agent. The hearing was conducted with the assistance of an interpreter in Mandarin/English. The relevant evidence is mostly set out later in the decision; other evidence included:
·     His protection visa application forms and statements are all true and correct.
·     The applicant said that a Brother from his church helped him to do his offshore visitor visa application.
·     The village committee entered a contract in 2002 which would deliver in 18 years (2020), and part of the profits was to be handed out to villagers but this had not occurred. They took the land in 2002, they enclosed the [area] in 2004 and profits started to occur in 2005.
·     The applicant said if he shall go back to China he will continue to be persecuted and he won’t be able to freely conduct family gatherings.
·     The Tribunal noted that in the applicant’s statement he said that he recalled his brother had told him that Australia was a democratic country where people enjoy freedom of speech and freedom of religion. At the end of the hearing the Tribunal asked the applicant if he had anything more to talk about with the Tribunal and he said no. The Tribunal also noted that he had mentioned “brother” earlier in the hearing and it was not sure if he was referring to a brother of the church or his own brother who had come to Australia. The Tribunal asked whether there was anything he wanted to say about his own brother, and whether his brother was relevant to his case. The applicant did not say that he was relevant nor that there was anything he wanted to say about his brother.

At the hearing, as a result of the concerns with the applicant’s claims and evidence, the Tribunal said to the applicant that it may have difficulty accepting his claims of past harm and feared future harm and in relation to his commitment to religion. It put issues to the applicant, as well as information pursuant to s.424AA of the Act. The Tribunal offered the applicant an opportunity to take further time and speak to his agent before commenting and/or responding, and the applicant agreed to do this with all of the information put to him.
The agent said that he would organise for the untranslated letters to be translated after the hearing.
After the hearing the Tribunal provided to the applicant copies of the documents discussed at hearing including those two untranslated documents submitted in support of the applicant’s protection visa application, as well as documents submitted in support of the offshore visa application including a copy of the passport identity page, a copy of the ID document submitted, and a copy of the offshore visitor visa application.
The agent made a request for a copy of the hearing recording, which was granted. He provided the first translated document on 27 August 2019 and the second one on 24 September 2019. Also provided post hearing were documents including an updated statutory declaration of the applicant of 26 August 2019, submissions by the agent, and documents from China as well as translations of documents from China. The applicant reaffirmed that the details provided in his protection visa application were correct and that he has a well-founded fear of not having personal religious freedom and not being able to practise his religious activities if he returns to China. He confirmed that he fears reprisal actions due to his proactive participation in the petition against the local government before he left China.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered all of the claims and evidence before it; it had concerns with the credibility of the claims as discussed below.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
Having considered the relevant evidence, the Tribunal has concerns about the applicant’s inconsistent and changing evidence, as well as evidence which appeared not to be credible. It was concerned with the veracity of his claims. The Tribunal sets out its reasons below.
Firstly, the Tribunal had concerns about the applicant’s inconsistent and changing evidence in relation to his claims. In his first statement, he presented that he and his family attended church and religious gatherings freely, making no mention of any difficulties, and that he started his own young people’s family church in 2008 not because of any problems, but because it was “God’s calling”. The first time the applicant mentioned any problems in his statement was in March 2014, when [Official 1] of the village threatened that they were aware he was running an unauthorised church and he could get into trouble for this.
Given that his statement indicates that there were no difficulties for the applicant as a Christian before 2014, the Tribunal was concerned with his evidence to the Tribunal as to why he obtained his passport. The Tribunal noted that the passport he produced in support of his protection visa claims was issued [in] 2010.[4] The Tribunal asked the applicant why he obtained his passport. He responded that he needed a passport to come to Australia; he confirmed that his intention when he got his passport was to come to Australia; and the reason was that he was subject to persecution in China. When asked if he could recall when it was issued, he said that he could not recall.
[4] In his protection visa application form he indicated that this was his first passport.
The Tribunal explored with the applicant when he suffered persecution in China; he said 2013. He then corrected himself and said that before 2013 he was subject to some persecution major and minor but the big one was in 2013. When the Tribunal asked when did the persecution occur which made him decide to come to Australia, he said it was “roughly around 2014”. The Tribunal noted that his passport was issued [in] 2010 which was inconsistent with the claim that he got his passport to come to Australia because he had experienced persecution in 2014. The applicant’s response was to change his evidence: he said that he made up his mind to come here before 2014 because he was subject to persecution before 2014. The Tribunal does not find his changing evidence to be a satisfactory explanation. He did not explain why it was his initial evidence that he obtained his passport (in 2010) because of persecution he suffered (in 2014), and given this was his first passport, and this was a decision to flee his family and country, the Tribunal considers that his evidence in this regard would be fairly consistent; instead it changed when the Tribunal put to him documentary evidence (the date his passport was issued), which undermines his credibility and claims as to why he obtained a passport.
The Tribunal also put to the applicant that, as discussed, according to his first statement, the first time problems arose due to religion occurred in 2014; it would think that if he had experienced problems that made him form an intention in 2010 to escape China, he would have mentioned them in his first statement. His response was to say that this was because in 2010 the persecution existed “but not too much” but in 2014 it all multiplied and he decided to come. The Tribunal did not find this to be a satis explanation because when the applicant had been asked about persecution and the reasons for obtaining his passport and coming to Australia, he made no mention of anything occurring in 2010. It also notes that at the conclusion of his first statement, he said “Above has been read in Mandarin to me by my [named] migration agent. I fully understand the contents and agree that this is the true account of my claims”. The Tribunal considers that his failure to mention any persecution or problems prior to 2014 in his detailed first statement, which was put forward by him as comprehensive, undermines his subsequent explanation that he experienced harm before 2014.
A further concern with the claim that he suffered persecution or problems prior to 2014 arose because when the Tribunal asked the applicant to explain the persecution he had suffered prior to 2014, his evidence was difficult to understand and evasive. Initially his response was “everything was registered, the number of people attending and even what the sermon said had to be registered”. When the Tribunal asked him to explain how that affected him on a practical level, he then said “in 2014 they didn’t allow us to go to church quite often and [he] suffered harm”. He continued to mention 2014 and despite being directed to the period before 2014, he had difficulties in explaining what occurred before 2014. The Tribunal said it would give him a final opportunity to explain how he suffered persecution before 2014 and he then said words to the effect of “the gathering took place in the form of family gathering but religious bureau and PSB came and stopped it”. The Tribunal asked what date this occurred and he said that happened “constantly”. The Tribunal put to him that if this was happening constantly it is hard to understand why it was not in his statement, which instead refers to a positive history of attending church and then family church gatherings until 2014. The applicant did not respond to this concern, instead he said “One more thing, in 2013 I with some villagers went to sue the village government for its corruption and ever since then they came and make scene and harass me often”. The Tribunal was concerned that his evidence and failure to provide an explanation as to why any religious persecution was not in his statement, as well as his difficulty in explaining what had happened before 2014, undermined his credibility and his claim of persecution prior to 2014. The Tribunal’s concerns were heightened in this regard because even though the delegate had raised concerns with the applicant at interview[5] about this new claim and his failure to make mention of any problems prior to 2014, when he provided two statements to the Tribunal, both dated 6 August 2019, they both confirmed that the contents of his first statement were true, and yet they did not include any details of any persecution or harm suffered before 2014.
