1615525 (Refugee)

[2019] AATA 6560

1615525 (Refugee) [2019] AATA 6560 (26 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615525

COUNTRY OF REFERENCE:                   China

MEMBER:Christine Cody

DATE:26 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2019 at 8:55am

CATCHWORDS
REFUGEE – protection visa – China – religion – underground church membership and activity – harassment by police – no response to Tribunal communication and attendance at hearing – credibility – inconsistent evidence – travel to another country without applying for protection there – delay in applying for protection, including period of unlawful residence – church activity in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 441A(4), 426A

Migration Regulations 1994 (Cth), Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant, who claims to be a citizen of the Peoples Republic of China (China), applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 4 December 2015. A delegate of the Minister for Immigration decided to refuse to grant the application on 26 August 2016. This is an application for review of the delegate’s decision. The relevant law is at Annexure A.

   The Department

2. The Department of Immigration (the Department) file contains various documents including the applicant’s protection visa application forms, a written statement setting out the applicant’s claims for protection, a recording of the Departmental interview, and a copy of the delegate’s decision record.

3. There are no non-disclosure certificates on file.

   Migration history

4. The applicant was granted [temporary] visa [in] March 2015. The applicant arrived in Australia [in] April 2015. The applicant’s visa ceased [in] July 2015. The applicant remained in Australia unlawfully, and applied for a protection visa on 4 December 2015. The applicant was granted a bridging visa on 24 December 2015[1].

   Background and claims – written

   [1] Sourced from the delegate’s decision record provided to the Tribunal by the applicant as well as the protection visa application forms.

5. According to the application forms, the applicant’s background and claims can be summarised as follows:

   ·     The applicant was born in [year] in Chengdu City, Sichuan Province, China. The applicant is a Christian of Han ethnicity, who speaks, reads, and writes Mandarin.  The applicant married in December 2002 in Sichuan. 

   ·     The applicant lived in a village in Sichuan from January 1985 to April 2015.   He completed middle school in July 1992 in Sichuan. He worked as [an Occupation] from July 1992 to April 2015.

   ·     At the end of 2013, the applicant got to know underground Christianity through a friend. The Bible made him feel peaceful and he started to believe in God and attend an underground church through a friend.

   ·     [In] September 2014, the applicant held an underground meeting at his home, attended by seven other people. However, the meeting was reported to the police by neighbours, and the police turned up after the meeting was over and arrested the applicant, who was “illegally taken” to the Chengdu City Detention Centre.

   ·     The applicant was held in solitary confinement, and was not allowed to sleep for eight days. The guards then forced the applicant to stand continuously for two days and nights, and took turns torturing the applicant and attempting to coerce the applicant to renounce his beliefs and write a guarantee statement. The applicant sustained severe injury to his lower back and legs from the beatings.

   ·     The applicant endured abuse, isolation, starvation, toilet use restriction, sleep deprivation, beatings, and psychological abuse, leaving the applicant wounded, with near-blindness, stunted speech, and his hair turned white.

   ·     The applicant was eventually released [in] October 2014, and fined [amount] yuan.

   ·     Following the applicant’s release, police and village officials followed and watched the applicant, especially on days such as Party Congress and public holidays, because he did not renounce his beliefs. The applicant’s family also did not live in peace. The applicant planned to leave to escape the harassment and spare his family, and so went to [Country] in early 2015 but could not find an opportunity to escape.

   ·     The applicant then came to Australia.

   ·     He will use his personal experiences to expose the Chinese Communist Party’s (CCP) crimes against humanity to the world and to expose the brutal tortures and abuses that have taken place in China and continue to this day.

   ·     The applicant’s mother, father, [sibling], wife, and [child] remain in China, and the applicant is in contact with them by phone.

   ·     The applicant fears harm because of the CCP’s ruthless persecution of underground Christians.