[5] Delegate’s decision record page 5
Further, the Tribunal had similar concerns with the applicant’s claim to the delegate about persecution before 2014, noting that it was only when the delegate put to him that he had attended an unregistered church for approximately [number] years without suffering any persecution (according to his detailed first statement), that the applicant claimed that he was persecuted before 2014. When he was reminded that his written claims made no mention of persecution until 2014, he said to the delegate that he was young and “the Bible needed to be registered”. He also claimed at interview that the reason why he had stopped attending the church he had been attending for [number] years and set up his own church in 2008 was because he was experiencing harassment in attending the church. The delegate put to him that this new claim was difficult to accept, noting his claims that the first church had about 100 attendees, and was a two-storey church which was not a secret church (and, as noted above, in his written claims he had made no mention of anyone having been harassed or persecuted in those [number] years suggesting that he had to stop attending that church). He responded to the delegate “the Patriotic church needed to be registered”.[6] The delegate later noted that the applicant was unable to give examples of being harassed for attending church prior to 2008.[7] The Tribunal did not consider the applicant’s explanations or responses to the delegate to be persuasive. It considers his changing claims, made in response to concerns being put to him, undermines his claims and credibility.
[6] Delegate’s decision record page 5
[7] Delegate’s decision record page 6.
Secondly, the applicant gave inconsistent evidence as to his attendance at churches/family gatherings. His statements refer to his initial attendance with his family at a church which he described to the delegate as a two-storey, non-secret church from when he was a young child (he did not provide the name of this church in his statement), until he started his own family gathering which he named as “[Name 1 church]”.[8]
[8] His statement also refers to his parents taking him to family gatherings in other people’s homes which is not relevant to the Tribunal’s concern.
At the hearing he said that the church he attended in China with his mother as a young child was called “[Name 2 church]” and when asked what that meant he said “All gatherings in the church shall be full of joy”. He said that he attended that church until 2014, at which time he organised a family church in 2014. He said that the family church he organised was not given a name as it was purely a family gathering. When the Tribunal asked whether he attended any other church or religious gathering in China apart from the two he just mentioned (one from when he was a child until 2014, then a different one from 2014), he said no.
The Tribunal put to the applicant that this evidence was inconsistent with his statement and what he said to the delegate at interview. The Tribunal noted that those accounts were that he went to the first (non-secret two-storey) church until 2008 and then he set up a family gathering with [Person A] (in 2008 not in 2014). The Tribunal asked if he wanted to explain; his answer did not respond to the concern: he said words to the effect that “in 2008 because since I was a kid my parents had been taking me to the first church – I always was in the church since I was little, moving chairs”. The Tribunal repeated its question and its concern; he then said words to the effect of “until 2008 I went to church in village and in 2008 because they often harass us and I attend a family gathering of brother named [Person A]”. This, however, was inconsistent with his earlier evidence to the Tribunal. It said to him that he had previously been asked and he had specifically said he only attended the two religious gatherings that he mentioned. His response did not address the Tribunal’s concern with his evidence; instead he said that in his written materials he mentioned that he attended a gathering in the name of [Person A]. While the Tribunal acknowledges that in his statement he said that his family gathering church (which had operated since 2008) had to change location in 2014, this still does not explain why the applicant initially told the Tribunal that he only attended two religious places (one until 2014, and a different one in 2014) and omitted any mention of setting up his own family church in 2008. The Tribunal considers that his initial evidence to the Tribunal, which contrasted his previous claims, and then his changing evidence once the Tribunal drew his attention to this, undermines his claims and credibility.
Further, the Tribunal noted the inconsistency in his evidence to the Tribunal in the names of the gatherings/churches he attended in China.
The Tribunal put to the applicant that: in his statement he gave no name for the first church he attended (the two-storey church which was not a secret) and the name of his family church gathering was [Name 1 church]; whereas in his evidence to the Tribunal he said that the first church did have a name ([Name 2 church]) but his family gathering did not have a name because it was a family gathering. In response the applicant said that the one he set up himself didn’t have a name, but the family gathering in [Person A’s] house was called [Name 1 church]. The Tribunal did not consider this explanation to be persuasive in light of his initial evidence to the Tribunal was that there were only two religious places (he had omitted to mention the one he had set up with [Person A] which he claims ran for six years). Further, the applicant had said that the reason why family gatherings were not given names was because they were family gatherings; he did not explain why then that one family gathering (set up in [Person A’s] house) did have a name. Further, the applicant had clearly said in his statement that the family gathering in [Person A’s] house was set up by the applicant himself (with some others); which was contrary to his new evidence to the Tribunal that this was not a gathering set up by him, instead there was another one (set up by him in 2014). This itself is also undermined by the applicant’s statement where he claimed that the raid on 25 December 2014 led to [Person A] and the applicant being detained and then released and then there was a discussion with [Person A] that “our” church was not registered and was thus subject to government interference and “we” could have problems if “we” continued to run it, but they decided to continue to operate their church but just to change “our” location of worship; this indicates that throughout 2014 and thereafter, he operated the family church he set up with [Person A].
The Tribunal’s concerns were heightened because the applicant said at the hearing (contrary to his statement) that in 2014 his family gathering had been prohibited and he was not allowed to attend, and from the second half of 2014 he only attended a registered (government approved) church. This however undermined his claim in his statement that his church was operating in 2014, noting reference to the second incident (where the authorities attended) which occurred on Christmas Day 2014, when “my church held a gathering in my grandmother’s home in the country to celebrate Jesus”.
The Tribunal considers that the applicant’s changing and inconsistent evidence about the religious gatherings he attended and set up undermines his credibility and his claims that he was involved in Christian gatherings in China.
Thirdly, the Tribunal had further significant concerns with the evidence surrounding the applicant’s passports, his identity, and that of his family. As noted above, the applicant’s evidence as to the reason why he obtained a passport in 2010 was inconsistent (namely because he wanted to come to Australia because he had faced persecution, however his statement (and most of his evidence) only suggested that he faced persecution in 2014 and that he then escaped to Australia in 2015).
In addition to that, when the Tribunal asked the applicant whether, when he submitted his visitor visa application offshore, he had submitted his genuine ID card and his genuine passport, he said yes. The difficulty with this assertion however was that, according to the extracts from the Departmental offshore file, the passport he used offshore appeared different to the passport he used onshore.
The Tribunal noted that the passport he provided in support of his offshore visitor visa application was issued [in] 2010 and it showed that he was born in Zhejiang Province (not Fujian Province). The Tribunal put to the applicant pursuant to s.424AA of the Act that this was inconsistent with the passport (issued on the same date, with the same passport number) provided in support of his protection visa proceedings (the original of which he had produced to the Tribunal), which showed instead that he was born in Fujian Province. The Tribunal put to him that if his evidence to the Tribunal was correct (that he had used a genuine passport when offshore) then it would seem that the passport he had produced to the Department and Tribunal in the protection visa proceedings was false. The Tribunal put to the applicant that the information before it would indicate that he appeared prepared to rely upon false documents to obtain a protection visa outcome, and the Tribunal would find that he is not a witness of truth about his background in China and his claims. The Tribunal also referred to s.91WA of the Act as a possible consequence of relying upon the information if it accepted that the copy of his passport in the offshore file was his real passport (and if there was no reasonable explanation for the use of a false passport in support of his protection visa application) which would be a further reason for the protection visa application to be refused.

The Tribunal noted that it was not just his passport which caused concerns; his identification card and other documentation relied upon in his offshore application also undermined the onshore documentation and claims he had made in his protection visa application. As noted above, his visitor visa application of April 2015 states his address was in Hangzhou City, Zhejiang province (not Fujian Province as claimed in his protection visa application); that he works [in Occupation 1] for [Employer 1] (compared to working at that time for various casual employers as he had been forced out of his job at [Business 1] as claimed in his protection visa application). His offshore visitor visa documentation lists that his father, mother, brother, wife, and son all live in China. The names and dates of birth for each family member differ from those listed in the protection visa application. Further, unlike his protection visa application, the applicant does not list a daughter or sister in his offshore visitor visa application. Further, the ID card produced for the applicant in his offshore visitor visa application had the same name but different details on it compared to the one referred to in his protection visa application.
The Tribunal put to the applicant the information pursuant to s.424AA of the Act noting that the above, if relied upon, also indicated that the applicant is not a witness of truth about his background in China, that his claims are not true and that he is prepared to rely upon false documents when making applications to the Australian government.
The applicant had been advised at hearing that he could seek extra time to comment and/or respond to the information. The Tribunal suggested that he may want to seek extra time to discuss this with his agent; he did seek that option, and the Tribunal agreed that written responses/comments could be provided after the hearing. Towards the end of the hearing the applicant said to the Tribunal that he has a genuine passport and he didn’t know about the other passport; concerning the other inconsistencies, it could be the case that the Brother just filled in different information.
After the hearing the Tribunal received further responses/comments. As noted in both the post hearing submissions and the applicant’s post hearing statement, the applicant says that he cannot explain how the passport he used to obtain his visa had a different place of birth, place of issue of passport and bar code on the biodata page, while having the identical name, date of birth, and passport number. He said he has contacted his friend who assisted him but that the friend cannot explain as the friend received assistance from someone else. He said he does not know how his passport was altered. He has also said that some information in his offshore visitor visa application is false however it is not him, he didn’t tell anyone to provide false information. He said as he had previously claimed, he didn’t know how to apply for the visa; he provided to the agent, when he was offshore, a copy of the identity cards of his wife, children, parents and siblings. He later received back his business visa and passport but he didn’t know he had a business visa. He said that the answers to questions 4, 15, 17-21, 23, 33, 41, and 42 of the offshore visa application form, plus the additional documents (supporting an intention for a genuine business visit) referred to in the application form, and the Family Composition Form, are wrong. In this respect he said that: he was born in Fujian not Zhejiang; they were not his contact phone numbers or email and he doesn’t recognise them; he never worked for the company claimed and did not intend to come to Australia for business nor did he know the person said to be inviting him to Australia; he said the Chinese signature was not his signature, and the English signature is not his as he does not know how to sign his name in English. The home address and names of his wife, parents, siblings, and child declared in his offshore family composition form are all incorrect and he doesn’t know who those persons are.
He provided a copy of documents purporting to be part of his family household registration (hukou) (showing details of his parents, himself and his wife) as well as copies of Chinese ID cards (translated) for his parents, himself and his wife. The information on the copy documents was consistent with information in his protection visa application forms. While the Tribunal has considered these copy documents and the applicant’s explanations, given the Tribunal’s other concerns, as well as the country information indicating the availability of false documents in China[9] (which was raised at hearing), and the applicant’s initial assertion to the Tribunal that the passport he used offshore was genuine (which assertion he subsequently changed), and his unsatisfactory evidence as to the reason why he obtained the passport, the Tribunal is not prepared to accept the applicant’s explanation as to why he supplied to the Australian authorities two different passports issued the same day (four years before his written claims even refer to persecution) but with different places of birth, nor his assertion that he did not know/was not aware of this. In the circumstances it is not prepared to put weight on these documents such that the documents can overcome the Tribunal’s concerns.
[9] Referred to in the delegate’s decision record as noted at paragraph 11 above.
The Tribunal considers that the above indicates that the applicant has not been forthcoming and truthful about his identity and the details of family members and reasons for seeking to come to Australia.
Another concern with his information about his identity and background (in the context of family members) also arose at the hearing. The applicant was asked for the names and dates of birth of his children. He said “[year]” for his first child however when asked for the date or the month he was silent. When asked why, he said that he “sort of forgot” and he thinks his older child was born in [month]. It was only when the Tribunal put the precise date that he had previously given (in his protection visa application form) of [date] that he agreed this was the date.
Concerning his younger child, he said the child was born on [date]. It was only when the Tribunal put to him that his protection visa application form recorded that child was born on [date] that the applicant agreed. He said that he had wrongly recalled their dates of birth. While the Tribunal understands that people can make mistakes with their recall of dates, and that dates may not be important to some people, it notes that the applicant did not suggest that the dates of his children’s birth were unimportant for him. He also did not explain why he gave precise dates in his written materials but did not know these dates at hearing. The Tribunal considers that his inconsistent evidence as to when his children were born heightens concerns that the applicant may not have been truthful about his background and family members.
Fourthly, the Tribunal considered the applicant’s evidence to be unlikely in a number of respects in relation to the petition, as well as to be changing after the delegate pointed out concerns, and inconsistent at other times. Although each example on its own may not be considered a reason not to accept his claims, when considered as a whole, with the other credibility concerns, the Tribunal considers that these matters are further evidence undermining the truth of his claims. For example:
Claim that [number] villagers had their main source of income taken from them for 11 years and took no action: The applicant’s statement was somewhat detailed in its description of the villagers and their source of income. It stated that the aim of the contract was to redevelop the [farms], the government was temporarily taking back the allocated [farms] from the villagers, in return they were promised some profits and then after 18 years the [farms] would be returned to the villagers. The statement indicated that this was their source of income; there was no suggestion that only part of their farm lands were taken away. The claim however, that the villagers had all of their land taken away, received no profits, and did nothing for 11 years at which time they signed a petition, seemed difficult to accept.
When the delegate asked the applicant how a village of [number] people survived for 11 years after their main source of income was taken away from them, he initially said that some people had casual jobs and some people planted [produce] on the mountain. When the delegate put to the applicant that he had said that the villagers relied on the growing of [produce] for their livelihood, his evidence then changed: he said that only part of the land was taken (the government gave the company [amount] out of every [amount] of land to farm [produce][10]). The applicant repeated this claim to the Tribunal at hearing. The Tribunal put to him that this was different to his statement which indicated that all the land had been taken. The Tribunal said that if only two thirds of each villager’s land had been taken (as he now said), it did not understand why he did not mention this in his statement, and it noted that it was only after the delegate put to him that it was hard to understand how a whole village could have survived for 11 years when their livelihood had been taken from them that he then said that only part had been taken. In response to the Tribunal’s concern, the applicant said that the company had taken [amount] out of every [amount] of land but that he didn’t put the detail in his statement. The difficulty with this explanation is that it does contradict his statement, which indicated that the whole of the land was taken, and as noted above he swore in his statement that his statement had been read back to him and it was the true account.