   Interview with delegate

6. The applicant attended an interview with the Department on 18 August 2016.

7. Some of the applicant’s evidence at interview, and the delegate’s questions, are set out in the delegate’s decision record as follows:

   ·     [The applicant] travelled to [Country] [in] January, 2015 to see whether it was possible for him to live there but he thought that [Country] was not better than Australia;

   ·     I asked the applicant why it was not better to which he responded that he could not stay there long because he did not know anything about [Country];

   ·     I put to the applicant that he had never been to [Country][2] before to which he responded, no;

   [2] This should state “Australia”.

   ·     I asked the applicant then how did he know that Australia was better to which he responded that he knew many people who had been to Australia and they said it was much better;

   ·     I asked the applicant why he went to [Country] then to which he responded he went to [Country] first and later he heard that information;

   ·     I put to the applicant that he was in [Country] first to escape so why didn't he escape to which he responded that he didn't escape;

   ·     he thought Australia was much better in every respect to see whether he could permanently live here, it is a very good environment and has fresh air and the Australian government is very good;

   ·     I put to the applicant that he had to have a reason to make an application to stay in Australia and I asked him what was his reason to which he responded that the reason was that it is much better in Australia than China to live;

   ·     he came to Australia and decided to stay as he thought the Australian government was good and the people are very friendly;

   ·     he went to a migration agent to make an application…and he said that he wanted to stay here because Australia is much better than China and asked her to lodge his application. She told him that it was a refugee application;

   ·     I asked the applicant if she had told him on what basis she could lodge that application to which he responded that he explained to her his story in China and that is why he wanted to come to Australia;

   ·     he told her that in 2013 he tried to join the Christian religion and he was introduced by his friends and in 2014 he found that the religion was good so he participated in the activities but he was reported to the police by his neighbours and they came to his house because they had a record of his action;

   ·     they came to his home [in] September, 2014 and they found some learning materials in his home about Christianity so they arrested him and took him to Chengdu police station where they tried to intimidate him and told him the bad points about Christianity, why that religion is no good;

   ·     the police beat him and asked him to write a confession to say that he is sorry and would not repeat this business in the future;

   ·     he was kept in the police station for about one month and later he had to pay about 5,000 yuan and he was released [in] October;

   ·     following his release the head of the village and the police would be watching him all the time and as he felt that he had no freedom in China he could not stay there any longer so he lodged his application to go to [Country];

   ·     I asked the applicant if he intended to go to [Country] to escape China to which he responded not to escape, he did not really go there to escape it was a holiday, like a tourist;

   ·     I asked the applicant if he went to [Country] so he could get a travel history so that he could come to Australia to which he responded, you could say that way;

   ·     I put to the applicant that according to his statement he claimed that he went to [Country] but could not find an opportunity to escape to which he responded no, not true;

   ·     the applicant asked if it mentioned escape and I said to the applicant that according to his statement he went to [Country] but he could not find the opportunity to escape and I asked him if that was incorrect to which he responded that he had an idea that Australia was better so he came to Australia;

   ·     he wrote his statement in Chinese and asked the solicitor to translate it into English which she did and then she read it to him;

   ·     I asked the applicant if she said that to him in his statement that he went to [Country] but he could not find the opportunity to escape to which he responded that he did not remember if it was in there, he did not remember;

   ·     I put to the applicant that it should not be there then because it is not correct to which he responded that he could not remember exactly that thing;

   ·     I asked the applicant if he had the Chinese statement which he wrote and he said that he will try and find it on his phone; (the applicant showed the interpreter a statement in Chinese characters on his phone which was his story of what happened to him in China. The interpreter translated the first two paragraphs of the Chinese statement from the applicant’s phone and it appeared to be roughly the same as the English translation submitted by the applicant.)

   ·     I asked the applicant if he had sent that statement to the agent or whether the agent had sent it to him to which he responded that it was written by him and sent to the agent;

   ·     I asked the interpreter to read from the second last paragraph and he stated that in 2015 he went to [Country] but he could not find the opportunity to escape but thanks to God in [April]  2015 he came to Australia;

   ·     I put to the  applicant that what I had put to him before was what appeared in his statement that in 2015 he went to [Country] but could not find the opportunity to escape to which he responded that he said that he could not remember clearly;

   ·     I asked the applicant that he wrote it and if he wrote that he went to [Country] to escape then he should remember to which he responded that he really wanted to escape but he did not have the opportunity because the environment and living conditions were not good. I put to the applicant that then he did not really want to escape to which he responded that is correct;

   ·     I asked the applicant how the Bible gave him a peaceful life and so he began to believe in God, as per his statement to which he responded that yes. I asked the applicant to tell me about the Bible to which he responded that the Bible is different in China to the western countries, in Australia people talk about it in English and in China it is Chinese, different version. I asked the applicant to tell the interpreter in Chinese and he would interpret it into English to which he responded that actually the Bible says that the people have very calm, no other thoughts;

   ·     I asked the applicant to tell me how the Bible was made up to which he made no response;

   ·     I asked the applicant if he knew anything about the Bible to which he responded a little bit, he told me just now that is all, that the Bible keeps people calm;

   ·     The applicant did not know how many books the Bible consisted of, or the two parts of the Bible;

   ·     I asked the applicant whether he read the Gospels to which he responded that sometimes when he had time he read it but did not fully understand it and he did not know who wrote them, he had no idea and he could not say anything else about what he had read in the Bible;

   ·     I put to the applicant that he knew nothing about the Bible to which he responded, only a little bit;

   ·     I asked the applicant to tell me the little bits to which he responded calm, he gets a calm feeling after reading it, in Australia he just listened but did not read much;

   ·     I put to the applicant that if he knew nothing about the Bible then then chances were that he was not a Christian and was it the case that he fabricated his claims that so he could make an application to which he responded not really because he had to learn slowly;

   ·     I asked the applicant what it was that he believed in as a Christian to which he responded that he believed in God and he did not know other things;

   ·     I put to the applicant that his sum total of his knowledge of Christianity was that he believed in God to which he responded yes and there was nothing else he could say;

   ·     I asked the applicant what injuries he suffered whilst he was tortured and detained to which he responded that they beat him on his leg and he had some bruise and not other much big ones;

   ·     I put to the applicant that according to his statement that it left him with wounds and near blindness in both eyes to which he responded that he forgot it, they beat his head and his chest and his legs, and it was at that time that they beat him that he could not see anything and he had no other injuries;

   ·     I put to the applicant that according to his statement he had stunted speech to which he responded that at the time he was released he did not want to talk much and he had no other injuries and nothing else happened to him;

   ·     I put to the applicant that in his statement he said that his black hair turned white to which he responded that because he was angry maybe that was the reason. I asked the applicant did his hair turn white or not to which he responded very little, not much. I asked the applicant if it had gone black again to which he responded it is dyed, sometimes he does it himself and sometimes other people helped;

   ·     I asked the applicant if he was making this up to which he responded, no. I asked the applicant why he would write that in his statement when his hair was black to which he responded there was a little bit of white. I put to the applicant that there was no white in his hair that I could see to which he responded dyed, dyed. I put to the applicant that I thought he was making it up to which he responded, no;

   ·     It was noted that he was followed around by officials on his release on days like the national congress and national holidays to which he responded yes;

   ·     I put to the applicant that there was no national congress in 2015 or 2016 to which he responded in China on national major events or periods the police would follow him;

   ·     I asked the applicant what was the first national day or event that he was followed to which he responded in December, 2014 he was followed by the village head and chief of police but he could not recall what day that was because he was followed so many times;

   ·     I asked the applicant if January 1 was a sensitive day to which he responded it should be a sensitive day because the people are celebrating the New Year’s Day and he was followed on that day. I put to the applicant that that was the day he went to [Country] and so they did not follow him very well to which he responded that he told them that he was going as a tourist so they did not stop him, he told them that he was going abroad for a holiday for tourism so they let him go;

   ·     I put to the applicant that he says in his statement that he now had the chance to expose the crimes of the CCP against humanity to the world and he could use his personal experiences to expose their unprecedented brutal tortures and abuses to which he responded yes. I asked the applicant how he had done that in the year and a half he had been in Australia to which he responded through the internet to his friends circle, he sent all this what he had written to his friends;