[10] Delegate’s decision record p6
Further, the Tribunal had concerns with the applicant’s evidence as to the actions taken by the villagers to get their land back. The villagers’ land was taken in 2002, the company started making profits from the land in 2005; it was difficult to understand why the only action taken by the villagers was in 2013 when they made a petition, more than 10 years after their livelihoods were taken (and 8 years after the company had been making profits from their livelihood). The delegate had put to him that the villagers must have been very patient to not receive any dividends and to wait 11 years to complain to the government; the applicant had agreed.[11] The delegate noted that it did not seem very credible that “despite not receiving any income for eleven years the villagers only took one solitary action at the end of 2013 by submitting a petition”.[12] The Tribunal raised the same issue; the applicant responded that the villagers complained and there was procrastination which went on for years and years and they were government officials and they didn’t know what to do with them and that is why in 2013 he had to do a petition.
[11] Delegate’s decision record p6
[12] Delegate’s decision record p7
The Tribunal did not find the explanation that the villagers didn’t know what to do, for an eight year period (between 2005 when the profits were made and not distributed and 2013 when they finally lodged a petition) to be persuasive; the Tribunal put to the applicant that they could have done a petition much earlier. He responded by saying they worked on the remaining land to feed themselves and government officials promised they would return the land after 2020. This was not however a response to the Tribunal’s concern with his claim that the villagers did not know what to do during this very long period, and that they could have lodged a petition much earlier. The Tribunal considers the applicant’s claims to be unlikely.
Claim that the [Official 1] was prepared to take serious measures to stop the applicant’s actions: The applicant said that he was threatened by [Official 1] in early 2014 who told him that he needed to stop the petition and if not, he would face harm, noting that [Official 1] was aware that he was conducting illegal church services. It was his evidence that he was in danger, and that the authorities are willing to detain and maltreat him to achieve their ends. In these circumstances, the Tribunal considered it difficult to accept that all they did, to obtain the outcome they wanted (but did not achieve), was to organise for the church services to be raided twice in an 18-month period (with the applicant detained only once, during the second incident for two days). The Tribunal put to him that these did not appear to be the actions of people in power who really want the applicant to stop a petition, noting his claim that [Official 1], the police, religious government authorities, and the PSB are all connected, and corrupt[13] (even taking into account his claim that the applicant lost his job).
[13] DF42, 43
In response, the applicant said [Official 1] worked with the religious bureau to come and harass them and interrupt the normal flow of services. The Tribunal noted that this response was inconsistent with his statement, where he said “After the visit by [Official 1] (where he attempted to bribe the applicant) two incidents took place that led me to escape from China. I believe they were both related to my religious activities and the petition that I had helped the villagers” (emphasis added). He then described the raid in mid-2014 and then the Christmas2014 raid/detention. The Tribunal considered that if there had been other harassment of religious services he would have mentioned this, not just the two incidents. When this was put to the applicant he just repeated to the Tribunal that they harassed and stopped the services; he did not explain the different version in his statement. The Tribunal considers that if his claims were true, he would have indicated this in his statement which he said was a true account of events.
Inconsistent and implausible evidence about his detention/when he lost his job: Further, as put to the applicant, it was hard to understand why he was released after two days if the religious gathering he had been at was illegal and unauthorised, and if [Official 1] wanted to make the applicant stop the petition and actions of the villagers. [Official 1] could have used this detention as leverage to ensure the applicant did what he wanted. In response the applicant repeated his claims that the village officer called him during the 2-day detention and said he will be able to release the applicant on condition that he stop the petition. The Tribunal put to the applicant that he didn’t stop the petition; and if that was the case, it did not understand why [Official 1] did not just have the applicant detained again. The applicant responded that he didn’t know why they didn’t organise to lock him up again, but they did make him lose his job. The Tribunal put to him that he had lost his job before he had been detained; the applicant said no, it had happened after he was detained. The Tribunal asked when he lost his job and he said in late 2014. The Tribunal put to him that this was inconsistent with his written materials: he lost his job in June 2014 (and he only did casual jobs from June 2014 until May 2015; according to his application form) whereas his detention occurred after that, in December2014 (according to his statement). The applicant did not respond other than to say “yes”; he did not explain why he had changed his evidence. The Tribunal considers that the applicant would recall whether he lost his job before, or after, the only time that he was detained; his inconsistent evidence in this regard undermines his credibility and claims. Further, as discussed, it seems unlikely that [Official 1] would have done nothing to detain the applicant again (given the applicant did not suggest that the [Official 1’s] power had diminished; indeed the applicant maintained that he was in danger and had to flee to Australia).
Changing evidence about the days of the gatherings: The Tribunal was also concerned with the applicant’s changing evidence about the days that gatherings occurred in his unregistered family church. The Tribunal asked when the gatherings occurred and he said usually on Saturday night. The Tribunal asked whether that was the only time and he said “and Thursday”. When asked, he confirmed that’s all. The Tribunal noted that in his statement he also said the gatherings occurred on Thursdays and Saturdays; he made no mention of Sundays. The Tribunal noted that he gave different evidence at his interview with the delegate (initially he said there were no meetings on Sunday before saying that there were services on a Sunday at his friend’s home). The delegate had reminded him that his written claims only referred to services on Thursdays and Saturdays however he then maintained there was a service on Sunday.[14]
[14] Delegate’s decision record p6
The applicant then said to the Tribunal that there were also services every Sunday. The Tribunal asked the applicant whether Sundays were special or had a special meaning in his religion and he said yes there would be many attendees at the church, more than on Thursdays and Saturdays. The Tribunal put to him that if this was the case, it did not understand why his evidence to the Tribunal was that the gatherings occurred on Saturdays; then he said Thursdays; then he confirmed that was all. The applicant responded by saying that he had been about to add that gatherings occurred on Sundays, but he didn’t get a chance. While the Tribunal accepts that, after the applicant confirmed the gatherings only occurred on Saturdays and Thursdays, he then started to talk again, it considers that his failure to mention Sundays (which he claimed had a special meaning and there would be many attendees at the church), except as an afterthought, undermines his claims that he was a committee member and founder of a popular family church which operated for 6 years in China conducting services, and it undermines his credibility.
The applicant’s preparedness to leave his family behind: The Tribunal put to the applicant that he had indicated in his documents that revenge could be taken on his family (in his application form he stated that he did not seek help in China before leaving as he was worried that his family’s life would be even more fearful and miserable, and in his statement he claimed that he had been threatened in early 2014 by [Official 1] that unless the applicant stopped what the villagers were doing, he would cause trouble for both the applicant and his family); in the circumstances, given how ruthless (and connected) the applicant said these people are, the Tribunal did not understand why the applicant would escape but leave his family behind. In response the applicant said that they targeted him but the family gatherings conducted by his wife and his parents can be conducted freely. The Tribunal put to the applicant that this indicated that it was not the religion which was the target, but the petition. In response the applicant did not agree; he said religion contributes and they often came to harass the church, confiscated speakers and told them to stop. The Tribunal considers that this second explanation (harassment of religious activities) undermines his first explanation (that his wife and parents were free to conduct religious gatherings). The Tribunal also considers that his response to the Tribunal (namely that they were only interested in the applicant) undermines his written claims that they were threatening his family and that he was fearful for his family, who were also fearful and miserable.