   ·     I put to the applicant that they already knew that, they were in China but he was going to expose it to the world to which he responded that he did not know how to send it to the world and no, he had not done it;

   ·     I asked the applicant how he practiced his Christianity in Australia to which he responded that he went with his friend to [Suburb] but he did not know the address, to listen to their teaching. He last went about two weeks ago, maybe on Monday;

   ·     I put to the applicant that Christian services are normally held on a Sunday to which he responded that sometimes it is held on a Sunday but he does not have time so he went there on Monday, there were a lot of people in the church. I asked the applicant what the priest said to which he responded he said a lot and he could not remember, and when asked if he could remember anything the priest said, he said he could not because he had a very poor memory;

   ·     I asked the applicant what about before that to which he responded that when he was in China he learned a bit about Christianity, he learned about the Bible they read the Bible but he did not know the specific contents but he knew only the general picture about it;

   ·     I asked the applicant to give me the general picture to which he responded that basically the Bible told the people how the God well treated the world, to be kind to the world and people;

   ·     I asked the applicant why it was that he did not have time to go to the church sometimes to which he responded that sometimes he went sightseeing with his friends and when I asked if he went sightseeing he did not have time to go to church to which he responded, not really;

   ·     He works in Australia doing casual jobs on a [work] team whenever he has time he goes there. He works four or five days a week, helping the [workers] to bring the materials around for which he gets paid one hundred dollars a day, by which he supports himself in Australia;

   ·     I put to the applicant that I did not believe that he was a Christian and he knew nothing about Christianity or the Bible notwithstanding that it was the Bible that gave him peace and was the reason for him becoming a Christian, therefore I did not believe that he was a Christian or suffered persecution or that he had any reason to fear returning to China, as he displayed when he went to [Country] and returned to China because he did not like the lifestyle and I asked the applicant if he had anything further to say about his claims to which he responded that he had nothing to say but he wanted to make an application to settle in Australia, to live here;

   ·     I put to the applicant that I was of the opinion that I thought that his claims were a fabrication to which he responded, no;

   ·     he did not discuss with his agent whether there was any other application that he could make;

   ·     It was his lawyer/solicitor that suggested that he should make the application;

   ·     I put to the applicant that he approached his solicitor to make an application to which he responded, yes he had heard about a refugee application before;

   ·     If he returns to China he does not have freedom;

   ·     I asked the applicant if he had any other reason to fear to return to China to which he responded yes, the main was that he would be followed or supervised by the local government and he would lose his freedom because he joined the Christianity in China;

   ·     another reason is that life in China is not better than in Australia, the air in China is bad and also other things are no good;

   ·     I put to the applicant that these are not refugee claims to which he responded that there is official corruption in China and he agreed that everybody in China lived under the same circumstances and in China whatever you wanted to do you had to pay money and when I put to him that everybody had to do that not just him he responded that he thought that in Australia it is different;

   ·     the applicant stated that he last dyed his hair about three weeks previous so I asked him why there was not any re-growth to which he responded that it does a good job and there was not many white hair;

   ·     I put to the applicant that I did not think there was any white hair and he had just made it up to which he responded not many, when she wrote the statement I told her not many at all. I put to the applicant that he wrote the statement and sent it to her and it is the same statement as is on his telephone to which he responded yes. I put to the applicant that he had written the statement and said that his hair had turned white to which he responded that maybe he had made a mistake and not written it clearly.

1. The delegate refused the application on 26 August 2016 as he found the applicant’s evidence at the interview inconsistent with his written claims, and that the applicant demonstrated a lack of knowledge in regards to his written claims, and that he had a lack of knowledge of the Christian faith and the bible. The delegate did not accept that the applicant became a Christian nor that he suffered persecution at the hands of the Chinese government. On that basis, the delegate found that the applicant was not a refugee nor was he owed complementary protection obligations.