Credibility concerns: The Tribunal considers that the above matters indicate that the applicant is not a witness of truth when discussing matters relevant to his activities in China, his religion, and his claims to fear harm upon return.

Further concern: The Tribunal had a further, additional, concern with the applicant’s evidence. It noted his ability to provide evidence about his religion and beliefs was even less flowing than when he talked about his other claims (which evidence was sometimes quite limited). When considering that the applicant claimed to have attended church since the age of [age] years, including in China that he was responsible for and organised his own gatherings as a leader of youth and he read to people from the Bible who were illiterate, the Tribunal considered that his inability to speak in any real detail about his religion undermined those claims and suggested that his knowledge was learned and rehearsed. In this regard, the Tribunal has considered the following discussion[15]: When asked what his religious beliefs are, he said he is a Christian. When asked again what his beliefs are, he was silent and then he said that his belief is that he shall be devoted to his parents and he shall not commit theft and he shall not have idols from other religions. The Tribunal asked whether there was anything else and he was silent. He then said that one shall be full of love and should not steal property from other people. The Tribunal asked if there was anything else and he said no. The Tribunal asked if there was anything else he could say about his religion and he said no.
[15] The words were to that effect, they are not exactly set out here.
The Tribunal put its concern to him that it would have thought that, ever since he was a young child he has attended Christian gatherings, he has taught people and read to them from the Bible and engaged in many activities (both in China and in Australia) including organising his own family church in China. The Tribunal put to him that in the circumstances it would think he would have been able to say, spontaneously, more about his religion, and because he did not do so, the Tribunal had concerns that his knowledge may be because he has learned and rehearsed it. The Tribunal asked if he understood that as he could not just talk spontaneously about his religion when given the opportunity to do so then this is hard to understand, especially as it is his claim that he was not just a passive person, but instead he was actively involved as a church/religious gatherings leader and organiser. After he had said no, there was nothing more he could say about his religion, and when the Tribunal had started to put its concern to him, he had started to interrupt. The Tribunal had asked him to wait until it finished; when he then had his opportunity to say anything about his religion, given the Tribunal’s concerns as to his inability to speak about his religion in a more spontaneous and flowing way, he did not provide any more detail about his religion; he just said he could get a letter to confirm his attendance at church.
Supporting letters are discussed below; the Tribunal’s concern, however, was with the applicant’s limited ability to discuss his religion and his beliefs, which it considered inconsistent with his claimed circumstances in China and in Australia. The Tribunal also notes that later, when it had discussed its concerns that he may not be a true Christian and it had asked him whether there was anything else he wanted to tell the Tribunal, although he was given a further opportunity to tell the Tribunal about his religion, he did not do so; he said there was nothing else he wanted to say.
Other matters
Supporting letters relating to events in China: The applicant had produced to the delegate two untranslated documents which were a Certificate of Baptism from 2003 and a letter from a church in China. The delegate did not accept these as genuine, referring to the country information indicating that little evidentiary weight can be placed on any official Chinese document and that improper use of documentation is widespread in China.[16] These had still not been translated by the time of the Tribunal hearing. The Tribunal raised these documents at the hearing, noting that it could not understand them.
[16] Delegate’s decision record p8, source cited in CX42649 “Summonses in China”, Undefined, 5 June 2000.
The Tribunal noted that the untranslated letter had been discussed at the interview, with the interpreter suggesting that it stated that the applicant had served in the church despite facing many difficulties and that he was a major military figure in their church, and that he had been baptised in April 2003 so that he could preach to more people.[17] The delegate was concerned about the reference to the military, which was mentioned in the Departmental decision record. The applicant did not address this nor provide a translated version prior to the Tribunal hearing. When the Tribunal raised this at hearing the applicant said that he had not been in the military; there were discussions that the word “military” was a literal translation, with the interpreter at the hearing stating that it could mean “priest or host”. There is no evidence before the Tribunal that the interpreter before the Department was also an accredited translator of documents; the Tribunal is prepared to accept that the letter does not contain a reference to the military. The post hearing translation showed that this was a letter of reference dated 25 August 2016 from [a priest] of [Church 2]. It stated that the applicant served in their church, he was a member of the youth ministry, he was faithful to God, devout, active and enthusiastic in serving God, brave to face challenges and had encountered many difficulties in the journey of following God. In April 2003 he decided to receive baptism and expand his role in giving personal testimony and spreading more gospel to the villagers with his religious knowledge.
[17] Delegate’s decision record p8
This document is from a church that the applicant has not claimed in his evidence to the Tribunal (or in his statement) to have ever attended. The Tribunal had raised with the applicant at hearing its concerns with the names of the churches/family gatherings that he attended in China; the only names he gave were [Name 1 church] and [Name 2 church].
Taking this into account, and having regard to the Tribunal’s credibility concerns and the country information showing the availability of false documents in China, the Tribunal does not consider that the letter overcomes its concerns, and it is not prepared to place weight on it as support for the applicant’s claims.
The second untranslated document was a Certificate from [Church 2] from 25 August 2016 certifying that the applicant was a Christian and was baptised in April 2003. This was discussed with the delegate who noted that the interpreter said it was a document indicating that the applicant had been baptised but that the top of the document had been torn off. The applicant told the Tribunal that he was baptised in 2003, at [Name 2 church], and that he had no other baptism. For the same reasons as set out above, the Tribunal is not prepared to place weight on this certificate, nor the applicant’s assertion as to his baptism in China.
Supporting letters relating to events in Australia: The applicant had produced to the delegate the original and translation of a letter from a Bible group dated [August] 2015 regarding the applicant’s religious activities in Australia. This stated that the signatories were from a “ [group]” (the contact was “[Mr B]”) and that since June 2015 the applicant attended the Lord’s Day Meeting in [Church 1] and “acquires the knowledge of the Bible”. He actively joins the prayer meeting on Friday nights, he believes in the Lord and hopes he can live in Australia. The delegate did not accept this as genuine, noting an internal inconsistency (over the start date) in the letter from the Australian Bible study group with the applicant saying at interview that he started attending [Church 1] in July 2015 whereas the letter said he started in June 2015.
The Tribunal asked the applicant about this letter; he said that the contact person is [Ms C], a female; the Tribunal asked if she was known by any other name and he said no. The Tribunal then put to the applicant that the person who wrote the letter was [Mr B] and it would think that if [Mr B] wrote the letter for the applicant that he could tell the Tribunal the name. The applicant said yes it is [Ms C]. He said he doesn’t know her English name. The applicant gave some of the names of the people who had signed the letter stating that he attends the Bible Study Group. Although the names were not on the whole the same, some were similar, and the Tribunal decided not to place any adverse weight on inconsistencies relating to names.
The only updated document provided by the applicant to evidence his religious activities in the intervening four years were two photographs which he said were of him taken with the church choir, and while there is no independent evidence that this is the case the Tribunal is prepared to accept that the photos he provided show him on an occasion with a church choir.
The Tribunal asked the applicant about his religious activities in Australia and he said that since he has been in Australia in 2015 he has attended [Church 1] on Sundays. He also attends a gathering at [a] church attendee’s home on Friday nights: he said that he goes to pray and sing hymns.
Thus, the only evidence as to the applicant’s Australian activities is his oral evidence, plus a handwritten letter (no letterhead) saying he had attended [Church 1] and Bible study (during a two-month period in 2015), and two photographs of the applicant with a church choir.
As noted above, in response to one of the Tribunal’s concerns, the applicant suggested that he could get a letter to confirm his attendance at church but that it would take a further two months as they only issue letters every four months. The Tribunal considered this assertion difficult to accept and in any event the Tribunal noted that his application for review had been lodged in September 2016 and that he had had notice of the hearing date; he claimed that the church would only produce letters every four months, and currently the Tribunal would have to wait another two months to get a letter from the church. The Tribunal said that this was difficult to accept; he then said the Tribunal could call some persons at the church however he didn’t have their phone number. He said the Tribunal could search for them on google, however when the Tribunal attempted to do so, restrictions on the Tribunal’s computer did not allow this to occur. The Tribunal said to the applicant that it did not seem to make sense that he was suggesting the Tribunal could talk to a person from the church but could not get a letter from the church for a further two months. He said he provided a letter previously; the Tribunal said that it was not from the church, it was a piece of paper, not on a letterhead, from persons who said that they were from a study group. At the hearing the Tribunal discussed that there could be many motivations for people to write support letters and even if someone says he is Christian, this does not mean that he is; this is a matter for the Tribunal to decide.
The Tribunal put to the applicant that he had been aware since September 2016 that the delegate did not find the applicant’s claims about his Christianity to be credible and thus it was hard to accept that the Tribunal had to wait a further two months to receive a letter of support which he could have obtained earlier. The Tribunal notes that the acknowledgement letter dated 21 September 2016 sent in response to the application for review form says that any material he wished the Tribunal to consider should be provided as soon as possible. The delegate had noted in his decision record that he did not consider that the applicant’s knowledge of Christianity was commensurate with someone who had claimed to have been attending church since he was [age] years of age, and his claim to have been a Christian in China who suffered persecution had not been accepted by the delegate, and nor had his support letters been accepted by the delegate as proof of his involvement in Christianity in either China or Australia.
The Tribunal notes that in the Hearing Invitation dated 18 July 2019 the applicant had been requested to provide documents upon which he sought to rely by 8 August 2019. The Tribunal considered that if the applicant sought to rely upon evidence from a church or gathering as to his involvement in Australia he could have produced this before the hearing (or in the period since the hearing). Given the time that he has had to produce such evidence to date, that he was on notice since 2016 that it was not accepted by the delegate that he was a genuine Christian, and given the concerns with his evidence, the Tribunal was not prepared to wait for a further two months for such a letter. The Tribunal did allow the applicant further time after the hearing and he could have produced anything else to support his church attendance; he did not do so. In the post hearing submissions there was a reference to the absence of a letter of reference from [Church 1]. The applicant apologised for not providing this and said that he had believed that he could request it and submit it before the hearing (as he was also advised by his agent). The applicant said that after the hearing he made another request for a letter but what he had said at the hearing was correct, namely that a letter can only be issued every four months after a meeting of the Committee. No other evidence was provided of this assertion.
The Tribunal considers that the applicant has had significant time to provide an official letter from the church or some such more recent or substantive evidence in support of his claimed religious activities in Australia at a number of different times: after the delegate’s refusal of his claims, before the hearing, and after the hearing. The applicant did not, for instance, indicate that he had even asked for the letter and that it would be provided on a particular date. The Tribunal does not consider that it is appropriate to further postpone the review. The Tribunal has considered the letter from the Bible study group and the two photographs which he said were of him taken with the church choir, and while there is no independent evidence that this is the case the Tribunal is prepared to accept that the photos he provided show him with the church choir. It is also prepared to accept that he has, on occasion, attended [Church 1] and a Bible study group, also noting the applicant does have some religious knowledge (set out below) and the Tribunal has found that he was not involved in religion in China; which means that it is likely that the knowledge was accumulated in Australia. The Tribunal is not however satisfied that the knowledge was acquired for genuine reasons, nor over a regular period of attendance, but instead sporadically and to support his protection visa application.
The applicant’s religious knowledge: The Tribunal has also taken into account his stated knowledge of Christianity as discussed with the delegate including as set out in the delegate’s decision record. He said Jesus lived in 2000BC, then he changed and stated that Jesus lived in 2000AD; through the Bible he would get eternal life; he was aware that Mary was Jesus’ mother but was unaware that the Bible consisted of the Old Testament and the New Testament. He could however name some books from the Old and New Testaments; he could name 5 of the 10 commandments and knew what Easter was but didn’t know any of the other major milestones of Jesus’ life (although he previously mentioned Christmas when he said that Easter and Christmas were sacraments). The Tribunal has considered that the applicant could answer some questions however, as noted above in the Credibility section, when asked to talk about his religion, he was unable to speak freely or in any depth about his religion. The Tribunal considers the applicant’s limited knowledge of Christianity as it considers that it is not commensurate with someone who claims to have been involved in Christian activities since he was a child, and to have been involved for six years in running his own church (and teaching his knowledge to others) and to have been a genuine Christian undertaking Christian activities in Australia. The Tribunal considers that the evidence indicates that he has learned some knowledge about his claimed religion.
Memory/nervousness: In the post hearing submissions and updated statement it was stated that although there may have been inconsistencies in evidence due to a short memory and nervousness and mix-ups at interview and hearing, overall his claims are credible. It was requested that he be given the benefit of the doubt. The Tribunal has considered this submission and while it accepts that the applicant could have been nervous at interview/hearing, it is not satisfied that this can explain the difficulties with his evidence. It was also stated that he could have misinterpreted questions at the Departmental interview, however given that there is a recording of the interview, the applicant has an agent, and no references/transcript were provided as to any such errors, the Tribunal is not prepared to accept that there were significant misinterpretations which can explain the concerns. The Tribunal is also not prepared to accept, on the evidence before it, that the applicant has memory problems that can explain the difficulties with his evidence.
Non-disclosure certificate
The Tribunal said to the applicant that there was information in the Departmental file which was the subject of a s.438(1) non-disclosure certificate which appeared to be not valid.
It is appropriate to address the validity of the s.438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.’ The only reason stated in the certificate is that the folios ‘contain information relating to internal working documents’. That is neither a necessary nor a sufficient basis for public interest immunity.
At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1) of the Act. Since the certificate is not valid it does not trigger the operation of ss.438(3)(a) and 438(3)(b) of the Act in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate. The document covered by the certificate (at folio 69A) is a Departmental note. The Tribunal put the gist of the note to the applicant pursuant to s.424AA of the Act, which indicated that he may have relied upon untrue information concerning his offshore visa application. When considering however whether or not to rely upon the information in this note, the Tribunal observes that it contains minimal information amounting to a suggestion with no real supporting information which does not assist the Tribunal any further than: firstly the applicant’s own admission that false documents were used in his offshore application; or secondly the reference in the decision record provided to the Tribunal by the applicant to the Department’s awareness of a cohort of applicants from Fujian Province who have been making applications claiming to be from Zhejiang Province. Although the note refers to other sources of information internal to the Department, or an option (for the Department in Australia) to contact the Department in China, the Tribunal did not consider these steps that it should take, given that the applicant had already said that the documents he relied upon offshore were not genuine. Thus, although the information was put pursuant to s.424AA as adverse information, the Tribunal does not consider it appropriate to rely on this information additionally as adverse information, given the minimal amount of information in the note, and the evidence already before the Tribunal.
Credibility summary

Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth as to most of his background, nor in relation to the claims he made to support a protection visa application.
Findings on the applicant’s claims
Country of reference and identity
On the basis of the overall general credibility finding, as well as the specific concerns relating to his documentation and identity (and the identities/details of his family members), the Tribunal has not been able to find with satisfaction the applicant’s actual place/province of birth, his home province, or details of his family members, his passport or his identity card. It is not satisfied as to his claim that he is from Fujian Province. Although the Tribunal is not satisfied that the Fujian Province passport that he produced in support of his protection visa proceedings is his genuine passport, it is also not able to make a positive finding that it is a bogus document. In the circumstances the Tribunal finds that s.91WA of the Act does not apply, because it is unable to be satisfied that the passport relied upon by the applicant in support of his protection visa application form is a bogus document.
The Tribunal has considered all of the evidence including the applicant’s assertion in his protection visa application form that he can speak a Fuqing dialect. Although it may be thought that a person who claims to be able to speak Fuqing dialect may have an association with Fuqing, this does not necessarily mean that the person was born there nor that it is the place he lived. The Tribunal is not satisfied that this assertion (in relation to which the Tribunal will give the applicant the benefit of the doubt) can overcome the other difficulties with the inconsistencies in his evidence relating to his origin (including telling the Tribunal that his passport used offshore (stating he was born in Zhejiang Province) was correct; claiming that he got his passport to come to Australia because of persecution although his written claims indicate the opposite; and significantly different details on family members) which undermines his background and own identity.
The Tribunal has also considered the delegate’s decision record. The delegate noted that the passport submitted by the applicant to the Departmental post in Shanghai indicated that he had been to [various countries] and had a visa issued for [another country]. The applicant said that he never had travelled anywhere overseas apart from Australia. The decision record did not specifically state that the passport used by the applicant offshore was inconsistent with his passport used in his protection visa application; it noted that in his offshore visa application he had claimed to be from Zhejiang Province, and the delegate then noted that the Department had a number of applications from people whose offshore applications indicated that they were from Zhejiang Province, but “they were really from Fujian and that he appeared to be one of these cohorts”. The delegate stated that “the applicant’s passport details have been verified with the Department’s ICSE system and previous visa application documents stored on TRIM”; it was also noted that the passport numbered [number deleted] [which the Tribunal notes is the same number on both passports] had been used to enter Australia on one occasion.
The delegate did not make any reference to or offer any analysis of the different places of birth on two different passports with the same number for the same person. Although considering country evidence about Fujian Province, the delegate did not make a positive finding that the applicant was from Fujian Province, although he accepted the applicant’s identity was [the applicant] born [date] and that he is a national of the PRC; this was information that was on both of the passports.
The Tribunal finds that the applicant has not been truthful about his background and while the Tribunal is prepared to accept that he is from China, it is not satisfied that the applicant was born and lived in Fujian Province as claimed. It is prepared to accept that he travelled from China to Australia on a particular passport and that he will return to the place from whence he came in China using the same passport. The Tribunal accepts that the applicant is a Chinese national and that the appropriate country of reference for the assessment of his refugee claims and complementary protection claims, is China.
Country information relating to the applicant’s claims
As well as country information contained in the delegate’s decision record (provided to the Tribunal by the applicant), the Tribunal has before it the DFAT Reports applicable at the date of the hearing and the report issued after the date of hearing on 3 October 2019[18]. The Tribunal has considered whether the new DFAT Report (to which it is required to have regard) raised any new issues or relevant information but given the findings of the Tribunal as to the applicant’s profile, it does not consider that there is anything in the new report which may assist or detract from the applicant’s claims or the Tribunal’s findings.
[18] The latter replaces the previous DFAT report released on the People’s Republic of China published on 21 December 2017, and the DFAT Thematic Report for Fujian province, People’s Republic of China, published on 16 December 2016
Political and religious activities in China
It is the applicant’s claim that he was religious and politically active in China. On the basis of the adverse credibility findings the Tribunal does not accept that this was the case. The Tribunal is not satisfied, on the basis of the adverse credibility finding generally, as well as the specific concerns with his claimed religious involvement set out above in the Credibility section, that he was a Christian, or a religious organiser/leader in China. The Tribunal does not accept that the applicant grew up in a religious household, that his wife, family or friends were or are religious, that he was ever suspected of being involved with religious activities, that he ever ran a church or gathering, or that he ever assisted villagers in relation to a petition, or that his village lost their significant source of income and were not compensated, or that he was ever suspected or imputed of being involved in anti-government activities. The Tribunal does not accept that he was detained or targeted or suffered harm for religious or political reasons in China. The Tribunal does not accept his claim made at hearing that he went to sue the government in 2013 and the PSB often came to his family gatherings and made threats and tried to give him money and tried to stop him, from 2013-2014. It does not accept any of the claims flowing from these claims (including his assertions that his wife and parents and their religious gatherings have been subject to a crackdown).
Religious activities in Australia
The Tribunal put to the applicant at the hearing that it was not sure that he was a genuine Christian. The Tribunal noted that even if it accepted that he had attended church, choir, and study groups in Australia, it had to consider the purpose of his attendance. The Tribunal put to the applicant that it may find that his purpose in attending was to strengthen his protection visa claims (s.5J(6)), which would mean that it would have to disregard any such religious activities for the purposes of considering his refugee claims (while explaining that it would not do so when considering his complementary protection claims). At the end of the hearing when the Tribunal asked the applicant if he had anything else to add, he said that he was not attending church activities to strengthen his protection visa claims. The Tribunal has considered this, but is not prepared to accept this assertion.
The applicant said that since at least 2010 he had planned to come to Australia. The Tribunal has found that he did not face any harm in China and considers that when he travelled to Australia in 2015, it was his plan to remain in Australia, and that he lodged a protection visa application, on the basis of a claimed Christian profile, seeking to obtain permanent residence in Australia. The Tribunal accepts that, in order to support his protection visa application, he has attended a minimal number of study group sessions and church services, and that at some stage he participated in a church choir. It does not accept that he has done these activities on a continuous basis, or more than occasionally, since his arrival in 2015. It has found that it was his motivation to attend such activities and that he has done so on occasion, because of his outstanding protection visa application. In this regard the Tribunal considers that if the applicant had been a regular attendee over a four year period at weekly Church services and weekly Bible study, he would have been able to tell the Tribunal more about his religion than he was able to.
The Tribunal is also not prepared to accept his assertion that he spread gospel at work or encouraged people from his work to go to church, on the basis of the adverse credibility finding.
For the purposes of the applicant’s refugee claims the Tribunal disregards the applicant’s attendance at religious activities/places in Australia on the basis of s.5J(6). Accordingly, in determining whether the applicant has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph s.5J(1)(a), the Tribunal has disregarded the religious activities and learning conduct engaged in by the applicant in Australia because the Tribunal is not satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee.