   The Tribunal

2. The applicant provided to the Tribunal an online application for review form and a copy of the delegate’s notification of decision and decision record. There were no other documents provided to the Tribunal by the applicant.

3. In the Tribunal’s acknowledgement of application letter dated 23 September 2016, sent to the applicant by email to the email address for himself and his authorised recipient on the application for review form, the Tribunal emphasised that it was important that the applicant inform it immediately if he changes his contact details, including his email address. The Tribunal also noted that if the applicant had materials or written arguments to be considered, they should be provided as soon as possible. No material or written arguments were provided to the Tribunal.

4. On 8 July 2019 an invitation to attend a hearing on 23 July 2019 was sent to the applicant at the email address for correspondence. In that hearing invitation, the Tribunal advised the applicant that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at the hearing. The invitation stated that he should provide all documents, evidence and submissions upon which he sought to rely by 17 July 2019, and that he should advise the Tribunal as soon as possible if he was not able to attend the hearing, and that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice to him. The applicant did not respond or provide any documents or evidence to the Tribunal.

5. The applicant did not appear before the Tribunal at the time and place of the scheduled hearing on 23 July 2019. After the applicant did not attend the hearing, a case officer called the telephone number provided for the authorised recipient (no telephone number was provided for the applicant himself in the review application form). The following file note was recorded:

   I attempted to call the number listed for the recipient to follow up regarding the applicant's non-appearance. I rang the number ( [number]). The number rang but there was no answer, and no opportunity to leave a voicemessage. There was an automated message which informed me that my number (9276 5000) would be sent in a text message to the number.

6. The applicant (or his authorised recipient) has not contacted the Tribunal after the scheduled hearing date to offer any explanation as to why the applicant did not attend the hearing. Having reviewed the Tribunal file, the Tribunal considers that the applicant was informed that a decision may be made if he does not attend or contact the Tribunal, and that he should keep his contact details updated with the Tribunal.

7. The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.441A(4) of the Act, and the invitation has not been returned to sender. In the circumstances described above, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Country of reference

8. The applicant provided his passport issued by the Chinese authorities to the Department and the Department accepted that he was a Chinese citizen and national of China, and assessed his claims against China. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of China, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is China.

   Credibility of claims

9. 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.

10. 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.

11. 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).

12. In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

13. The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to China.

15. The applicant provided written and oral claims to the Department.  The delegate refused his claims. He had been advised by the Tribunal that it had insufficient information before it to make a favourable decision on his behalf. Yet, he did not provide anything further to the Tribunal nor did he attend the hearing where he might have had the opportunity to provide necessary details of his claims. In these circumstances, a number of relevant questions about his claims remain unanswered, including as set out below.[3]

    [3] All references to the applicant’s evidence at interview are sourced from the delegate’s decision record that the applicant provided to the Tribunal. He did not provide any further documentation or submissions suggesting that the contents of the delegate’s decision record were incorrect.

16. The Tribunal was concerned with the inconsistent and changing evidence as to why the applicant went to [Country]. The Tribunal notes that this occurred after he claims he suffered torture while detained at the hands of the Chinese authorities, he was not able to live thereafter in peace and he was being monitored. The Tribunal notes that initially he claimed that he went to [Country] to escape from China, but at the interview with the delegate his evidence was changing, as set out above, ranging from his desire to go there for a holiday to have a break, or to assist him in obtaining a visa for Australia, or not to escape. The Tribunal considers that if the applicant had suffered as claimed, it is unlikely that instead of trying to leave China on a permanent basis, he would have pursued a holiday to [Country], or, once he was in [Country] (a country where he could be safe and practice Christianity), that he would not have claimed asylum there, instead returning to China, a country he says engages in ruthless persecution of underground Christians and where he has already been severely tortured.

17. Further, if the Chinese authorities were concerned that the applicant had not repented his Christian beliefs, it is hard to understand why, as claimed at interview, they would allow him to travel to [Country], a country where he would be free to experience Christianity, and then not detain or even question him upon return. 