The applicant did not claim to the Tribunal that he would face a real chance of serious harm or a real risk of significant harm upon return to China for the reason that the Chinese authorities would be aware of his activities in Australia. The Tribunal has found that the applicant has engaged in minimal attendances at church/ study group/choir while in Australia to support a protection visa application. Thus, in considering his refugee claims, the Tribunal finds that he has not undertaken Christian activities in China, it disregards his limited Christian involvement and activities in Australia, and it does not accept that he will be motivated to be involved in Christian activities in China upon return. It has also not accepted that he was politically involved including with a petition and it is not satisfied that the applicant faces a real chance or real risk of being imputed with anti-government behaviour for any reason. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on the basis of religion or political views, nor for imputed religious or political involvement.
In this regard, the Tribunal notes that in the post hearing submissions it was requested that the Tribunal consider the “current unstable political and economic situation in China because whenever there is political upheaval, there will [be] inevitable campaigns to sweep and clear the possible opposition forces which always include religious groups who have done anything against the authorities”. There was no country information provided to this effect despite the applicant having an opportunity to do so before, during and after the hearing[19]. The applicant’s claims remained that he faced harm in China on the basis of the country situation because of his claimed profile; the Tribunal has not, however, accepted the applicant’s claimed profile, and it is not satisfied that without this claimed profile he faces a real chance of serious harm or a real risk of significant harm due to country conditions in China.
[19] The hearing invitation sent on 18 July 2019 stated that the applicant was requested to provide to the Tribunal all documents, evidence, and submissions upon which he sought to rely by 8 August 2019. At the hearing the applicant did not produce any country information, nor did he do so after the hearing despite being given time to provide further submissions after the hearing.
The Tribunal notes that the applicant claims to have been previously employed in China, which the Tribunal is prepared to accept, and that he has been employed in Australia. It is not prepared to accept on the evidence before it that the cost of living in China means that he faces a real chance of serious harm or a real risk of significant harm in China. The Tribunal does not accept that he faces a real chance of serious harm or a real risk of significant harm on the basis of employment or the economic situation, as it considers that he would return to his previous location in the same circumstances as before, and that he would continue to work and earn a living. The Tribunal is not satisfied as to the evidence of his province, family details, marital status, past employment; it is not satisfied that he has been honest and forthcoming concerning his circumstances in China. This restricts the Tribunal’s ability to consider all of his circumstances, however the Tribunal is not satisfied that he suffered serious or significant harm in China previously nor that he came to anyone’s adverse attention. It considers that he will be returning to the same circumstances in China from whence he came, and the Tribunal is not satisfied that on the evidence before it this means that the applicant faces a real chance of serious harm or a real risk of significant harm for economic or financial reasons.
Even if the Tribunal gave the benefit of the doubt to the applicant and accepted that he was from Fujian Province (which it does not) the Tribunal is not satisfied that this means he faces a real chance of serious harm or a real risk of significant harm. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason, including his place of origin about which he has not been honest, but to which the Tribunal considers that he will return and in which province the Tribunal is not satisfied he has previously had any adverse attention or profile with the Chinese authorities.
The Tribunal does not accept the applicant’s claim that he would need to relocate and that he could not do so because the cost of living is high, he cannot obtain a job or reasonable costs of accommodation, hospitalisation, and education due to the hukou system in China.
Having regard to the Tribunal’s findings that the applicant’s limited religious activities in Australia have been undertaken for the purposes of his protection visa application; that he was not involved in any religious or political activities in China, and that he will not be motivated to be involved in any such activities on return, that he has worked in China (and Australia) and that he will again work upon return, the Tribunal does not consider that country information (or submissions) relating to religion or politics or security or the economic situation indicate that the applicant faces a real chance of serious harm or a real risk of significant harm[20].
[20] Some extracts from the DFAT Report are provided in Annexure B.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
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) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant (or his father or family members) are religious or political or have experienced any of the past harm or threats or harassment or interference as claimed.
In considering his complementary protection claims, the Tribunal does not disregard his activities in Australia. It has found that he has not undertaken Christian activities in China, and that although he has undertaken some limited Christian activities in Australia, he has done so in order to strengthen his claims, not because of a genuine interest in Christianity. It was not suggested by the applicant that his activities in Australia would be known to the Chinese authorities which would lead to him facing a real risk of significant harm, and the Tribunal considers that if he had any significant involvement in a Chinese Christian church/gatherings in Australia, it is likely that he would have made such a claim. The Tribunal is not satisfied, on the evidence before it, that it is likely (or otherwise) that this particular applicant has come to the attention of the Chinese authorities as a result of his limited religious attendances throughout the years he has been in Australia leading in turn to a real risk of significant harm.
The Tribunal does not accept that there is a real risk that he faces being considered as a genuine Christian.
The Tribunal has accepted that the applicant is a Chinese male with qualifications and work experience. It considers it likely that he has family in China however it is unable to make specific findings in this regard given the unreliability of the applicant’s evidence and documents. Apart from these matters, the Tribunal has not accepted his claims indicating that he faces a real risk of significant harm relating to religion, politics, financial or economic matters.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason in China.
On the evidence presently before it, 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 a receiving country, in this case China, there is a real risk that he will suffer significant harm for the purposes of 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).
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 criteria in s.36(2).

DECISION

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

Christine Cody

Member

ANNEXURE A – CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in s.5J(2)–(6) and ss.5K–5LA, which are extracted below.
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 s.36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.84, 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.
…
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.
…
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.
…
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.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36 Protection 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.
…
ANNEXURE B – EXTRACTS FROM THE DFAT REPORTS
Concerning the security situation, the DFAT Report[21] states as follows:
[21] Both DFAT reports state this.
Gaining support for CCP policies throughout the country and maintaining social stability are top priorities for the CCP. To achieve this, the government deploys a vast internal security apparatus. China’s internal security agencies include: the Ministry of Public Security, which is responsible, inter alia, for the police, border security and household registration; the Ministry of State Security, the main intelligence agency; the People’s Armed Police (PAP), a paramilitary force responsible for internal security; and the People’s Liberation Army (PLA), China’s military. In November 2013, President Xi Jinping established a new National Security Commission to strengthen coordination of both international and domestic security issues.
There is also reference to the China’s National People’s Congress Standing Committee having passed a new national intelligence law (June 2017, amended 2018), which empowered security agencies to launch intelligence operations in China and abroad; to collect intelligence on foreign bodies ‘engaged in activities that may harm China’s national security or its interests’ and to monitor suspects[22]. There is also a reference to the Chinese authorities “likely” being aware of the behaviour of Chinese asylum seekers when abroad (without clear explanation as to how this assessment is reached for each individual asylum seeker).
[22] Paragraph 2.32 old DFAT Report and paragraph 2.60 new DFAT Report.
Concerning employment and the economic situation, the Tribunal notes that the DFAT Report[23] states that:
[23] Both DFAT reports state this.
China’s reported unemployment rate has been consistently around 4.1 per cent since 2011. This rate counts only registered workers with an urban household registration and does not include urban workers holding a rural registration, nor workers in rural areas. The official retirement age is 60 years for men and 55 or 50 years for women…