18. The Tribunal also had concerns about the inconsistent evidence as to the injuries suffered by the applicant according to his statement and his interview (as set out above). The injuries described in his statement appeared much more significant than what he described at interview, and his evidence at interview about his hair turning white but then being black appeared difficult to accept, as was his claim to the delegate that he forgot that he had been nearly blinded in both eyes as a result of being detained.

19. Further, when the delegate asked the applicant why he wanted to come to Australia, his response was not an immediate reference to any fear of persecution; instead he said that it is a very good environment and has fresh air and the Australian government is very good and it is much better in Australia and the people are friendly. The Tribunal would consider that if the applicant had experienced torture and feared persecution if he returned, he would have referred to this as his reason for coming to Australia.

20. The Tribunal also had some concerns about the applicant’s knowledge of Christianity and the Bible as shown at the delegate’s interview. While accepting that care must be taken in considering this issue, and being mindful not to apply a high standard of required knowledge, it appears that the applicant was only able to tell the delegate that the Bible calms people, and that he believes in God, and kindness in the world. Given that it is his claim that he got to “know” underground Christianity through a friend, he  gained an interest in it, he started to believe in God, he attended an underground church, that he had learning materials at his home, he had engagement with the Bible and he had organized a gathering at his home in China, and that his involvement in China was for at least a nine month period, as well as his claim that he had attended church sometimes in Australia (and he had been in Australia for about 15 months by the time of the interview during which time he would have had an opportunity to explore/further understand Christianity), the Tribunal considered it difficult to understand that he was not able to say more about Christianity, in particular noting that the delegate had put to him a concern that he was not a Christian, and that he had been offered a chance to respond to that.

21. The Tribunal has taken into account his claim that he has to learn slowly and that he has a poor memory however, it notes there is no independent evidence to this effect, and it is not prepared to accept these assertions on the evidence before it.

22. Finally, the Tribunal was concerned with the applicant’s delay in lodging a protection visa application after his arrival (eight months) and in particular noting that he became unlawfully present five months before he lodged his application. The Tribunal considers it difficult to understand why, if he had a genuine fear of persecution, he did not seek advice and lodge an application for protection earlier.   

23. On the evidence before it, the Tribunal is not satisfied as to the applicant’s claims of the events which he says occurred in China. It does not accept that he became a Christian either in China or in Australia, had adverse encounters with the authorities, was detained and tortured and monitored, and needed to escape China. It is not satisfied on the evidence before it that he suffered any harm. It does not accept that he has communicated with friends or others about the persecution of Christians by the Chinese authorities nor that he has had or has any desire to do so. The Tribunal is not satisfied that anyone has had any adverse interest in the applicant while he has been in Australia nor that he has been attending Christian services or engaged in exploring Christianity. The Tribunal is not satisfied on the evidence before it that the applicant would have any interest in Christianity upon return.

24. The Tribunal has considered the country situation as set out in the Department of Foreign Affairs and Trade report to which the Tribunal is required to have regard; however as it is not satisfied as to the majority of the applicant’s claims, and it does not accept that he has suffered harm in the past nor that there is evidence to support that a person of his profile faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future in China, it does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason. The Tribunal is not satisfied that the applicant faces a real chance or real risk of harm amounting to serious or significant harm as a result of the authorities generally, corruption, pollution, or a lack of friendliness of people or any other reason.

25. The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm or a real risk of significant harm in China. 

26. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, 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 for any of the reasons put forward by him.

27. The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in China. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Complementary protection criteria

28. 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) of the Act. As discussed above there remain many questions unanswered in relation to the applicant's claims. Insufficient detail has been provided for the Tribunal to be satisfied that the claims are credible. The Tribunal is not satisfied on the evidence before it that he faces a real risk of significant harm in China for any reason.

29. Accordingly, 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).

30. There is no suggestion that the applicant satisfies s.36(2) of the Act 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

31. 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 ss.5J(2)-(6) and ss.5K-LA, 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 ss.36(2A) and (2B), which are extracted below.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Extract from Migration Act 1958

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

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)   significant physical harassment of the person;

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

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

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

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

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

    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.

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …